Teddy Snyder

Category: _Regular Post

Category to place the post in the last group of the blog page and not in the featured posts sections.

  • Mediation or Arbitration

    Confusion continues about mediation compared to arbitration. The processes are very different.

    Mediation
    Parties come to mediation to achieve settlement. A mediator helps people negotiate to that end. I spend most of a mediation with parties in separate confidential sessions. I help them define issues, understand alternatives, and compose offers and demands. I convey information between parties in a way that will promote settlement. A mediator has no power to order anyone to do anything. With the mediator’s help, parties come to an agreement. Sometimes a mediated settlement includes promises outside the scope of the dispute originally submitted for mediation and it is compromise on one of these outside issues that settles the case. A mediation can end without settlement, and the case goes on.

    Arbitration
    Parties come to arbitration for an adversarial proceeding where a professional neutral will decide who is right. An arbitrator is a private judge. Arbitration is subject to many rules. Proceedings are similar to a trial with witness testimony and submission of evidence limited to the defined dispute. It would be improper for an arbitrator to meet privately with a party or to suggest ideas. At the conclusion of an arbitration, the arbitrator declares a winner; the ruling is called an “award.” If the parties, individually or through a group such as a union, have submitted the dispute to binding arbitration, the arbitrator’s award is the end of the case.

    Different skills for different processes
    Mediation and arbitration require different sets of skills. Mediators encourage collaboration. An arbitration is an adversary proceeding—no collaboration. Mediators may suggest a creative solution. Arbitrators do not suggest anything; it is up to each party to present their case and for the arbitrator to judge it. By definition, arbitrators are judgmental; mediators are not.

    Some professional neutrals can successfully switch hats, conducting both mediations and arbitrations. But participants often report that some mediators, particularly those with judicial experience, are, well, judgmental. When choosing a mediator or arbitrator parties should be cognizant of the differences in the processes and choose the neutral best suited for the task.

  • 3 Signals It’s Time to Close the Claim

    Some Workers Compensation Claims seem to have a life of their own. Before you know it, years have passed since the Date of Injury. Here are 3 signals telling you to take a hard look at settling now.
    The Injured Workers is 61 years old.
    Once an injured worker reaches age 62½, any buy-out of future medical care must include a Medicare Set-Aside. (Buy-out of medical benefits for an injured worker already on Medicare also requires a Medicare Set-Aside.) This adds extra work and delay. Sometimes the MSA evaluation changes the parties’ view of the case. Stories abound about how the MSA process has torpedoed a settlement.

    Check your case inventory. If the injured worker is 61 years old, take steps now to close the claim before Medicare becomes a party to the proceedings.

    Litigation has become a way of life
    You’re in court every month. The number of claimed body parts keeps increasing; every treatment request is denied. Everyone mistrusts everyone else, including their own lawyers. Take a deep breath. Step back. This claim has a settlement value. The parties just need help figuring out what it is.

    Trial is Imminent
    Nothing makes people think about settlement more than an upcoming trial date. You’ve lived with these facts for a long time; how can you be sure the judge will see things your way in the limited time available to put on the case?  Often, a judge’s order is just the gateway to even more litigation.

    Going to trial is a risk.  Most people are uncomfortable with the lack of control. They are happier with a negotiated settlement reached through compromise. You won’t get everything your way, but you won’t lose on every issue either. Most importantly, litigation can end.

    Take the First Step
    Approach the other side about scheduling a mediation.  If communication has broken down, contact the mediator first, and let her work on bringing the parties together.

  • Tactics vs. Strategy

    Tactics are steps you take to win short term goals on the way to achieving your strategic objective. Sometimes tactical skirmishes distract workers compensation professionals from pursuit of their strategic goal. On the other hand, you can’t reach your strategic objective without well-thought-out tactics.

