Tag Archives: work comp claim

Defending the Right to Bear…Toilet Lids

You would think a judge would know better. But then again, because he was also the local cemetery sexton, perhaps he was too busy to educate himself on the finer points of law regarding workers’ compensation fraud.

A former Seneca County village judge has been convicted of falsely claiming two men attacked him outside his courtroom two years ago. A jury found him guilty of insurance fraud, falsifying business records, defrauding the government and falsely reporting an incident.

The weapon he claimed to have been assaulted with? That would be the ubiquitous and sorely-in-need-of-regulating toilet tank lid. Yes, in what was sure to whip up a frenzy with the anti-toilet crowd, another seemingly innocent victim had suffered needless injury. Personally, as a pro-toilet guy, I feel compelled to urge calm and remind everyone that toilet lids don’t kill people; people kill people. While there is no specific constitutional amendment that protects the right to bear toilets, I can state unequivocally that they are essential for both number one and number two.

I sense I have strayed from my initial point.

The judge told police in August 2013 that he was attacked from behind while locking up the Waterloo Village Court. He claimed to have been choked with something and hit over the head with a heavy object. Village police, using what can only be described as excellent police investigative techniques, found the shattered lid of a toilet tank at the scene.

sen
Photo by Seneca County District Attorney’s Office

Ultimately, however, a story emerged that made it appear our jaded jurist made up the affair as part of a nefarious scheme to obtain prescription painkillers through a workers’ compensation claim. The district attorney who prosecuted the case said, “The jury heard evidence that this was a way for him to get a lifetime supply of painkillers.”

Can’t argue with him there. If you are looking for a way to get an endless supply of top-grade narcotics, then workers’ comp is where you want to be. We give that crap away like candy at Halloween.

Perhaps the fact that this guy spent nine days on a pain pump at a Rochester hospital, while doctors and nurses testified he did not sustain any injuries whatsoever from choking, a blow to the head or any kind of assault, should have been a clue. I find myself asking, then, why the pain pump? But then I remember, “Ah, yes, this was a workers’ comp case.”

Authorities report that the judge’s medical records showed, prior to the bogus assault, he’d been on prescription painkillers for lower-back pain and for gout throughout his body. He also had 20 to 30 previous insurance claims for alleged accidents.

The judge, who is not a laywer, had no known employment other than the acting village judge position — except, of course, for his position as cemetery sexton, where he is under indictment for allegedly stealing gasoline from the village. Perhaps he needed it to pick up all those prescriptions.

Honestly, we have a guy here who most likely has an obvious addiction problem and needs help beyond the two to seven years in prison he is currently facing. My bigger concern is the Waterloo village board. Despite the police department’s determination that the judge’s assault claim was false, the board re-appointed him to another term as acting village judge. Why they would do that is beyond my limited comprehension.

The lessons here are twofold. First, and most importantly, toilet lids are safe when used by responsible adults. We do not need a plethora of restrictions and regulations just because one person abused them. Second, this village judge and cemetery caretaker might be a criminal and addict, but that does not make him stupid. That designation, it would seem, is reserved for the village board, which clearly has its share of idiots.

‘4-Lanes’ Approach to Work Comp Claims

Claims operations have ascended the value chain from an “island in the stream” technical function into a key facet of the customer value proposition. To handle the growing demands, it’s important to think about work comp claims in terms of four lanes.

The first lane is governed by compliance rules and requires not just compliance awareness, but the knowhow to optimally integrate compliance into the operation.

The second lane is focused on vendor management. This needs to go beyond simply outsourcing non-core competencies. Successful companies concentrate on ways to leverage vendors to achieve superior outcomes and competitive advantage.

The third lane is defined by business rules. This is where automation is fully deployed and constantly improved. This lane draws from rules-driven facets of each of the other three lanes.

The fourth lane is the “interpersonal, interpretative and professional judgment” perspective. It relies on the subjective application of knowledge and human interaction. This lane leverages engagement, training, technology and analytics to continuously accelerate accurate decision making, enhance performance and improve quality.

The four lanes represent perspectives and should not be confused with a company’s organogram. Indeed, each lane touches every facet of any organogram found in the insurance industry today.

The compliance, vendor management, business-rules and professional judgment lanes all benefit from a strong commitment to business process improvement (BPI). Data capture and analytics that support measurement of performance along the entire claims’ value chain is integral to BPI. The BPI discipline uses data to identify best practices, implement those practices, assess their effectiveness and uncover opportunity for further improvement.

Embracing the four-lane view and BPI model will help carriers make strong, data-based decisions as they reconfigure their claims departments to control costs, stabilize case reserving and improve outcomes of their claims operations.

Great tools, talented people and sound business practices are the timeless ingredients of success, as is operational adaptivity. Today’s workers’ compensation carriers are operating in an environment of increased uncertainty and complexity. Carriers face headwinds because of a shift into a healthcare-centric business, which has caught many carriers flat-footed. Medical costs are approaching 70% of the total claims spending in many jurisdictions. The utilization and cost of pharmaceuticals is rising at a rapid rate. According to the California Workers’ Compensation Institute, pharmacy and home-medical-equipment costs have risen by  more than 250% since 2004. Today’s companies must adapt their models to concentrate on effective and efficient delivery of care that improves patient outcomes, exudes customer value and underpins superior combined ratios.

