Teddy Snyder

Tag: workers compensation

  • Why An Injured Worker Is Like Aaron Burr

    Hamilton, the ground-breaking musical about colonial forefathers, is finally coming to Los Angeles in August. But maybe you’ve been experiencing a version of that story. Like Aaron Burr, injured workers want to be in the room where it happens [sorry if you encounter an ad at this link]. Instead, they are frequently shut out of discussions and proceedings about their claim.
     
    Ignorance breeds resentment
    Go to any WCAB location and you will see a waiting room full of injured workers. Many more injured workers with claims on the calendar are not in attendance. Settlement discussions may occur in courtrooms, cafeterias and even hallways. Injured workers are usually not included in these discussions.

    No injured worker should waste time traveling to a Board when nothing will happen. On the other hand, injured workers want to sit in on their attorney’s negotiations. If the injured worker is already at the Board, shutting out that person can foster mistrust.

    The Best Place for Settlement Discussions
    Mediation provides a forum for the injured worker to listen and participate. Including the injured worker conveys respect and can avoid a problem later.

    Likewise, the presence of a representative from the employer’s side shows a seriousness of purpose. That representative will get a better picture of the negotiation by being in the room where it happens.

    Regardless of which side an attorney represents, counsel will want to prepare the client for mediation. That includes a preview of how mediation works. Counsel may want to coach clients to be temperate in their comments. In joint session or when the mediator is present, client or counsel can ask for time for a private discussion with each other at any point.
    Multiple Rooms
    Typically there are at least two rooms where it happens, because each side is in its own caucus. As mediator, I shuttle between the rooms to speak with lawyers and their clients. Sometimes I speak only with the attorneys (often in the hall), and attorneys can request to speak privately with the mediator or with the mediator and opposing counsel. When counsel returns to caucus, the client can provide immediate feedback—assuming the client is in the room where it happens.

  • How to Win With Throwaway Issues

    Some issues aren’t worth fighting over. Yet, parties and counsel frequently do take a stand when they might do better by taking a step back and just throwing that issue away.

    It’s the Principle of the Thing

    OK, you’re completely right on this issue—but what is the big picture? A fight over a $300 interpreter bill is counterproductive when you are trying to resolve a claim with a value of $600,000.

    When mediation participants staunchly maintain, “It’s the principle,” they almost always mean, “It’s the money.” Particularly for the employer side, this is a business negotiation. Savvy negotiators know how to bargain away the little issues to get the optimum result.

    Location, Location, Location

    Perhaps the most common throwaway is where to convene the mediation. Southern California is a big place, and drives of several hours to get to a Board or mediation are not uncommon. Sometimes parties argue over where to hold the mediation. You can’t resolve the case if you can’t even agree where to get together to talk about it.

    Usually, California workers compensation mediations are held in one of the attorney’s offices. Sometimes only the defense attorney’s office is large enough to accommodate the participants. But negotiations may be most fruitful at a location which does not intimidate the injured worker. Using the AA’s personal office and the reception area for caucuses (mediator sessions with only one side) may seem cramped, but if the injured worker is most comfortable there, that may be the best choice. If you are arguing over this issue, just give it up.

    I Owe You One, Man

    Negotiation is a give-and take process. Once someone has acquiesced on an issue, the other party usually feels somewhat beholden to give way on the next one. Minimally, your “generosity” with issues which are of little consequence to you can show how reasonable you are. These concessions help advance the mediation toward a successful conclusion.

    Some negotiators invent issues to fight over just so they can have them in their back pocket to throw away. Throwing away your position on an issue can be the smartest way to negotiate to the best final resolution.

  • 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.

  • 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.

     

  • Reduce Industrial Accidents– Repeal Daylight Saving Time

    Daylight Saving Time (“DST”) is stupid

    There is no reason for all of us to make ourselves crazy changing the clocks twice a year. DST does not save fuel and does not help farmers. Instead, it causes industrial accidents and collisions. John Oliver focused on this problem in a comedic piece on his show.

    Please contact your state legislator about repealing DST.

    In the last legislative session, the California legislature came thisclose to putting a proposition on the ballot on this issue. That’s right. The legislation doesn’t actually fix the problem; it passes the buck to the voters to do it. Well, OK- it’s something. At the last minute, the bill failed.

    If you are a Californian, ask your state senate and assembly representatives to re-introduce and support AB-385 from the 2015-2016 session to repeal DST. You can identify your state legislators via this government website. Once you get to the contact page, if you don’t see this issue (and you probably won’t) you can identify it as a “general” or “legislative” issue.

    Here is a sample message you can send.

    Re: Re-introduce AB-385 (2015-16 session)

    Daylight Saving Time (“DST”) is a drain on productivity. It increases industrial accidents and collisions. Retention of DST is expensive in dollars and human effort. It does not help farmers; it does not save fuel. There is no place for it in modern America. Please re-introduce in your house and support AB-385 from the 2015-2016 session to repeal DST. California has been the perennial leader that many states follow (though in this case Arizona and Hawaii already shun DST and seem to do just fine). California should be the first big state to get rid of DST and bring some sense to the simple task of keeping time. Thank you.

  • THE ONE THING TO DO TO MAXIMIZE MEDIATION SUCCESS

    Preparing a mediation brief is the one thing you can do to maximize the likelihood of a successful mediation. The goal in mediation is to define issues and resolve them. You can get a head start by alerting your mediator to the issues and suggesting why those issues tilt in your favor.

