General File Handling Skills 1) Timely and efficient investigation: 2) Notification and updating liens:

Transcription

1 Assessing the Value of a Workers Compensation Subrogation Specialist through the Audit Process by Brian Marx, MA, CPCU, New Jersey Chapter of the CPCU Society and Claims Section Committee, Florham Park, New Jersey The insurance industry continues to struggle financially from the proliferation of fraud, catastrophic events, asbestos litigation and the uncertainty in financial markets. While it has become increasingly difficult to react to and manage the investment side of the profit equation, the insurance industry has shifted its focus more on ways to improve loss results and control expenses. Claims Managers, as part of their Best Practices Program and long term strategic planning, and in response to intense pressure from the executive level, have adopted the theory of specialization from its creator, the great economist Adam Smith. They believe that by segmenting the claim handling process, assigning specialists to specific aspects of a claim, each claim will be handled more effectively and efficiently. In the end, not only will profitability improve, but also their organizations will also gain a competitive advantage in the increasingly price sensitive, complex and dynamic environment. Specialists can be either employees or vendors. Their use has been very popular in handling workers compensation claims. Some examples are: telephonic nurse case managers to manage medical treatment, SIU investigators to investigate and uncover fraud, Second Injury Fund vendors to identify pre-existing conditions and either mitigate the payment of, or seek reimbursement for, indemnity benefits from the State Insurance Fund and subrogation specialists who identify negligent third parties and pursue the recovery of benefits paid. There is no question that the use of specialists increases unallocated expenses for employees and allocated expenses for vendors. The obvious question is whether this extra layer is adding value to the claim handling process and improving profitability. One way to assess the progress and value of a specialist is by an audit. This article provides one suggested methodology or framework for auditing a workers compensation subrogation specialist, one of the newest types of specialists. Before discussing how to audit a workers compensation subrogation specialist, it important to point out four main purposes of a claim audit in general: 1) Ensure quality control: Determine whether the filehandler is meeting or exceeding the standards established by the organization. Standards should be consistently, equitably and equably applied to each file and filehandler. 2) Identify training needs: If corporate standards are not being met in certain areas, the audit identifies what the deficiencies are and may even give clues as to why they exist. Often times they are interrelated. 3) Provide feedback: The audit is a method for providing the filehandler with (hopefully) objective, constructive criticism about his work product, current performance and, if applicable, his progress since the last audit. Feedback clarifies, and perhaps reestablishes, the company s expectations about the filehandler s performance and function he/she serves in the organization. 4) Monitor progress: Closely related to accountability, monitoring progress assists in tracking performance to determine if the goals and objectives outlined in the development plan are being met. The audit process for a workers compensation subrogation specialist, regardless of jurisdiction, can be broken down into three major categories or skill sets: general file handling skills, technical skills and tactical skills. These major categories, which will be broken down into subcategories, are interrelated. For example, the specialist may exhibit poor inventory control (general file handling skills), which could be the result of a deficiency in investigative skills, knowledge of liability principles or the subrogation law (technical skills). Also, even if a recovery was secured in a timely fashion (general file handling skills), the case may have been

