Tag Archives: Max Koonce

Impact of COVID-19 on Workers’ Comp

Since starting the Out Front Ideas COVID-19 Briefing Webinar Series just a couple of weeks ago, we have been receiving questions from our listeners regarding COVID-19 and how it is changing the landscape of workers’ compensation. With daily changes in regulations occurring across the country, we wanted to answer the most pertinent questions affecting how we handle claims moving forward. 

Three industry experts joined us for our special edition Out Front Ideas COVID-19 Briefing Webinar Series to answer audience questions regarding the impact of COVID-19 on workers’ compensation:

  • Max Koonce – chief claims officer, Sedgwick
  • Nina McIlree, MD – vice president, medical management, Zurich North America
  • Thomas Robinson – co-author, Larson’s Workers’ Compensation Law

What does the term “presumption” refer to in workers’ compensation law?

Presumptions are mechanisms in workers’ compensation law used to switch the burden of proof in claims. Instead of the injured worker needing to prove the injury occurred in the course and scope of their employment, these presumptions state that the illness or injury is presumed to have occurred while on the job. Some presumption laws were already in place, but mainly applied to firefighters and first responders who filed claims related to heart and lung diseases, and sometimes cancer where exposure could have occurred on the job.

In the instance of COVID-19, presumptions are changing on a state-by-state basis. Several states, through either legislation or executive orders, have enacted presumptions relating to COVID-19 occurring in first responders and healthcare workers. Illinois has embraced a presumption that covers all essential business employees who could be at risk of exposure, and other states are looking at similar legislation. 

How do these presumptions define healthcare workers?

A big problem with these presumption orders is that they are often vague. Some define healthcare workers as those on the front lines treating infected patients. Other orders simply refer to “healthcare workers” and could apply to a wide variety of people employed in the healthcare system who may have no exposures to patients. Unfortunately, this lack of definition in new statutes is confusing.

See also: Sustainability in the Time of Coronavirus?  

Are presumptions rebuttable? Is it difficult for an employer to prove that an employee contracted COVID-19 somewhere other than the workplace?

While not impossible, it will be challenging, especially because the goal of presumption laws is to shift the burden of proof to the employer. However, if a fact finder can prove that exposure to the virus came from someone else (e.g., someone was showing symptoms in their household), the employer may be able to file a rebuttal. 

How does the industry handle new COVID-19 claims?

At the foundation of workers’ compensation, we determine each claim based on the merit of each case. That said, are legislative changes in presumptions necessary for cases like healthcare employees who have faced exposure to multiple patients with the virus? Healthcare workers are typically at higher risk anyway, so we already see a higher frequency of claims from their industry.

The current crisis also changes the investigative process for claims examiners. Their process has become much more detailed for COVID-19 claims, including contact tracing and testing to prove positives. In all presumptions, there is more entitlement for specific groups of employees, which creates inequity in claims, when other employees may be just at as much at risk. 

Are the testing and quarantining periods covered within a workers’ compensation claim?

This coverage varies by jurisdiction, but some have required this to be covered under workers’ compensation. Some jurisdictions require the testing and quarantine to be covered under workers’ compensation, even if the employee ultimately is shown not to have COVID-19.

What industries are filing COVID-19 claims?

Healthcare represents the highest percentage of claims, including food service within the healthcare industry. Public entities are also seeing a large number of claims due to first responders. Combined, these industries cover about 65% to 70% of COVID-19 claims. The rest of the claims are coming from essential industries, like grocery stores, where employees cannot practice shelter in place or social distancing. There were also a few early exposure claims from the transportation industry, like airlines, but, with travel regulations in place, those have now almost entirely dropped off.

What is an employer’s liability claim?