    The Disputed Doctor’s Deposition
    Take the case where an attorney insisted that the deposition of the doctor who provided the most recent report had to precede settlement discussions. The problem was that by the time that could happen, all the permanent disability would be paid out. After providing for future medical expense, that would leave no cash for the applicant or the attorney fees, jeopardizing the chance of a future Compromise & Release. When I pointed this out, the parties realized that a tactical victory could prevent achieving the strategic goal. The case C&R’d.

    The Tale of the Two Interpreters
    I arrived at a recent mediation to find the attorneys at loggerheads because both had ordered an interpreter. Both interpreters were court-certified. I convinced one of the attorneys that agreeing to dismiss the interpreter that attorney’s office had ordered would create a negotiating advantage. In the give-and-take of negotiation, opposing counsel might well feel beholden to make the next concession. Conceding the interpreter battle demonstrated the attorney’s reasonableness and set the stage for a productive mediation. The case C&R’d.

    A litigation plan should be more than a checklist. Every tactic should further the effort to achieve the strategic goal.

  • Understanding Insurance Reserves

     

    Understanding insurance reserves can help settle a claim. A reserve is a pot of money set aside to pay for a specific expense category. Typically, there are separate pots for indemnity, medical and med-legal expenses.

    Sometimes a negotiator finds that a claim can be closed for an amount more than remains in the indemnity and medical reserves. However, part of the settlement can be classified as a med-legal expense. By spending the money from the med-legal reserve, settlement can be achieved while staying within current reserve limits.

  • Ghosts, Goblins and Mediators

    Halloween is just around the corner, a time when people love to be scared. It’s fun, because everyone knows there’s really nothing scary at all.

    Mediation isn’t scary. Yet some claim and legal professionals fear it.

    Fear of losing control
    Adjusters and attorneys know their jobs. They may bristle at the idea of someone else getting involved in the settlement process. Yet, they don’t hesitate to call in other experts.

    Claim and legal professionals retain control in mediation. Only the parties can choose an outcome. The mediator cannot order anyone to take any action. What the mediator can do is help parties define issues, resolve differences, and see new routes to settlement.

    Fear of looking bad
    Some professionals worry that calling in a mediator makes them look like they couldn’t do their job. On the contrary, professionals who use every tool in their arsenal look smart. Referring a claim for mediation can short-cut litigation, saving time and money. This makes you look like someone who knows how to get things done.

    What are you scared of?
    You don’t need a costume, and you don’t need a candy bucket to get started.  Treat yourself to mediation to move that difficult case forward.  Mediation can benefit all parties, and that’s no Halloween trick.

  • How Medical Identity Theft Affects Claim Resolution

    Medical identity theft occurs when a thief obtains treatment using the victim’s social security number or health insurance identification number. Authorities also report arrests of care providers who have stolen medical identities and submitted bills for treatment they never performed.  Cyber-attacks on medical data have produced a market for this kind of information.
    Treatment 
    A theft victim’s biggest risk is improper medical treatment due to provider reliance on an incorrect medical history. The victim could end up with a transfusion of the wrong blood type, an incorrect prescription, or ineffective treatment tailored to the wrong facts. If inappropriate treatment of an industrial injury results in the need for further medical care, the additional care will also be an industrial treatment expense.

    Payment for Treatment 
    Injured workers may not know their medical identity was stolen until their treatment request is denied. When medical records show non-industrial causation of the subject condition, a carrier may deny treatment. Records might also show a prior industrial claim for the condition now under review. If the injured worker denies such prior treatment, medical identity theft could be the cause of the discrepancy.

    When an injured worker claims medical identity theft is the reason for a record of prior treatment, record reviewers should pay close attention to notes of contact information for the patient and family members, height, weight, age, and other telltale features which could confirm or weaken a claim of medical identity theft.

