CT Claims and Blind Applications. Know When to Hold Em, Know When to Fold Em

Transcription

1 CT Claims and Blind Applications Know When to Hold Em, Know When to Fold Em

2 CT Claims and Blind Applications Moderator Ann Stephenson, Gallagher Bassett Services Panelists Carolyn Horton, Costco Wholesale Alex Rossi, County of Los Angeles Stuart Baron, Stuart Baron & Associates Nate Halprin, Tobin-Lucks, LLP

3 Important Facts for Handling CT & Blind Apps Claims must be reviewed individually, you can t use a cookie cutter approach Ask yourself What are you trying to achieve? Review the claim or claims for length of employment don t just look or review job title Long-term versus short-term employment makes a difference The claim staff must be the voice of the employer. Share pertinent information both medical and personal Include Job Analysis or Job Description

4 Important Facts for Handling CT & Blind Apps May want to accept the claim, given the facts, to maintain medical control Utilize resources and programs available that promote early resolution

5 CT Claims Experience and Cost From July 2012 to April of 2016, the County of Los Angeles Workers Compensation Program experienced approximately 7,000 reported continuous trauma claims. Such represents a rate of approximately 17.5% of all workers compensation claims reported. The Program s loss experience distribution rate (FY95/96-FY14/15) finds 15% of all reported claims account for 83% of total incurred amounts. There are 336 claims with total incurred exceeding $1,000,000. The combined total incurred of those claims exceeds $545,000,000. Of those claims, 148 have a major injury cause descriptor reported as cumulative trauma. The combined total incurred value of those 148 claims exceeds $243,000,000. Non-sworn positions account for 81 of the 148 claims with a major injury code descriptor of cumulative trauma. The combined total incurred value of those 81 claims exceeds $128,000,000. A review of the extracted information reflects that some of the identified 336 claims that were not identified as a cumulative trauma claim could be considered such.

6 CT Claims Challenges & Exposure An accident arises "out of the employment" where it is possible to trace the injury to the nature of the employee's work or to the risks to which the employer's business exposes the employee, and that it arises out of the occupation when there is a causal connection between the conditions under which the servant works and the resulting injury. (KIMBOL, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA, Respondent. A. No Supreme Court of California 173 Cal. 351; 160 P. 150; 1916 Cal. LEXIS 418) Section 3600, subdivision (a)(3), requires that for an injury to be compensable, it must be proximately caused by employment, with or without negligence. Proximate cause in workers' compensation means a contributing cause of the injury, which is less restrictive than in tort law. (McAllister, supra, at p. 418; Nash v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1793, 1809 [30 Cal. Rptr. 2d 454, 59 Cal. Comp. Cases 324].) Expanded exposure to medical expense: There can be no doubt that medical expense is not apportionable. Section 4600 of the Labor Code states that the employer shall provide such treatment which is reasonably required to cure or relieve from the effects of the injury, and section 4601 of that code provides that "All" of the doctor treatment shall be at the expense of the employer. Neither section 4600 nor any of the succeeding sections in the article of the code dealing with medical and hospital treatment state or even suggest that the employer may pay part of the [69 Cal.2d 406] expenses. (Granado v. Workmen's Comp. App. Bd., 69 Cal.2d 399)

7 CT Claims Real Example Patient - has a very strong family history of diabetes with both parents being diabetics The record demonstrates chronic obesity and non-compliance with treatment including homeopathic remedies resulting in a worsening of the condition In fact, it is medically most probable that claimant would have suffered these maladies at some point even absent her stressful career - But it ain't over until Emotional stress has been shown to be a significant risk factor for both diabetes and hypertension The excessive production of stress hormones results in an elevation of blood sugar It is medically probable that the patient experienced persistent elevations of stress during the 35 years worked for the County Employment contributed to the patient s diabetes, hypertension, and renal disease.- Recommendation: Settle the claim as efficiently and effectively as possible. Expanded exposure of California employers to CMS recovery efforts: The CMS Commercial Repayment Center (CRC) workload will expand to include the recovery of certain NGHP conditional payments where an applicable plan (a self-insured, liability insurer, no-fault insurer, or workers compensation entity or plan) had or has primary payment responsibility. The CRC will recover directly from the applicable plan as the identified debtor when the applicable plan reports that it has ORM or otherwise notifies CMS of its primary payment responsibility. See attached CMS report Future Enhancements pg. 4.