When workers’ compensation was initially crafted, employees gave up their right to civil litigation for workplace injuries in exchange for guaranteed no-fault benefits. Under this agreement, workers’ compensation is the “exclusive remedy” for employees who suffer a workplace injury. Employer’s liability is the potential exception to this exclusive remedy. Under very narrow circumstances, certain states allow an injured employee to pursue civil litigation, alleging that the actions of the employer created a situation where the injury was “substantially certain” to occur. In regards to COVID-19, there has been some litigation filed alleging the employer did not provide proper protective equipment and knew employees risked exposure.

If we release an injured worker for modified work, but work isn’t available because of current conditions, do examiners continue temporary transitional employment (TTE)?

Because every state has its own workers’ compensation laws, the answer varies. Some states will insist that benefits be continued for a light-duty release even when an employer has no control over whether a business is currently operating due to current regulations. With a full-duty release, when many businesses are closed currently, the employee would collect unemployment in lieu of workers’ compensation benefits. Continuation of healthcare benefits for injured employees is the most crucial consideration currently, so we can encourage a return to work when businesses do reopen. 

Is workers’ compensation litigation continuing given the current crisis?

State agencies are trying to manage litigation in a few different ways. Some states are using virtual or telephonic processes to work through settlement hearings. Others are using an alternative notarization process, where you can see all members signing necessary documents. The remaining states are using limited staff to process documents needed for litigation to work through the process. There are state agency matrices designed to inform clients and examiners what methods they are using and whether they are currently operating. There is a prioritization of resolutions currently because the public is facing so many uncertainties in their daily lives.

See also: What Comes After the Coronavirus  

When does an employer need to report a claim involving COVID-19 to its carrier or claims administrator?

The best practice is always to report it as you would with any other work-related illness. If an employee says he has been exposed to the virus on the job and wants to file a claim, file it. Consider the future of not filing a COVID-19 claim. For example, does it leave you responsible if you did not take the necessary steps to file a claim, and OSHA gets involved, or an employee decides to file a suit? What if the employee can prove she made a clear statement about being exposed to the virus while on the job?

To listen to the full Out Front Ideas with Kimberly and Mark webinar on this topic, click here. Stay tuned for more from the Out Front Ideas COVID-19 Briefing Webinar Series, every Tuesday in April. View the full list of coming topics here.

Thought Leader in Action: At Walmart

How do you manage risk when your company is the biggest employer in the U.S. other than the federal government? Very carefully — and very well, if you’re K. Max Koonce II, the senior director of risk management at Walmart, until recently, when he took a senior position at Sedgwick. You do that partly by taking advantage of an extraordinary amount of data to identify potential problems, to use outcomes analysis to greatly shrink the number of litigation firms you use, to be highly selective about doctors used for workers’ comp and even to set up a full-sized, in-house third party administrator.

But let’s begin at the beginning:

Koonce was born in Mississippi, but his family moved to Bentonville, AR, where he has lived most of his life with his wife and family. He attended Harding University, a private liberal arts university located in Searcy, AR, where he graduated with a BBA in economics. Thinking that economics was not as challenging a career as what he aspired to, Koonce attended the University of Arkansas William Bowen School of Law to obtain his J.D.

He was immediately hired by Walmart upon his graduation in the ’90s and was given the responsibility to set up Walmart’s internal legal defense system for the roughly 30,000 Walmart employees at the time. He and his in-house team of legal aides handled all of Walmart’s workers’ comp and ultimately much of its liability claims. The program worked so well that the governor of Arkansas appointed Koonce as an administrative law judge for the state workers’ comp commission in 1997, with Walmart’s blessing. With Koonce’s departure, Walmart eliminated the internal legal program and transferred its litigation to outside legal firms.

koonce
K. Max Koonce II

By January 2000, Koonce was appointed by the governor to the Arkansas Court of Appeals. With a vacancy in the State’s Supreme Court, Koonce ran for State Supreme Court in a partisan election. During the campaign, he shared fond memories of attending all kinds of civic events, fundraisers and county fairs around the state. When he failed to get elected, Walmart brought him back to head its risk management program that same year. The program grew dramatically with his return.

