Tag Archives: claims adjusters

3 Perspectives on Opioid Crisis in WC

Over the past two decades, there has been a dramatic increase in the use of opioids in workers’ compensation. Opioids are being prescribed for many conditions for which they were not originally intended. Efforts have begun across the U.S. to create opioid treatment guidelines, change medical practice patterns and curb the opioid epidemic. While much has been written recently about the unintended consequences of opioid use, such as how they increase pain sensitivity and level of disability and can lead to addiction, there is little information available about the perspectives of the key players in workers’ compensation on the opioid issue.

Mark Pew, a prominent managed care organization’s spokesman, has said, “Using opioids as a crutch really is the wrong thing. What you need to be focusing on is coping with it and managing it like the vast majority of humanity does with chronic pain or just the fact of getting old.” But what do the injured workers, physicians and claims adjusters say? I conducted confidential interviews with members of each of these groups to get the perspectives of those who so far have had less of a voice in the debate.

Physicians

Physicians must balance their desire to control their patients’ pain against the known drawbacks of opioids. One physician told me, “When I was in medical school 20 years ago, we were told that we were undertreating pain. Pain was named ‘the fifth vital sign’ (along with blood pressure, heart rate, respiratory rate and temperature), and we were trained to ask patients about their level of pain on a 10-point scale at every visit. At that time, very little was known about the dangers of long-term opioid use. Now, patients with any kind of pain have come to expect to get that narcotics prescription when they see the doctor.”

See also: How to Attack the Opioid Crisis  

Interestingly, in response to the current opioid crisis, delegates at the 2016 annual meeting of the American Medical Association passed a resolution recommending that pain be removed as the fifth vital sign in professional medical standards. Critics, many of them pain management specialists, say the move “will make it even more difficult for pain sufferers to have their pain properly diagnosed and treated.” However, a 2006 study in the Journal of General Internal Medicine concluded that “routinely measuring pain by the fifth vital sign did not increase the quality of pain management.”

Another physician, a medical director at an insurance carrier, said, “When I see the second opioid prescription come through the system, I start reserving for detox.” She meant the second opioid prescription is an indication to her that there is a high likelihood the injured worker is going to become addicted to the opioids.

Claims Adjusters

Claims adjusters have a unique perspective on the direction a workers’ comp claim takes. They usually speak with both the injured worker and the provider and can influence the process to a certain extent. One claims adjuster said, “I’ve been watching the whole opioid crisis unfold for the last 10 years. We see the opioid prescriptions coming through, and we know that many of them are not indicated by the patient’s condition, but we have limited options for preventing problems. It would be nice if we could identify the providers with good prescribing patterns and direct injured workers to those providers.”

Another claims adjuster told me, “In states with drug formularies, where opioids require prior approval, we are seeing much less opioid use on new claims. Our biggest problems are the older claims where the injured workers have been taking opioids for long periods of time. Then we start to see the prescribing of additional drugs just to treat the side effects of the opioids. The worker is already addicted, is not even getting adequate pain relief anymore, and the claim just goes on and on.”

This claims adjuster thought the best approach to the opioid problem would be to have a claims management system that alerted managers every time a new claim had an opioid prescribed. That way, “we could immediately contact the physician and make sure there was an understanding of the opioid treatment guidelines and a plan in place, right from the start, for weaning the injured worker off the drugs at the appropriate time.”

Injured Workers

In the current climate of awareness about the risks and dangers of opioids, injured workers are often caught in the middle. They must balance their desire for pain control against their growing concerns about side effects and long-term adverse effects. One injured worker said, “I know I’m getting less pain relief than I used to from the pills, but I’m reluctant to tell my physician because I’m afraid of having to deal with my pain on my own. I’d rather suffer with the side effects I’m accustomed to than risk being in constant pain again.”