8 CUMULATIVE TRAUMA IS A STATUTORY CONCEPT ~ L.C Liability is Limited to One Year Cumulative Trauma vs. Injurious Exposure Limitation Allows Insurance Companies to Estimate Premiums with Reasonable Accuracy

9 WHERE DOES THAT PESKY ONE YEAR OF CT LIABILITY FALL? Last Year of Injurious Exposure ~or~ Year Preceding L.C Date of Injury Whichever Comes First!

10 MORE THAN ONE EMPLOYER OR CARRIER? If There are Multiple Employers and/or Carriers Potentially Liable, an Applicant May Elect Against One or More of The Potentially Liable Defendants

11 Discovery Begins with the Filing of an Application (CCR 10403)

12 WHO ATTENDS DEPOSITIONS? Applicant Applicant s Counsel Defense Counsel Employer Representative

13 ADVANCED STUDIES IN CUMULATIVE TRAUMA Western Growers v. WCAB (Austin) 16 Cal App 4 th 227 Aetna Casualty v. WCAB (Coltharp) 35 Cal App 3d 329 SCIF v. WCAB (CIGA) (Rodarte) 119 Cal App 4 th 998

14 Employer s Role Before a Claim is Reported Make sure you have all your posting notices up and current. Publish an effective Workers Comp Reporting Policy. Make sure your carrier/tpa has an effective MPN network and that your installation process is bullet proof. Make sure your carrier/tpa fully understands what you expect from them in prompt and effective claims defense. Make sure you have quality Job Descriptions or Job Function Analysis available.

15 Employer s Role When A Claim is Reported Be sure to open all legal mail the day you receive it and be sure to KEEP THE ENVELOPE. Report any new claim immediately. Inform the claims examiner you want it DELAYED and investigated. Conduct your own review, investigation and create good documentation. Get signed witness statements where appropriate. If concerned, ask your carrier/tpa to assign a professional investigator to participate in the process.

16 Medical Control Critical Blind Application or CT Claims Employers are usually the first to receive notice of the claim. Immediately send the alleged injured employee a letter on your letterhead acknowledging the claim. Put the employee and his AA on notice that they can get their own medical exams AT THEIR OWN EXPENSE (LC4605). Set an medical exam with your MPN clinic 7 to 10 days out noting that they must be seen no later than the 10 th day. Send it FEDEX or DHL or UPS along with a POS-Mail.

17 Medical Control - Continued Verify that they did or did not attend our scheduled appointment. If they did, then we live or die with our MPN doctors. If they did not attend, then a second letter is sent scheduling another appointment 10 days out and suspending all benefits under LC 4053 until they do attend. If they fail appointment number two, a third and final letter is sent again scheduling a final appointment usually 20 days out. At the same time, we request an Order compelling their showing up and an order Barring any benefits until they do. Be sure to provide copies of each letter to the claims examiner.

18 What should the examiner do Delay and investigate 90 day rule Object to all non- MPN treatment prior to accepting or denying. Assign defense counsel and set the injured employee s deposition ASAP. Subpoena all prior medical records available. That would be for both work and non-work related problems. You are looking for the smoking gun(s) to help your defense.

19 At The End of The Discovery Process If at the end of the 90 day delay period you have not been able to mount an affirmative defense and have no other grounds upon which to defend. Accept the claim and retain medical treatment within our MPN and therefore our control. Denying the claim without a solid understanding of the consequences simply means we lose our medical control and end up with either an AME or PQME.

20 TAKEAWAY TIPS AND TACTICS Make early assessment regarding need for medical control Assign promptly to defense counsel Be actively involved in defense of claim: Employer attendance at deposition of Injured Worker Consider Designating Preferred Defense Counsel Provide Copy of Personnel File Always Establish Claim-Specific Contact with Defense Counsel The Only Good Claim is a Closed Claim: Gold Standard is resolution at Deposition