Apart from the U.S. government, Walmart is the largest employer in North America. Nearly 20 million people shop at Walmart every day, and 90% of the U.S. population lives within 15 minutes of a Walmart. If Walmart were a country, it would be the 26th-largest economy in the world. Walmart manages 11,500 retail units in 28 countries; generates $482 billion in annual sales; and has 2.2 million employees (1.4 million associates in the U.S.). Koonce exclaimed that there was no other retail company to benchmark to, so his risk management department had to make up its own risk benchmarks. Interestingly, with a tightly managed work culture and such huge numbers to work with, Walmart’s risk management statistical and actuarial claim calculations have proven to be consistently accurate for many years.

Walmart’s risk management department has grown over the years to more than 40 risk management support personnel. Walmart divides its risk portfolio by working with two competing insurance brokers. Koonce said he had an incredibly talented and dedicated team of risk management professionals working at headquarters in Bentonville. “The analytics and metrics achieved by my experts,” he said, “were as good as any in the insurance industry.” He said that no relevant risk factors in Walmart’s operation went unnoticed.

Walmart’s workers’ comp program is designed to include specific doctors and medical facilities to ensure consistent care of any injured workers. Walmart manages detailed feedback from all of its employees to continue to fine tune its workers’ comp program. Koonce stated that risk management has always been a part of the Walmart culture, going back to its founding by Sam Walton in 1962; Walton wanted to help individuals and communities save money while ensuring that the company’s operations adhere to ethical decision making, good communication and responsiveness to employees and stakeholder.

Using an “outcomes-based” approach to litigation management, Walmart’s team relies on claims data analysis and metrics to choose, evaluate and consolidate the number of workers’ comp attorney firms. Max notes: “This approach forms tighter relations with a smaller number of lawyers to create a ‘one team’ approach to litigation.” In California alone, for example, the mega-retailer reduced the number of legal defense firms from more than 20 to three. The outcomes-based litigation strategy relies on a multivariate analysis using Walmart’s own claims data. Metrics are used to benchmark attorney performance and align specific lawyers with cases depending on claim facts and knowledge about an attorney’s unique skills and experience. At Walmart, claims examiners generally choose specific defense attorneys to maintain a continuing team relationship.

Besides retail store risks, Walmart also manages the largest private trucking firm in the U.S. and delivers more prescriptions than any other retailer. Asked if he had experienced any highly unusual claims during his tenure at Walmart, Koonce said that Walmart is all about awareness, control and consistency and that claims were nearly always within an expected parameter (i.e. slip-and-fall claims) and not horrific, as some employers experience. Each store location, including Sam’s Clubs, have conscientious safety response teams that sweep the stores periodically during their shifts and respond immediately to any safety hazards like floor spills.

A unique feature of Walmart is its subsidiary, a third party claims administrator (TPA) called Claims Management Inc. (CMI), at which Koonce served as president. Located in nearby Rogers, AR, CMI administers the casualty claims, including workers’ compensation, for all Walmart stores. Although most companies with national operations use insurer claims administrators (for non-self-insured operations), or multiple regional TPAs, Walmart’s CMI operation is a sizable TPA of its own with 600 employees. As Koonce explains, “CMI provides the claims oversight the company feels is desirable to maintain good control, communication and consistency.”

Unlike most national companies, Walmart has been able to maintain a highly efficient and focused risk management program through a tight-knit organization consisting of mostly local or regional employees who live and work in Benton County, AR (pop. 242, 321). Most of Walmart’s managers have been employees who have worked their way up the corporate ladder. Sam Walton once said: “We’re all working together; that’s the secret.”

Koonce left Walmart in September to serve as senior VP of client services for Sedgwick Claims Management Services. He was succeeded by Janice Van Allen, director of risk management at Walmart, who started as a store department manager in 1992. Koonce said he’s doing what he loves most at Sedgwick — helping risk managers achieve success with their internal programs.