Controlling the Fire - PowerPoint Presentation

Slide1

Controlling

the

Fire

Before

it

Spreads

(

effective

claim

management

)

Slide2

Introduction

About Me

About this presentation

Helpful tips - not legal advice – different depending on circumstances - always consult your attorney

Slide3

The Spark Ignites

Es

and Is: Expect

every

claim will go to litigation

If you do, they won’t; but if they do, they won’t go far

Slide4

Employer Actions

E: Get a written statement, get witness statements, immediately report to

I

If possible, take photos of Worker and area

Do NOT direct care; remove any references to Employer-directed

care

Treatment of Worker

Sympathy goes a LONG

way

Disciplinary Actions (no special

tx

)

Less important due to

Hawkins

, but still

helpful (credibility)

Slide5

Insurance Investigation

Obtain from Worker

Recorded Statement (keep audio

and

get transcribed)

Hobbies, interests, ADL’s,

concurrent employment

Secure every possible method of contact (phone, cell, email. etc.)

Prior WC Claims

Is there anyone else in the household on disability?

Criminal,

educational

, previous job duties

(

Last ten years is relevant [SVP]

)

Slide6

Insurance Investigation

Obtain from Employer

Wages!

7 months of gross wages prior to accident, broken down by pay period

Any

wages post-accident

Time cards

Does the timecard say there was an accident?

Personnel file

,

Job-Application

, I9, relevant Policies/Procedures

Job description or confirmation of DOT

Supervisors/Witnesses contact information

Pictures of the WC Posters

Slide7

Insurance Investigation

Discuss with the Employer

Claim suspicious? If so, why?

Was it properly reported?

Have the proper forms been filled out by Employer?

Are the posters correct

with

the half-sheet report?

Do NOT direct care!

Able to accommodate?

Confirm no concurrent employer

Slide8

Notice: Poster Requirements

NMSA 52-1-29

B

. Each employer shall post, and keep posted in

conspicuous places

upon his premises

where notices

to employees and applicants for employment are customarily posted

, a notice that

advises workers

of the requirement specified in Subsection A of this section to give the employer notice

in writing

of an accident within fifteen days of its occurrence. The notice shall be prepared or

approved by

the director.

The failure of an employer to post the notice required in this subsection

shall

toll

the time

a worker has to give the notice in writing specified in Subsection A of this section up to but

no longer

than the maximum sixty-day period.

C.

The notice required in Subsection B of this section shall include as an attachment to it

a preprinted

form, which shall be approved by the director, that allows the worker to note and

briefly describe

the accident and sign his name

. The employer, any superintendent or foreman, or any agent

of the

employer in charge of the work where the accident occurred shall also sign the preprinted

form that

describes the accident. That signature shall not be a concession by the employer of any rights

or defenses

. It merely acknowledges receipt by the employer or his agent of the form signed by

the worker

. The preprinted form shall be prepared in duplicate so that both the worker and the

employer can

retain copies.

Slide9

Posters – REQUIRED

+

Slide10

Posters - REQUIRED

They are FREE from the NM Workers’ Compensation website.

Also see the “Importance of the Notice of Accident” by Judge Griego

http://www.workerscomp.state.nm.us/poster.php

No NOA form = No Poster

Slide11

Paper the Claim

Send proper

Howell

letter

Cite the statute

Confirmatory letters are insufficient

Certified mail

AND

other methods if possible

Benefit Explanation

Give Ombudsman info in ALL letters

Keep signed copies, not just word-processed versions. Also keep return receipt of certified mail

(and fax confirmations, sent items)

Slide12

Howell

, Historically

You snooze, you lose

Two months is not reasonable

Employer

deemed

directed, even to own PCP

Slide13

The

New

Howell

NMAC 11.4.4.11

(2) Selection of HCP:

(a) The employer shall decide either to select the initial HCP or to permit the worker to select the initial HCP. The decision made by the employer shall be made in writing to the worker. Employer may communicate the decision to select the initial HCP or to permit the worker the selection by any method reasonably calculated to notify workers. The employer may use a wallet card, a poster stating the decision posted with the WCA poster, a flyer inserted semi-annually with pay checks, or any other method employer reasonably believes will be successful in alerting the worker.

(b) If the decision of the employer is not communicated in writing to the worker, then the medical care received by the worker prior to written notification shall not be considered a choice of treating HCP by either party.

(c) Medical treatment provided to the worker prior to the employer’s written communicated decision to either select the HCP, or to permit the worker to select the HCP, shall be considered authorized health care, the cost of which shall be borne by the employer.