Another injured worker told me, “I went from eight pills a day to being totally opioid-free, but it took two stints in rehab and a whole lot of willpower. It’s a seductive thought, to place your trust regarding pain relief in a pill, but it’s not a long-term solution. The pills have too many disadvantages. Sooner or later you have to get off the pills and take control of your pain using other methods.” This injured worker has achieved an acceptable level of pain relief using over-the-counter medication and by practicing mindfulness.

A third injured worker reported, “I’ve been on opioids for two years now. My doctor keeps refilling the prescription, so I keep taking the pills. I have a lot of side effects, but it’s worth it to keep my pain under control. I don’t want to make any changes in my regimen and risk being in pain again. I find the negative publicity about opioids very scary. I guess someday I’ll quit them, but just not right now.”

In conclusion, injured workers, providers and claims adjusters are all seeking the right way to deal with pain. Injured workers in pain need pain relief, but they also need non-pharmacologic pain management techniques. Most treatment guidelines in workers’ compensation now recommend opioids only for acute, post-surgical pain relief for three to seven days, ideally. They are not recommended for chronic, musculoskeletal pain, e.g., for pain lasting longer than three months. Providers must take responsibility for engaging their injured workers in an active pain-management process. It doesn’t have to be a formal program; it can be an agreement between doctor and patient. Doctors have to be ready for this responsibility if they prescribe opioids; it’s poor practice — and violates the physician’s imperative to “do no harm” — to prescribe something addictive if you are not able to assist the injured worker with the weaning process.

See also: Opioids: A Stumbling Block to WC Outcomes  

For their part, injured workers must accept the necessity of being actively involved in their pain management and buy into not taking pills long-term that are going to result in more harm than good. They should demand that their prescribing physician discuss the medication plan with them, what the adverse effects are and what the weaning process will be like.

Finally, claims adjusters have the responsibility to be on the lookout for opioid prescriptions and to make sure that providers are prescribing them within guidelines. There are technological solutions for this. The best approach to the opioid crisis is a team approach: providers, claims adjusters and injured workers working together to avoid opioid dependence and maximize recovery, restoration of function and lasting relief from pain.

Six Things to Look for in a Workers’ Comp Counsel

When I started defending workers’ comp claims 25 years ago, I learned very quickly what carriers and employers wanted from me—because adjusters would tell me every day about what they DIDN’T like about other defense attorneys. Seeing an opportunity, I made sure I did the OPPOSITE of the complaints.

To paraphrase Rod Serling, I am submitting for your approval six things I learned during those formative years that I believe insurance carriers and self-insured employers are looking for in defense counsel.

Independent thought

Workers’ compensation defense attorneys often simply inform clients that the going rate for a standard-type of injury is this or that. While the client certainly needs to know the going rate, that cannot be where the analysis ends. When I represented TWA years ago, the claims manager told me: “Brad, I can hire trained monkeys to tell me to pay the going rate for standard types of injuries. I pay you to do better than that.”

I define independent thought to be analysis on not only whether a claim is compensable but also on strategies to resolve the claim more favorably than simply paying the going rate. This means laying out a game plan that includes all necessary steps. It doesn't always work, but I know clients appreciate this analysis on the front end of a claim.

Zealous advocacy

When the vast majority of claims are compensable, defense attorneys (like insurance adjusters) can easily develop the “process and pay” mentality. I define this as simply looking at what it will cost to pay the claim and taking the fastest steps necessary to close the file and move on.

Even on compensable claims, I have found that clients are always happy to also receive (and even expect) a game plan for asserting possible defenses. To promote its $1 Dollar Menu a few years ago, McDonald's had a billboard that said: “$1 Legal Advice — Plead Guilty.” When I hear of a defense attorney simply saying: “Claim is compensable, pay this amount,” I always think this is the workers’ comp equivalent of “Plead Guilty.” Even if the employer should pay, the client wants zealous advocacy from the defense attorney on how to best reach the goal.

Regular, substantive communication

This may be the most important piece. It can be broken down into two parts – – regular communication and substantive communication.

