Teddy Snyder

Category: Claim management

  • Privacy Issues When Predators Cause Comp Claims

    In the #MeToo and #TimesUp era, employees may be more ready to assert sexual aggression claims than in the past. These situations could lead to a workers compensation claim, a civil suit or even criminal proceedings. Privacy is an issue in each setting, but only in comp is the claims professional engaged in the victim’s medical treatment. Privacy issues merit consideration throughout the life of the claim, including at time of resolution.

    The applicability of SB 863 and Labor Code §4660.1(c) regarding the compensability of psych claims is outside the scope of this post.

    Who is the adjuster?
    Advocacy based claims handling emphasizes empathy with the injured worker.  Adjusting a claim for physical injury from rape, actual or attempted, or a psych claim arising from sexual aggression may call for special attention to who will see the injured worker’s records.  A female adjuster may be best suited to handle a woman’s claim.  But reports of Kevin Spacey’s and others’ behavior remind us this problem is not limited to aggression against women.

    An important concern with #MeToo claims is to avoid a string of claims personnel who have access to the injured workers’ medical records as they make treatment authorization decisions. Some companies have procedures to limit access to sensitive records. However, the longer a case is pending, the more likely it is that multiple people will need to see these records, possibly causing additional stress for the injured worker.

    Confidential Resolution
    As with all other workers compensation claims, early resolution is best. Mediation is the most private place to resolve sexual aggression claims.  Unlike with an informal meeting, mediation confidentiality is mandated by law.

    A WCAB hearing may create additional psychological issues for someone who has had these experiences. Assure that person or their representative that participants are barred from disclosing what happens in a mediation in other forums.

    Additionally, caucusing enhances a claimant’s privacy. Once I have separated the parties into separate spaces,they can talk to me without fear that anything will be communicated to those in the other room without their permission. As the mediator, I can reframe the injured worker’s concerns to maximize privacy. This environment facilitates case settlement.

  • Mediate to Comply with this Regulation

    Ready to file that DOR?  Not so fast. If you can’t show you tried to settle, you may be wasting everyone’s time.
    Mediation Shows Readiness
    8 CCR §10414(d) requires that “All declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declaration of readiness to proceed, and shall state with specificity the same on the declaration of readiness to proceed…. [emphasis added]”The way to show a genuine, good faith effort at resolution is to mediate the disputed issues.   Here’s how you meet the regulation’s requirement to state with specificity:”The parties attempted to resolve the described dispute through mediation with mediator Teddy Snyder on [date].”

    How often will you need this language? Almost never. The reason is that once parties mediate their dispute, more often than not they resolve it.

    Convening
    Convening, the process of getting everyone to agree to a time and place to mediate, can be the trickiest part. Some practitioners remain unfamiliar with mediation. They may confuse it with arbitration. We are all afraid to try new things, sometimes even when clients tell us to. You need to communicate your readiness to resolve the issues in a setting where those issues can be fully explored and the parties are in control of the outcome. Mediating is the win-win choice.

    Convening is best done by the attorneys, though the mediator can assist. If you are still trying to get the other attorney’s attention, you may indeed have to file that DOR. Once you get a response, even if it takes going to the Board, immediately suggest mediation as a way to cut to the chase, resolve the issues and avoid future unnecessary Board appearances.

  • New Year, New You? It’s Your Decision

    “New year, new you.” How many times have we heard that one?

    Yet, the same problems that vexed us in December are still there in January. You may be planning to lose weight, save money, or spend more time with family. But what are you doing about a new approach to resolve your ugliest workers compensation claims?

    Start by identifying claims that are ripe for closure. Look at the injured worker’s birth date; if the injured worker has reached age 61 and isn’t already on SSDI, it’s time to get serious. Is the claim more than five years old? Are you spending time and money with frequent WCAB trips?

    Workers Compensation professionals often have a to-do list which actually impedes claim closure. The content of that additional report may be completely predictable. You could settle without it. Meanwhile frustration, disputes, and expense increase.

    Call me to talk about whether the time is right for mediation. There’s never a charge for that discussion.

  • Motivation For Advocacy Based Claims Handling: A New Idea

    Pictures of injured workers.

    That’s it.

    I recently finished reading Pre-Suasion by Robert Cialdini. He relates the story of a group of management consultants who were working at their client’s site in a glass-enclosed conference room. They were tasked with designing incentive programs to reward employees for reaching goals. Rather than being distracted by the activity they could see around them, the ability of the consultants to see the people they were designing for led to a more successful result. They felt a unity with those people. Once this was realized, they placed pictures of workforce members around later on-site workspaces with the same result.

    What if claims offices were decorated with pictures of people representing injured workers? This could be pictures of people with disabilities, such as people in wheelchairs, people getting into a medical transportation vehicle, people as patients. Mix in headshots of a diverse group of people.

    Cialdini’s research tells us that claims professionals are more likely to feel unity with people they can see. By the way, he also says that those sentimental motivation posters actually succeed. Who would have guessed?

    Perhaps no one is marketing images just this way, but it seems like it would be pretty easy to create an appropriate collection. This seems like an inexpensive way to determine if viewing images of injured workers can produce more effective advocacy based claim handling.

    What do you think? Would management give it a try?

  • Don’t Miss the Crossover Issues

    Crossover issues are not strictly workers compensation issues– which is why they are sometimes overlooked. That omission can cost a party money or even lead to a professional malpractice suit. Third Party Claims
    Product liability, medical malpractice, and negligent roadway design are examples of third party claims usually unaffected by the exclusive remedy rule. Collisions may give rise to the most common third party claim.

    SSDI
    Whether and when to apply for Social Security Disability Income (SSDI) are not simple decisions. Federal law is written to make sure a disabled person does not earn more when not working than the person did on the job. The “80% rule” limits the combined total of SSDI and indemnity payments to an injured worker. This rule principally affects lower wage earners.