2 poorly negotiated (tactical skills) and the amount of the recovery, cash and/or credit against future benefits, inferior in light of the subrogation law (technical skills). In addition, the subcategories within the same major category are also interrelated. Under the technical skills category, the inability of the specialist to conduct an accurate and comprehensive liability investigation as to time, place and cause of injury will affect both the liability and subrogation analysis/subcategories. Individually scoring the categories and subcategories will not accurately measure the value of a specialist, due to the interrelationships between the two. For this reason, this article is not called, Quantifying the Value of a Workers Compensation Specialist Later in the article, it will be pointed out that attempting to measure performance and value simply by adding recovery dollars is also inherently flawed. General File Handling Skills This category assesses how well the examiner adheres to time sensitive, objective and easily quantifiable standards. In addition, it determines if the file is being handled aggressively, efficiently and contains an action plan to bring the file to resolution (i.e., pursue or rule out subrogation). Under this category, the following areas are addressed: 1) Timely and efficient investigation: Timeframes should be established for when the investigation should commence, intervals for follow up and completion of investigation. 2) Notification and updating liens: Once a third party or its carrier has been identified, a notice of lien should be sent out promptly. If the lien is not protected by statute and liability has been established, the appropriate filing to protect your subrogation interest should be made immediately. Regardless of whether the carrier is pursing an independent action or asserting a lien or filed an intervention action against a third party action brought by the claimant, the lien should be updated periodically to all interested parties. 3) Monitoring the lien and pursuing recovery: Negotiation for reimbursement should commence promptly and aggressively if the third party is being pursued independently and the workers compensation case is closed. If an agreement to resolve the claim cannot be reached without legal action, a cost-benefit analysis should be made to determine whether to litigate the matter. If the carrier is asserting a lien against an existing claim, the liability case should be monitored closely so that it does not get settled around the carrier. 4) Responsiveness to outside inquiries: Any requests for information from both internal and external customers as well as third party defendants (with authorization from the claimant or subpoena) should be handled expeditiously. Inquiries include claim status requests from the worker s compensation examiner, the underwriter, broker, agent, insured, as well as any documentation to substantiate the lien for plaintiff or third party defense attorneys. 5) File Documentation: File notes should be clear and provide the reader with the most current information, outlining the status and progress of the subrogation claim. While this subcategory could be an article in and of itself, a sample of the type of information would be: why subrogation is being pursued or why it was ruled out; all potential sources of recovery, the full name, address and phone number of all interested parties; anticipated recovery or strength of the liability case and all new relevant information and how it will affect the recovery. 6) Inventory Control: Time is a resource and has an opportunity cost (implicit cost). Specialists should not waste time working on files that have little prospect of recovery or if the explicit and implicit costs of pursuing the recovery will likely exceed the potential recovery - this takes time away from vigilantly pursuing recovery on those files where subrogation is economically viable. Usually files that do not contain a clear action plan typically are left open unnecessarily - because either the specialist is reluctant to close the file for fear of making an incorrect decision about a subrogation opportunity or unclear if one actually exists. The most proficient file handlers are those who are technically skillful, capable of identifying what information is needed and how to get it and identify the subrogation target(s) in an expeditious and cost effective manner. This brings us to our next subcategory, cost control.

3 7) Cost control: Reasons for hiring, establishing a budget for and monitoring the cost of investigators and attorneys is crucial. Money not spent judiciously is considered leakage just as much as a missed subrogation opportunity. Whenever possible, the specialist should attempt to coordinate the third party investigation with a vendor who may be already assigned to perform a compensability or SIU investigation. 8) Compliance with special handling instructions: Prior to the commencement of a third party action, many employers want to be notified of a subrogation action, since the target may be a business partner. Failure to honor this request may cause the employer to seek insurance coverage elsewhere at renewal. Technical Skills While the general file handling skills category addresses the existence of file documentation and evaluates the quality of the documentation, the technical skills category addresses the thoroughness of the investigation. A good technician will always identify more subrogation opportunities by exhibiting good attention to detail, being creative and intuitive, and possessing a solid knowledge and understanding of liability principles and the subrogation law. Technical skills can be broken down into the following subcategories: 1) Quality of investigation and identification of sources of recovery: An investigation must include all facts, details and circumstances of an accident. Essential elements are the exact cause, location, time and any mitigating circumstances of a loss. A more comprehensive and accurate investigation has the following benefits: better decision making regarding subrogation opportunities, identification of more sources of recovery, the better liability analysis, and higher likelihood of recovery for those claims pursued. 2) Liability analysis: If a third party is determined to be negligent, the theory of liability should be clearly and thoroughly explained and based on sound legal principles. Liability should be apportioned between the claimant and defendant(s) and the correct negligence test (usually the accident state) applied to determine whether subrogation is viable. Lastly, the specialist should explore whether strict liability applies for products, hazardous activities and domestic animal bites. 3) Subrogation analysis: If subrogation is determined to be viable, the anticipated recovery should be outlined. In an independent action, the recovery is simply the amount paid reduced by comparative negligence, if any, on the part of the claimant. If strict liability applies and the independent action is brought in the name of the carrier only, then all benefits paid should be reimbursed (usually subject to insurance limits). If a lien is being asserted against the claimants third party action, the following additional information is needed: the amount of the incurred loss estimate (paid loss plus reserve amounts) if the liability case settles before the workers compensation case is closed; the amount of insurance available from the defendants (if available); any deductions from the lien to pay for the claimant s attorney s fees and expenses or the amount the carrier pays to its own attorney and any restrictions on attaching the lien to the gross recovery, such as loss of consortium or pain and suffering. If the jurisdiction requires the use of a formula to calculate the cash reimbursement or apportionment of fees and expenses, the calculation as well as an explanation of how it impacts the recovery should be explained. This subcategory provides the foundation for the next and final category, tactical skills. Tactical Skills The level of a specialist s tactical skills are evaluated by his/her ability to effectively negotiate the optimum lien resolution after considering all statutory lien resolution options and factors from both the liability and workers compensation case. In essence, the specialist leverages from and applies his technical skills to negotiate a favorable lien resolution. This category is more difficult to assess if a carrier is asserting lien against the claimants third party action and more subjective to evaluate because it requires the auditor to be well versed on the type, nature and duration of workers compensation benefits and settlements as well as the