I've had a plethora of adjusters over the years tell me war stories about their prior counsel, who would never….ever…do anything on claims. One adjuster told me: “All I ever heard from that attorney was the sound of crickets.” The defense attorney who does this not only violates the ethical duty to keep his or her client properly informed, but is also an attorney who is dealing with a future ex-client.

Employers and carriers also want substantive updates that demonstrate how the attorney is best representing the employer. Communications, whether by letters or through now-common emails, should always encapsulate where the parties are on a claim and where the defense attorney intends to take it. Letters or emails from the defense attorney that say nothing more than “Look at all of the creative ways I have billed your file this month” is NOT what employers and carriers want.

Understanding what constitutes a win

One common complaint about workers’ comp defense is, “The employer almost always loses.” That raises the question: Just what is a win, and what is a loss?

I try to resist watching legal shows on television because, even when such shows are deliciously complex, the outcome of almost every legal proceeding is either guilty or innocent. If a civil court is involved, almost every verdict is for millions of dollars or nothing even though, in reality, almost everything is resolved within the nebulous middle ground. I guess that’s why it’s called fiction.

In workers’ compensation claims, the vast majority are going to be found compensable by the state division of workers' compensation. But, to borrow some analysis from Monopoly, we’re not faced with a choice between Baltic Avenue or Boardwalk with hotels. Rather, we are more often than not fighting over whether we can buy Pacific Avenue for the price of St. Charles Place.

Because the vast majority of claims are settled, I often wonder if the client views the settlement as a win or a loss. Over the years, I have seen carriers and employers examine the relative value of a settlement by looking through the lens of the following criteria:

  • Is the settlement fair in light of the evidence available and the applicable jurisdiction?  (e.g., Illinois claims settle for far more than Missouri claims even if the injuries are identical.)
  • Was the claim resolved within the established reserves?
  • Were the defenses that were raised truly sufficient to obtain a non-compensable award or were they only good enough to use for settlement negotiations?

Creative attempts at problem-solving

All carriers and employers know that most claims are compensable. Rarely have I had clients who expected an award of “not compensable” on every claim or even on most claims.

But most clients expect the defense attorney to at least examine all potential defenses to evaluate how the assertion of such defenses might affect the value of the claim. 

Despite the lofty views that most attorneys have of our profession, most of our jobs can often be distilled down to this concept: We help our clients avoid obstacles. While this is self-evident in criminal law (obstacle — the state wants to put client in prison), such analysis is rarely applied to workers’ comp. 

For example, if a claimant states, “My injury occurred on the job,” this may or may not actually be the case. My job as a defense attorney is to identify factual, medical and legal evidence that might persuade the judge that the “work-related” component of the employee’s injury is not as clear-cut as the employee may believe.

I had one case years ago where the employee claimed he was injured on the job. In his deposition, he admitted that he liked to ride the bull in rodeos. It occurred to me that there must be some association that keeps track of who rides in professional rodeos, and I contacted the Missouri Rodeo Association. I was “shocked” (insert mock assertion of surprise here) that the claimant’s medical care ALWAYS seemed to occur exactly one day after he competed in professional rodeos. After I provided this information to opposing counsel, the claim was quickly dismissed.

My point — the employee’s assertion that he was hurt on the job would normally be sufficient to prove compensability in the absence of other evidence, but my job was to find that other evidence. Carriers and employers want their counsel to explore all possible defenses, even if the probability of success is low, because occasionally (like in my rodeo case) the defenses actually work.

Sticking to your guns

If you ask an adjuster about her greatest pet peeve when it comes to dealing with defense attorneys, one example is most often cited: “I hate it when my defense attorney tells me at the beginning of the case that the claim is only worth $500, and then, on the day of trial, he tries to convince me to pay $20,000 to settle it.”

Years ago, I had a client who pulled files from another attorney and sent them to me. As I reviewed them, I saw a theme. The attorney would often say: “This claim is a fraud, and I wouldn't pay anything more than $500 to settle.” But I didn’t see ANY evidence of fraud in many of the files. I was in the unenviable position of having to tell the client that I thought these claims were not fraudulent, and I provided exposure estimates that were far higher than $500.