Slide14

Bad.

Slide15

Good.

Dear ___:

 

I am writing at this time to confirm that you have chosen the doctor to treat you for your work-related injury. According to Section 52-1-49 of the current workers’ compensation law, the employer/insurer has the right to either make the initial selection of health care provider, or they may waive their right to make the initial selection, and allow the worker to select a physician of their choice.

This

letter will serve to confirm that the employer/insurer has

not

chosen the initial doctor; instead,

we are allowing you to select the initial health care provider

. At the end of 60 days, from your

first

visit for this injury, the employer/insurer will have the right to change health care providers. If another health care provider is selected for you in the future, you will be notified by mail.

If

you do not understand, or disagree with anything in this letter, please contact me immediately at ____. You may also call 1-800-255-7965 or 505-841-6000 and speak with a Workers’ Compensation Ombudsman, who can further explain the health care selection laws.

 

Sincerely

,

[Send certified, and other methods if possible. Save copies of certified receipt/signature or other confirmatory documents]

Slide16

Paying Benefits

Use the actual wage ledgers (not handwritten form) to calculate AWW/CR

Pay what you think you owe

Don’t pay benefits based on the best case, unlikely scenario

(you don’t have to assume the worst either)

Failure to pay means more “benefit” will be obtained by Worker attorney in fees

Reservation of rights letters to approve one or two medical visits make E/I look more reasonable

Slide17

Complaint Filed

Prepare for Mediation

Send mandatory production to Worker and Mediator

Include wage records, pertinent medical, correspondence with additional

Howell

copies, job description, and DOT description

Talk with the employer – have an employer rep there

Estimate liability range

Slide18

Estimating Liability

Utilize the job description, previous jobs, and DOT to determine proper SVP

http://www.occupationalinfo.org

/

Look to

job application

or recorded statement for education level

True Story: HS grad becomes 8

th

grade dropout after accident

See if employer can accommodate

In-writing job offer, signed by W or via certified mail with deadline for acceptance

Slide19

Estimating Liability

Slide20

Loss of Use

Be Prepared - put together the range

Compensation Rate $333.33

Indemnity Weeks 150

5% $2,499.98

10% $4,999.95

15% $7,499.93

20% $9,999.90

25% $12,499.88

30% $14,999.85

35% $17,499.83

40% $19,999.80

45% $22,499.78

50% $24,999.75

55% $27,499.73

60% $29,999.70

65% $32,499.68

70% $34,999.65

75% $37,499.63

80% $39,999.60

85% $42,499.58

90% $44,999.55

95% $47,499.53

100% $49,999.50

Slide21

Loss of Use

Be willing to reasonably settle at mediation

Loss of use is a crapshoot

Guesstimation

methods:

3x the IR

Modifier formula

0% IR does not mean 0% LOU

Lucero v. Smith’s Food & Drug Centers, Inc.

, 118 N.M. 35, 878 P.2d 353 (Ct. App. 1994)

Loss of function (RTW and ADL’s) is the crux, along with sympathy of Worker

Slide22

Settlement Strategies

Utilize what you have

Is he still employed?

Does he love his job?

How would a prolonged battle affect his career?

Again, bring an employer rep to mediation –

bring a job offer!

Always willing to accommodate

Never too late to send a RTW offer

Slide23

Settlement Strategies

Find the driving force

Does he hate his job? Revenge?

Purely a money issue? Previous WC?

Spouse disabling the worker? Desire to relocate?

Desire to retire?

Anticipated layoff? Spouse retiring?

Quick settlement before mediation, representation, or even significant

treatment

Slide24

Settlement Strategies

It’s OK to make the first offer

Especially with

pro se

Workers

Not a tort claim – reality check

BUT don’t bid against yourself

Line in the sand = OK

If you have a settlement, lock it in with a hearing

If rejected RR, offer of judgment (yes you can do this yourself)

Makes attorneys reconsider cost of litigation, especially in LOU cases

Slide25

Call the Fire Dept.

When to get a lawyer

Worker has hired

unreasonable

counsel

When it becomes overly-complicated

If claim moves beyond mediation

If Worker seeks pre-litigation discovery

If Worker is accusatory pre-litigation

Reached agreement, refer for quick settlement document drafting

Slide26

Practical Tips

Prior to claim:

Remove any references to E directing care

Send new employee manuals

Ensure posters are in order

Ensure employees know proper reporting methods, ensure supervisors know post-accident measures

Slide27

Thank

you

.

For a copy of this presentation or more information, visit

www.elmorelawnm.com

Phone: (505) 225-3567