    Employers facing a claim of medical identity theft will have to use a rule of reason and tread carefully. As with other denials, once the injured worker starts treating non-industrially, the employer loses control of the treatment and may end up paying much more than if the condition had been treated within the Medical Provider Network.

    medical-identity-thief
    Apportionment
    When the injured worker sustained a prior disabling injury, the percentage of disability payable on the current claim will be apportioned. But what if that prior injury was to someone else using the current claimant’s identity? Parties will need evidence about the prior injury and treatment including the injured worker’s actual location and activities on the relevant dates.

    Liens
    Given the market penetration of some medical providers (such as Express Scripts), a claim could trigger issues relating to bills incurred for stolen treatment. CMS might respond to a submission for MSA approval with a reimbursement request for treatment provided to the thief.

    Separating Medical Record Histories
    The identity theft victim will bear the burden of cleaning up the medical record history, including notification to care providers, credit agencies and possibly law enforcement officials. This task is another source of stress at what is already a stressful time for an injured worker.

    The employer needs a complete medical history relating to the industrial injury and usually obtains the relevant records by subpoena. Once the theft is discovered, new privacy issues may arise in obtaining those records.

    What If The Injured Worker Is The Thief?
    Sometimes an undocumented worker avoids detection until there is an industrial injury. Medical treatment planning can disclose a medical history at odds with the known facts of the injured worker’s life. In California, the injured worker will be entitled to treatment of the industrial injury. As with the identity theft victim, disentangling the two medical histories can complicate the treatment plan.

  • Teaching Risk Management to an Eight-Year-Old

     

    “Grandma, why did you move my chopsticks?”

    My extended family was dining on Cashew Chicken, Mongolian Beef, and fried wantons. Without missing a beat I answered, “Well, Ashley, I’m all about risk management. I noticed your chopsticks were sticking out over your lap, and there was a risk you or I might knock them to the floor [notice the diplomacy there], so I initiated a safety program. I rotated the chopsticks on your plate to stick out over the table instead of the floor.”

    Dead silence.

  • Get “In Pro Per” Claims Off The Books

    You know the claims I’m talking about: the really old claims where the Injured Worker is representing himself/herself. Let’s call them “in pro per”s.  Active in pro pers file one court paper after another, causing the insurer or self-insured employer to fund what seems like a never-ending stream of money to send a representative to the Board. The in pro per’s papers may not state a recognizable claim. Pressed for time, the Information and Assistance officer may give the in pro per short shrift.  Defense attorneys with varying degrees of patience usually do, too.

    But what if what the parties really need is a sort of an interpreter, a mediator.

    Mediating an in pro per’s claim demonstrates respect for the in pro per.  The feeling of lack of respect and inability to get heard is often what drives the in pro per to keep summoning the employer to court.

    “Why would I waste time and money on a worthless claim?” you may ask. Because you’re spending time and money now, and mediation is a way to end that endless cycle.

    Sometimes the in pro per has a bona fide complaint, but without professional assistance has not been able to communicate it. The neutral mediator is often able to re-state the concern in a way the parties can address and put past them. The mediator can help each party see the other side’s point of view.

  • Are You A Rule-Breaker?

    Workers Compensation professionals have to know a lot: the California Labor Code, Title 8 regulations, state and federal rules governing health care entitlements. To make things even harder, the rules of this highly-governed road keep changing. Workers Compensation may be the most intricate, heavily regulated area of practice. These rules can constrain the parties’ ability to negotiate satisfactory settlements.

    You only have to know one rule about mediation: everything that happens within the mediation, including pre-mediation and follow-up communication, is confidential.  You don’t have to share your mediation brief with the other side if you don’t want to. In mediation, in contrast to WCAB practice or arbitration, you can get creative. You can break the rules.

     Mediated agreements can include provisions a WCJ could never order, such as agreements relating to actions in other forums.  You can settle claims which haven’t been made yet.  Parties can use creative solutions like structured settlements and medical care trusts. The mediator can help you brainstorm.

    As mediator, I help parties settle cases.  There are no rulings in mediation, so no one loses.  Go ahead, let’s break some rules– and settle the case.