I was concerned that the client would say: “Gee, Brad, I liked the advice from the prior guy a lot better.” However, this did not happen. Instead, I heard this: “I thought the prior attorney was simply telling me what I wanted to hear. That's why I pulled the files and sent them to you.”

The lesson I learned here: Clients want the attorney’s honest assessment of the claim, and they don't want the defense attorney to simply tell them what the attorney thinks the client wants to hear. If the client can't rely on my analysis, then I'm not doing my job correctly. If the case is worth $20,000, I must tell this to the client as soon as it becomes possible to arrive at such a valuation. If I wait until the day of trial to disclose the true value of the claim, the client will think that I am simply afraid to take the case to trial.

Conclusion              

One could easily distill all these comments into a single concept: There must be a good working relationship between the defense attorney and the carrier/employer, one that is based on shared values, frequent communication and deliberative communication (meaning the attorney and the client jointly develop the goal for a particular claim and then both take the steps necessary to reach that goal). If reality matches this ideal, the defense attorney and the carrier/employer will probably be working together for a long time.

Top Reasons Why Injured Workers Seek Attorneys

Defying the conspicuously silent logic of the hoary adage that “what happens in Vegas, stays in Vegas,” disavowing any apostolic compulsion to confess, we herewith reveal the transparent composition of our recent presentation before the National Workers’ Compensation and Disability Conference and Expo, held in Las Vegas from Nov. 20, 2013, through Nov. 22, 2013, with apologies and atonements to David Letterman, he of the infamous Top Ten, as well as Alan Pierce, Esquire, our tactfully laconic moderator during our Vegas session on Nov. 22, allowing our panel, and our attentive audience, to review and identify the following potential causes as reasons injured workers seek attorney representation in workers’ compensation matters:

1. Claim Denial

  • This is the number one reason why injured workers hire attorneys;
  • Denials are often, but not always, triggered by claim investigation;
  • Multiple factors influence claim denials, including medical evaluations, work restrictions, availability of alternative-duty work, prior claim history, and employer input.

2. Injured Worker Represented In Prior Claim

  • The existence of a prior attorney-client relationship, obviously dependent upon prior claim outcome, will usually result in an injured worker retaining attorney for a new claim.

3. Confusing State Forms

  • Certain jurisdictions, Pennsylvania being one of them, employ compensation forms that even judges, experienced counsel, and the most highly sophisticated claims adjusters struggle to understand, in terms of their effect on compensability, disability, and related issues;
  • Receipt of a state form, accompanied by a form letter, can be confusing to an injured worker unskilled in compensationitis;
  • The same form can be the impetus for the Google keystroke, the counterpoint being to use simple, direct, and non-insulting directions for form execution and return.

4. Cessation/Termination of Claim Benefits

  • Stopping benefits, absent agreement to the stoppage, generally results in attorney retainage;
  • Employer-filed WC litigation seeking to cease/terminate claim benefits drives injured workers to attorneys.

5. Process Overwhelms and Confuses

  • Although not rocket science, it is a not uncomplicated process to secure or retain workers’ compensation benefits, particularly when potentially related to other alphabet soup statutes, such as FMLA, ADA, and Unemployment Compensation, as well as private disability coverage.

6. Dissatisfaction with Medical Care

  • Cannot get medical treatment authorized;
  • Does not like employer-designated health-care practitioner;
  • Disagrees with, or will not follow through with, treatment recommendation;
  • Cannot get the claims adjuster to answer questions regarding medical compensation benefits.

7. Third-Party Liability

  • The existence of third-party liability typically results in the involvement of personal injury attorneys, with referral to workers’ compensation claimant attorneys;
  • Potential third-party liability triggers potential subrogation lien interests of the employer/insured.

