Get Ready for the Train Wreck to Happen

Saturday, September 25, 2004 | 0

The following is a letter/editorial by Steve Pierce, one of the principles in VocAide and an industry veteran of over 20 years. Steve uses his industry experience to make some compelling arguments about the future of claims handling in light of the vocational voucher system, and some unintended consequences of SB 899.

As we QRRs, soon to to be VRTWCs, go about our daily professional endeavors trying to do right and feeling like Rodney Dangerfield, the "I don't get no respect" poster child, I detect a sense of malaise throughout the industry, even hiding our heads in the sand. The changes are so vast throughout the WC landscape, professionals in claims and rehabilitation are in a quandary as to what to do, let alone anticipate what might happen. Rumors and falsehoods are in abundance. How is your stomach acid so far? I was in claims for 10 years and let me give you some perspective... OK, maybe some crystal ball gazing on Facts and Falsehoods!

Falsehood #1: Since voc rehab is dead and VRMA is not in the picture, no one will use the voucher (SJDB) for 2004 injuries. In November and January there will be a new Permanent Disability Schedule and it is likely AMA guidelines will define Unscheduled Impairments (namely spine disabilities) in terms of a formula considering loss of earning capacity (LEC). This is life in Arizona WC as I remember. This opens up expert testimony on wage expectations and a very interesting scenario.

Claims people and defense attorneys are going to wish for the old PD schedule as they struggle with wage loss liability in a land of no voc rehab and employers with no modified work. The voucher and direct job placement will all of a sudden be the rage in claim departments in order to avoid LEC exposure. Watch for the Voucher to be utilized during TTD/TPD because DJP did not work. The carrier needs a real skill through training by voucher to keep LEC exposure to a minimum. This happened in Arizona and it probably is going to happen here in California. The Devil is in the details so watch the new regulations in November and hope I am right.

Falsehood #2:The Voucher issuance does not need a vocational counselor to recommend a training school goal to the employee.

Wrong! Now we all know it is not mandatory to have a counselor, and worse it is up to Divine intervention for the all knowing and seeing injured worker to part with 10% of the tuition to seek counselor intervention. Not likely, right?

Let's assume our usual 47-year-old lady with bilateral carpal tunnel syndrome (non surgical) who enjoys the Internet at home is now P&S. She has a spouse who works so she wants to go to school and use the $6000 voucher. No counselor is requested because she wants to go to the school a mile from her house that had the beautiful TV commercials. The voucher is signed and the employee is enrolled. The program is learning MS Office software. The admission's person promises voice command software training. Meanwhile claims is waiting for the P&S report and maybe in 6 to 8 months there might be a C&R with a Rogers finding.

The train wreck about to happen. The school is not aware of the employee's disability, yet they gladly helped the employee sign off on the voucher asking the WC claims person pay the tuition as the voucher requires. Due to excessive keyboarding, the energetic student is starting to have problems. The schoolteacher says the student needs to learn Word first before training in voice command so hang in there. The student's condition worsens and she returns to the doctor seeking more treatment. The claims person is very reluctant and thinking apportionment due to causation. Let's blame the school. The doctor tells the student that he is not authorized to reopen treatment because of causation by the school. There is a new problem and surgery is required. The employee's attorney files for new and further and new TTD making a mess of the claims file. It so happens since WC is real slow in Legal Land; the smart attorney sees negligence on the part of the vocational school and a very good cause of action in civil court. The carrier is protected under exclusive remedy under the WC law and so is the policyholder, maybe?

The school gets a legal notice by the plaintiff attorney (friend of WC attorney) demanding to know their General Liability carrier and Professional liability carrier because of the following reasons:

The school had notice the employee was a WC injured employee with some disability. The school did not seek medical reports because they don't have the authority to receive medical reports (no one on staff is a counselor). The school did not advise or confer with the WC carrier to learn of the impairment and if the curriculum was appropriate. The school did not seek a medical opinion or release to engage in the training program. The school did not go over a job analysis with the employee to cover in detail what the tasks might be. The school failed to provide due care in prevention of worsening a condition. Negligence is notice and failure to provide due care.

The school wants to get rid of the trouble-causing student so due to a violation of policy the student is dismissed, voucher not paid back. Furthermore they bill the student for the tuition balance owed since the WC carrier is not paying in full. The lawsuit complaint is sent to the school's insurance company. Their lawyer files a cross complaint lawsuit noting the school is not at fault, but the WC carrier had notice and failed to act knowingly withheld and failed to inform the school of the impairment and likelihood of a worsening situation. The plaintiff attorney is happy because the Deep Pockets Defendants are blaming each other and the WC Carrier loses on exclusive remedy relief in the courts.

So is this scenario likely? I leave it to professionals to sort out the technicalities and possibilities. I believe it is probable because I sat on a subrogation liability desk for years. Bet on it. How does the claims person prevent this from happening?

When an employee applies for a voucher, the WC claims person has the employee agree to utilize a counselor not affiliated with the school to obtain medical clearance before enrollment. The school is advised before enrollment and special arrangements are agreed upon. No negligence!

It is likely if claims people learn of the above "train wreck" scenario and engage in good preventative risk strategy, the customary use of a counselor will ensue as mandated by the insurance company's policies. It may not be law, but good claims practice will make it mandatory.

Article by Steve Pierce, MS CRC Vocaid, Inc., Van Nuys, CA. Steve can be reached at 818 947-1753, or by e-mail at Steve@vocaid.com.

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