4 subrogation law. For example, if the lien is compromised, then the auditor should know the maximum statutory recovery, if the compromise was justified as well as if the amount compromised was appropriate. This category can be tricky to evaluate, because the highest cash recovery may not be the most favorable lien resolution for the carrier. Many jurisdictions allow carriers to use their subrogation rights to mitigate or eliminate their future exposure on the workers compensation case by reducing or waiving their lien. In other words, a carrier enters into a global settlement whereby the third party liability claim, workers compensation lien and all or part of the workers compensation case are resolved. In a global settlement, a carrier may waive its lien (current and future) to close all or part of the workers compensation case, because, after a careful analysis of both its potential recovery on the liability case and exposure on the workers compensation, would provide the carrier with a more favorable and certain result. That is, its savings on future benefits and reserve takedown may yield a better net result than receiving a full reimbursement for its current lien, taking credit against future benefits, and leaving all or part of the workers compensation case open with an uncertain future exposure. There are three subcategories. attorney s 1) Analysis of lien options and resolution: The specialist must provide a detailed cost/benefit analysis incorporating all lien resolution options and relevant factors from both the liability and workers compensation case and factors that are jurisdiction specific (i.e., applicable to the state s subrogation law). The factors to consider for the liability and workers compensation case include the amount of the gross recovery, the amount of the current lien, the total available credit and the projected future lien (i.e., amount of total available credit that can be used against the future exposure). Factors specific to the jurisdiction are the portion of the lien that can be attached to the gross recovery, types of damages that are excluded from the lien, carrier s consent to settle the liability case, viability of a global settlement as a lien resolution option, priority of distribution of the settlement proceeds after fee and expenses are paid and whether the Made Whole or Employers Negligence Doctrine is operative. 2) Collaboration with the workers compensation file owner: If the workers compensation case is closed or the carrier is pursuing the third party directly, collaboration between the specialist and file owner is not necessary, unless it is required by company standards. However, if the carrier is asserting a lien against or intervening in an action brought by the claimant and the workers compensation case is open, collaboration is crucial. The examiner handling the workers compensation case is more knowledgeable about the type and amount of benefits and future exposure of the case. The subrogation specialist is more knowledgeable about the subrogation law and how to calculate and analyze which lien resolution is best. Factors involving both the workers compensation case and liability case must be analyzed before a negotiation strategy can be selected. 3) Lien selection, negotiation updates and recovery results: Once a resolution has been agreed upon, the reasoning for selecting it should be documented as well as the progress of the negotiations. If authority is needed, it should be obtained and the person providing the authority should be noted in the file. Lastly, if the lien resolution requires the workers compensation case to be left open, a notation should be made on how future benefits are affected - that is, the amount of the credit, how it can be taken (dollar-for-dollar or at the pro rata rate) and against what type of benefits (medical and/or indemnity). The purpose of the audit process is to determine which specialists are adding value to the claim handling process. That is, which specialists are utilizing corporate resources (i.e., explicit and implicit costs claims handling costs) effectively and efficiently to both identify subrogation opportunities and maximum recovery through negotiation. However, there are a few caveats. First, each file should be viewed in light of the applicable benefit state s subrogation laws and the applicable negligence test (usually determined by the accident state). Each jurisdiction has its own subrogation landscape which has a profound impact recovery results.

5 Second, performance should be based on the aforementioned categories in conjunction with the actual recovery results. True, results do matter. However, if files are handled aggressively and the specialist exercises good technical and tactical skills, above average results will be realized over time. Third, care should be taken in how results are measured and compared over time for a specialist or among specialists in comparable territories. Lower cash recovery figures may not necessary mean inferior results for reasons already mentioned. The savings from a closed case or credit taken against future benefits should be documented and incorporated into the results. Lastly, simply because a specialist has recorded above average results, does not necessary mean he is an above average recovery specialist. It is possible that a specialist inherited a large number of cases that were worked up by someone else and the timing of the recoveries made the current specialist look like a hero. In summary, the categories and subcategories discussed provide a theoretical framework which can be used in structuring and developing an audit form to assess whether a subrogation specialist is adding value to the workers compensation claims handling process. Of course supervisors and managers will have to determine what time standards are appropriate for commencing, and substantially completing an investigation as well as appropriate timeframes for follow up investigation and intervals for updating the file. After creating an audit form, a copy of it should be disseminated to and discussed with members of the recovery unit, so that each employee understands what parameters he or she will be graded on and aware of management s expectations. This article appeared in the Fall 2004 Issue of the NASP Subrogator. NASP