8. Google It

  • In general, the ability to find and retain skilled legal representation, in any kind of practice area, is only a computer keystroke away;
  • It is also there on the radio, on the drive to the doctor’s office;
  • It is ubiquitous;
  • It is splattered all over public transportation;
  • It is emboldened by numerous publications and periodicals.

9. Unpaid Medical Bills

  • Collection notices for unpaid medical bills drive injured workers crazy, resulting in attorney involvement.

10. I Hate My Job Almost as Much as I Hate My Boss

  • It happens!
  • This evidences a lack of trust, not to be confused with pure retaliation;
  • It is the perception that has festered, infecting claim dispositions.

11. Referrals by Medical Care

  • Particularly true with chiropractors, as well as physical therapists, as they tend to be quicker referral sources than other practitioners;
  • It is a symbiotic medico-legal universe.

12. Fear of Being Fired

  • Are we surprised?
  • The fear of being fired, besides producing cold sweats and trepidation, produces psychological crisis, resulting in confrontation.

13. Family Prodding

  • It is the nudge while watching TV;
  • It is the frustrated “when are you going to do something about this?”;
  • It is the stuck at home, no paycheck, no ride to the doctor, no work, and no taking out the trash, no doing house chores, building a base of friction and frustration.

Practical Tips

Is there a moral to our story?

Anyone attending the National Workers’ Compensation Disability Conference and Expo heard numerous presenters characterize workers’ compensation systems and procedures as having, at their core, the function of restoring injured workers’ physical and psychological capabilities to return to work to achieve pre-injury status. Several NWCDC panelists underscored the humanitarian policies upon which workers’ compensation statutes and systems are structured, placing great emphasis on the moral obligation of all workers’ compensation stakeholders to employ fairness in the administration of claims. The following tips are suggested for all, in the course of dealing with injured workers:

  • Be courteous;
  • Be polite;
  • Be truthful;
  • Be fair;
  • Be direct;
  • Be responsive;
  • Be informed;
  • Be civil;
  • Avoid argument;
  • Avoid making assumptions about claim facts and claim personas;
  • Be credible;
  • Be yourself;
  • Be real.

In short, even in disputed claims, it is critically important to treat others, including the claimant, claimant’s counsel, the employer, any third parties involved in the claims administration process, defense counsel, and the administrative fact finder, as you would want others to treat you.


 

How to Tap the Secret Power of ICD-9's

The medical portion of Workers’ Compensation claims now meets or exceeds 60% of claim costs. That fact alone should easily convince payers to focus on the rich medical information in their data. Very powerful information residing in claims data is virtually untouched—diagnostic codes in the form of ICD-9’s. The problem is few in the industry really understand ICD-9’s or in what ways they could inform powerful medical management.

ICD Defined
ICD-9 codes are not unique to Workers’ Compensation. ICD-9’s are the World Health Organization's International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM). They are a standardized method of describing injuries, illnesses, and related issues worldwide.

ICD is the classification that codes and classifies mortality data worldwide. The ICD-CM is used to code and classify morbidity data from inpatient and outpatient records and doctor’s offices.

The purpose of the ICD and of WHO (World Health Organization) sponsorship is to promote international comparability in the collection, classification, processing, and presentation of mortality statistics. New revisions of the ICD are implemented periodically so that the classification also reflects advances in medical science.

ICD’s in Standard Billing Forms
Those who bill for medical services in the U.S. are required to use one of two CMS (Center for Medicare and Medicaid) standard forms, the HCFA-1500 (Health Insurance Claim Form) for outpatient and UB-04 Unified Billing) for hospitals and other facilities. Both standardized forms require the medical provider to list ICD-9’s appropriate to the medical procedures for which they are billing. The verdant data derived from these forms should be analyzed and incorporated into managed care processes.

Unwieldy and Ignored
Bill review organizations and payers capture data from the standardized billing forms in their systems. Nevertheless, while the ICD information is documented in systems, it’s use usually stops there. ICD-9’s are difficult to interpret.