    Medicare/Medi-Cal
    Virtually all workers compensation professionals recognize the need for a Medicare Set-Aside in appropriate cases. Correct self-administration remains a challenge. Additionally, practitioners should be aware that two forms of Medi-Cal currently exist: traditional and expanded. Savvy negotiators can often use these programs to create a safety net to cover the injured worker’s medical expenses as part of a Compromise & Release completely closing the claim. C&Rs drafted without considering Medi-Cal issues could imperil medical care for the injured worker and the injured worker’s entire family.

    Immigration
    Undocumented injured workers are eligible for workers compensation benefits in California. Some undocumented workers have been in their jobs for decades. They remain under the legal radar until a workplace injury occurs. At that point, a false or stolen identity may come to light, creating issues for the injured worker and the employer. The Patriot Act’s provisions about identification required to open a bank account or to send money out of the country can also interfere with an injured worker’s decision to choose a Compromise & Release.

    Tax
    The tax code provides that money received on account of a physical injury is not taxable. Usually all payments made on a workers compensation claim arise from a physical injury. However, a number of circumstances could trigger taxation. Also, once an injured worker receives a buy-out, earnings on invested or banked sums are taxable.

    Get Help
    Workers compensation professionals should recognize crossover issues, and counsel should alert clients when these issues appear. The next step could be to bring in an expert in that area, provide one or more referrals, or advise clients to seek professional advice on their own.

  • You Have To Play To Win

    –How Mediation Is (Not) Like the Lottery–

    No, I’m not advocating you play the lottery, but the slogan does apply: you have to play to win. The odds of winning the California Super Lotto Jackpot are 18 million to 1 against you. The likelihood you will be able to resolve your workers compensation issue in mediation is more like 80-90% in your favor providing you participate.

    Take a Calculated Risk
    The only settlement offer without a chance of acceptance is the one you never make. Some parties complain that they can’t settle the case. Yet, those same parties refuse mediation or come to mediation unwilling to negotiate. You cannot expect resolution in mediation if your position is to never move off the number that was refused pre-mediation. You have to play to win.

    Playing the lottery is the classic example of a blind risk. A blind risk embodies an irrational hope, an action based on nothing more than emotion, expecting something for nothing. A person who takes a calculated risk, on the other hand, has objectively assessed the situation and examined the upside and downside potential. This is true for investors, explorers, world leaders, and negotiators.

    First evaluate, then negotiate
    Before you can effectively negotiate, you have to do your homework, i.e., run the numbers to evaluate the claim. Once you have considered the best and worst alternatives to a negotiated agreement, you are ready to proffer your demand or offer. You have to play to win.

    Mediation allows the people with the most knowledge about the claim to take control of resolving it. During mediation, the mediator can help you calculate your risks and negotiate resolution.

  • Bulk Settlement Days

    The Workers Compensation community is small. We see the same folks again and again. Applicant’s counsel commonly have an inventory of cases with one carrier or TPA, perhaps involving a single employer. Claims professionals and defense counsel often have multiple claims with one applicant’s attorney. These scenarios beg for an efficient resolution.

    A litigation management technique called a Bulk Settlement Day involves scheduling multiple cases for mediation with the same players on the same day, same place, one after the other. Some people use the term Block Settlement Day for the same idea, referring to a block of cases.

    Scheduling a Settlement Day is not as daunting as you may think. Start with a letter suggesting several cases you know are good settlement candidates. Invite the addressee to suggest others. If you need help composing your letter, please contact me for a form. 

  • Heartsink Patients

    “Heartsink” is the term for how the treater feels when it is difficult if not impossible to help patients with chronic pain and disability. A 1989 Toronto Star editorial placed these patients into four categories: dependent clingers, entitled demanders, manipulative help-rejecters, and self-destructive deniers.
    You know these injured workers. They are the ones whose life is wrapped up in their claim. The only way they will give up that obsession is to replace it with a plan for life after claim closure.Injured workers need to feel that a settlement is the just result. They need adequate compensation to create a safety net for future medical care. A WCAB hearing is often just a prelude to more conflict.

    Mediation can provide the forum to help the injured worker create a plan for life without an ongoing claim.

     

  • How Minimum Wage Laws Affect Indemnity Payments

    SAWW is going up. The California State Average Weekly Wage determines the annual adjustment of the minimum and maximum payments to persons receiving temporary disability benefits per Labor Code 4453(a)(10). The State Average Weekly Wage also determines the adjustment to payments to persons receiving a life pension or total permanent disability indemnity per Labor Code 4659(c).

    In June, the Department of Industrial Relations Division of Workers Compensation announced an increase for payments starting January 1, 2017. The minimum TTD rate will increase from $169.26 to $175.88 and the maximum TTD rate will increase from $1,128.43 to $1,172.57 per week.

    In a separate development, a new rule gradually raising the minimum hourly wage to $15 by January 1, 2023 was signed into law in April. A rising minimum hourly rate will increase the State Average Weekly Wage over the next seven years and in consequence some workers compensation indemnity benefits.But there’s a safety valve. After January 1, 2017, the governor can delay any scheduled increase for one year if certain economic or budget conditions exist. The economy has been expanding. Some experts predict a collapse.

    Effect on Settlements
    When evaluating claims for settlement, parties may have to consider how the expected SAWW increases will affect the value of future indemnity benefits. The minimum hourly wage increases are small, 50 cents the first two years and a dollar a year thereafter. Is this enough to affect the historic rate of increase we have seen for life pensions? Claims subject to minimum and maximum TD increases are most likely to be affected. An across-the-board increase in claim value will also increase attorney compensation.

    Predicting is hard.  Settling sooner rather than later avoids uncertainty.