    Lack of a brief unnecessarily lengthens the mediation. Your mediator is probably being paid according to how much time is spent in mediation. Effective resource management dictates you don’t want the mediator to have to spend the first hour—or two or three—digging out the issues.

    Mediation can be an exhausting process. People get cantankerous which makes negotiation more difficult. Short-cutting the mediation by defining issues in advance can keep participants at their best.

    The brief need not be formal. A letter may be adequate. If you are in doubt about how formal your brief must be, contact the mediator and ask.

    A party who does not brief the issues may be allowing the other side to define the discourse. Send your brief to the mediator far enough ahead of the mediation so the mediator has adequate time to review it.

    The mediation brief you send the mediator is confidential. You decide whether to share it with the opposing party. Information disclosed to the mediator during mediation is not discoverable. The mediator cannot be subpoenaed. This allows you to control when to disclose your “smoking gun”—maybe not until trial.

    Some parties prepare two briefs: one for the opposing party and one for the mediator. More commonly, a party prepares just one, but may decide to waive confidentiality of the brief during mediation.

  • The Regulation (Almost) Nobody Follows

    “If a party requests that a defendant provide a computer printout of benefits paid, within twenty (20) days the defendant shall provide the requesting party with a current computer printout of benefits paid. The printout shall include the date and amount of each payment of temporary disability indemnity, permanent disability indemnity, and vocational rehabilitation maintenance allowance, and the period covered by each payment, and the date, payee, and amount of each payment for medical treatment. This request may not be made more frequently than once in a one-hundred-twenty (120) day period unless there is a change in indemnity payments.

    A defendant that has paid benefits shall have a current computer printout of benefits paid available for inspection at every mandatory settlement conference.”
    California Code of Regulations Title 8 §10607.

    The benefits printout is the foundation of every workers compensation claim evaluation. Yet, workers compensation professionals often ignore the basic exercise of examining claim expenditures. Attorneys sometimes come to mediation with a rolling cart holding boxes of documents. Yet, when asked for the printout, they have to contact their office or the adjuster. Stranger still are the answers I sometimes get to the question, “How did you get to that number?” When I ask participants how they formulated their demand or offer, their answers may have no relation to actual claim exposure.

    Showing up at a mediation or mandatory settlement conference without having scrutinized the printout numbers is inefficient, maybe even sloppy. Better practice is to obtain the printout in advance and create projections to support your claim evaluation.

    Workers compensation professionals should review past medical expenses to project future expenses. Of course, parties may disagree about what expenses are reasonable and the likelihood and duration of future care. A medical recommendation for a new treatment (which may be disputed) can skew the numbers. For example, resolution of one mediated case hinged on a medical recommendation for a newly available prosthetic device.

    The printout is also critical to resolving retro and overpayment disputes. When parties disagree about whether payments in a given time period should have been paid at the PD or TD rate, the printout is the best evidence of what was actually paid.

    When both sides look at the printout together, they can often resolve their disagreements with a little help from the mediator.

  • Settlement Season

    settlement-seasonHere we are in the fourth quarter of the year or as some call it, settlement season. Workers Compensation cases seem to drag on, but as year-end approaches, everyone in the system suddenly wants to get claims off the books. There is good reason.

    Claimants on the road to settlement often want to complete a buy-out in time to get cash for the holiday season. Carriers have to report to state insurance departments how many claims are open at year-end. Self-insureds want to avoid funding a bond for another year.

    If you haven’t previously mediated a Workers Compensation claim, you might feel a bit intimidated. You don’t have to commit to a settlement in advance of mediation. In fact, many mediations start with parties insisting the claim will not settle.  Yet, the majority of those mediated claims do result in settlement.

    Parties just need to agree to sit together with the mediator to discuss the issues. Once everyone is on board, a mediation can be scheduled quickly. Unlike a WCAB hearing, participants can take all the time they need.

    When parties collaborate in mediation to define issues, they often find themselves resolving those issues. Minimally, everyone will be on a firmer basis to move forward.

  • What You Forgot To Tell Your TPA

    Many self-insureds and carriers use Third Party Administrators as their front-line adjusters. A set of instructions or guidelines from the actual check-writer is supposed to regulate the TPA’s procedures. Anticipating every permutation of every possible situation is impossible, but every set of instructions should include guidance on when and how to use mediation.

    Recently I had the opportunity to review a set of TPA instructions. The TPA was directed to “negotiate settlements of covered claims pursuant to the authority granted by” the contracting party. No further details were provided.  However, another section of the agreement spelled out in minute detail a procedure for mediation should a dispute arise between the TPA and its client. The client knew mediation was an important tool for resolving its own disputes, but provided no direction about how to use it to resolve covered claims.

    The regional risk manager of one national account tried to get their local team of TPA workers compensation adjusters to try new dispute resolution techniques, but the adjusters refused. “If they want us to do that, they need to include it in their instructions.”

    What Should TPA Instructions Say About Mediation?
    “At appropriate milestones in the life of a claim, adjusters and attorneys should take active steps to initiate mediation and report on the results.

    “These milestones include:

    -Upcoming trial date
    -IW has reached permanent & stationery status
    -IW has reached age 61
    -70% of indemnity reserve has been paid
    -4 reserve changes within 2 years
    -Case is more than 4 years old

    “Additionally, claims handlers should attempt to close claims with mediation in:

    -Death cases
    -when the IW is acting in pro per

    “Adjusters and attorneys are expected to participate in mediations with a good faith intention to negotiate and resolve pivotal issues.”