ICD-9’s on bills are displayed in the form of codes, not descriptions of injuries and illnesses and they number in the thousands. Individuals cannot remember the codes, nor do they have the time to look up codes for interpretation. Instead, they simply ignore them.

Secret Power of ICD
Incremental essential knowledge resides in ICD-9 codes that can be translated to powerful medical management. When they are monitored electronically and concurrently, they reveal and inform.

ICD-9’s Reveal Migrating Claims
For instance, migrating claims accrue ICD’s. Migrating claims are those that are not going well, are becoming more complex and costly, often an insidious process that is missed by claims adjusters and medical case managers until considerable damage is done. What happens in migrating claims is the injured worker is not recovering for some reason and is referred to multiple specialists. Each specialist adds new ICD-9’s to the claim.

As a claims migrates, the number of ICD-9’s associated with it mounts.

Computer Monitoring
Using a computerized system especially designed to monitor ICD-9’s is a powerful knowledge solution. Alerts are sent to appropriate persons when the number of ICD-9’s in a claim increases beyond a designated point. Migrating claims cannot be missed and intervention is early, therefore far more effective.

ICD-9’s are Predictors
Another way to tap the secret power of ICD-9’s is to score them individually for medical severity, the seriousness of the injury or illness. Each claim then contains a total ICD-9 score in the system for medical severity. As ICD-9’s are added during the course of the claim, the claim ICD score increases. As a claim migrates and accumulates ICD-9’s, an appropriate person is automatically notified by the system. Migrating claims cannot go unnoticed.

Claims with high ICD-9 scores are predictors of risk and cost. Claim ICD-9 scores can be monitored from the outset and throughout the course of the claim.

ICD-9’s Scores Level the Playing Field
The claim ICD-9 score reveals the seriousness and complexity of a claim. Medical doctors managing difficult claims can be differentiated from those handling less arduous claims, thereby creating fairness in measuring provider performance.

Many indicators are used for claim monitoring and provider performance including medical cost, frequency and duration of treatment, indemnity costs, return to work and multiple other factors. The claim ICD medical severity score automatically predicts trouble and alerts the appropriate medical managers.

Moving on—ICD-10
The ICD-9 contains thousands of codes. Moreover, the ICD-10 revision will more than double the number of codes, making its information value exponential. ICD-10 is slated to be activated in October of 2014.

Workers' Compensation—What the Numbers Say

Even though people talk a lot about the value of analytics for workers’ compensation, few have actually implemented them in ways that provide their full value.

To improve, insurers should draw on lessons from, of all things, supermarkets. Supermarkets and grocery stores have long automatically documented transactions at the register. When those transactions are analyzed in context with other data, such as inventory turns and factors such as season and weather, conclusions can be drawn about how buying behavior, and predictions can be made. Operational decisions spring from the analytics, such as diverting high-demand inventory to regions that are projected to need it. The result is increased sales and satisfied customers.

Like the supermarket industry, the workers’ compensation industry collects data continually. Bill review systems document medical bills received and recommend payment based on data analysis. Claims systems document medical bills paid, indemnity paid, work loss, legal actions and other factors, all related to the claim. Still more data is collected related to pharmacy, utilization review and other issues.

But, amazingly, the rich data is rarely converted to operational tools like those that drive supermarkets. Most in workers’ compensation neglect to use their data to identify opportunities to mobilize action early and limit, or even thwart, potentially high risk and costly situations.

As with supermarkets that anticipate demand, insurers should analyze all available data in real time, and alerts about workers’ compensation should be sent to appropriate persons to give them the jump on problems. Adjusters and nurse case managers should receive specific information regarding new conditions so they can mobilize action—when a known, high-risk condition occurs in a claim, that information should be automatically transmitted to an appropriate person. A simple example is when multiple prescriptions of opioids are found; a nurse case manager should be electronically notified and take action. 

Besides saving money, analytics can allow for a formal infrastructure for medical management, optimizing efficiency.

So, as unlikely a model as supermarkets might appear to be, workers’ compensation companies should learn a lot from them.