The undeniable reality is that the nature of work comp claims has changed. Traditional ideas on the core competencies necessary to operate an effective claims operation need to be challenged and adjusted. Positive differentiation and sustainable market leadership depend on effectively incorporating the ingredients of success into a well-defined strategy that produces desired results and provides an agile framework for continual business evolution.

Promoting Peace of Mind in Work Comp

An employee’s peace of mind is equal in concern with the physical injury when it comes to a worker’s comp claim. An upset employee can lose motivation, incur a bad attitude and rationalize the over-use or abuse of WC benefits. I am adamant that employee satisfaction is as key a factor in WC claim outcomes as it is in overall employee productivity and job performance.

It is not the adjuster’s primary role to manage an employee’s peace of mind at the start of a new report. While we expect good “bedside manner” from an adjuster, she must reserve a defensive position and be a “bad-cop” if necessary. An astute employer sees the opportunity in meeting an employee’s concerns at the time of an injury. It is like adding another critical brick to strengthen the foundation of employee satisfaction.

The immediate task can be simple. A little bit of confident communication goes a long way. Step one is to put yourself in the injured employee’s shoes and imagine being faced with an inability to work. It is not a comfortable feeling.

Quick Tip: Prepare a “Top-10” Information Sheet for Quick Use

Concept: Include a quick-reading “Frequently Asked Questions” checklist as part of an overall information packet for new WC claimants.

Suggested Top 10 and Recommended Answers:

1) Which doctor do I use? – Identify the preferred list, contracted clinic or emergency facility. Explain degrees of employee choice if any does exist in your jurisdiction.

2) What if I can’t do my job? – “If the doctor determines you cannot perform your job, we will try to match you with a temporary alternate assignment. If there is no ability for you to work, your wages will be paid as a WC benefit.”

3) How much will I be paid? – Provide the statutory calculation formula for the comp rate and specify that the employee’s specific rate will be determined by the claims adjuster within 48-72 hours.

4) When do I start getting checks? – Explain the jurisdictional waiting period.

5) How do medical bills get paid? – “All bills will be paid directly to the doctors/providers. You do not pay any bills for accepted and covered treatment.”

6) Do I need an attorney? – “We will help facilitate your benefits. An attorney is not necessary unless you face a disputed issue and want it to be heard by a judge. However, it is your option and right to consult an attorney at any time.”

7) What do I do next? – Explain any other internal steps and forms; explain that an adjuster will make contact and go over additional information. If you have a designated adjuster, provide a name and contact info.

8) What about my health benefits / 401k contributions, etc? – Explain your policies and the jurisdictional requirements that continue benefits during a WC claim

9) Will I lose my job or be fired? – Explain that filing a WC claim is not a basis for termination but also reserve the right for progressive discipline because of safety violations, attendance, job abandonment, fraud and any internal policies that might relate to WC situations.

10) What if I have other questions? – Provide a designated internal WC contact with an open-door policy.

Obesity as Disease: A Profound Change

The obesity rate in the U.S. has doubled in the past 15 years. More than 50% of the population is overweight, with a BMI (body mass index) between 25 and 30, and 30% have a BMI greater than 30 and are considered obese. Less than 20% of the population is at a healthy weight, with a BMI less than 25.

On June 16, 2013, the American Medical Association voted to declare obesity a disease rather than a comorbidity factor, a decision that will affect 78 million adults. The U.S. Department of Health and Human Services said the costs to U.S. businesses related to obesity exceed $13 billion each year. With the pending implementation of ICD (International Classification of Diseases) 10 codes, the reclassification of obesity is is fast becoming a reality and will dramatically affect workers’ compensation and cases related to the American Disability Act and amendments.

Before the AMA’s obesity reclassification, ICD-9 code 278 related to obesity-related medical complications rather than to obesity. The new ICD-10 coding system now identifies obesity as a disease, which needs to be addressed medically. Obesity can now become a secondary claim, and injured workers will be considered obese if they gain weight because of medications, cannot maintain a level of fitness because of a work-related injury or if their BMI exceeds 30. The conditions are all now considered work-related and must be treated as such.

The problem of obesity for employers is not confined to workers’ compensation. The Americans with Disability Act Amendment of 2008 allows for a broader scope of protection for disabilities. The classification of obesity as a disease now places an injured worker in a protected class pursuant to the ADA amendment. In fact, litigation in this area has already started. A federal district court ruled in April 2014 that obesity itself may be a disability and will be allowed to move forward under the ADA (Joseph Whittaker v. America’s Car-Mart, Eastern District of Missouri).

Obesity as an impairment

Severe obesity is a physical impairment. A sales manager of a used car dealership was terminated for requesting accommodation and won $128,000. He was considered disabled, and the essential function of the job was walking, so he was terminated without reasonable accommodation.

The judge ruled that obesity is an accepted disability and allowed him to pursue his claim against his employer. This could have substantial impact for employers as injured workers could more easily argue that their obesity is a permanent condition that impedes their ability to return to work, as opposed to a temporary life choice that can be reversed.

The Equal Employment Opportunities Commission (EEOC) has recently chimed in on obesity. According to the EEOC, severe [or morbid] obesity body weight, of more than 100% over the norm, qualifies as impairment under the ADA without proof of an underlying physiological disorder. In the last year, we have seen an increasing number of EEOC-driven obesity-related lawsuits. Federal district courts support the EEOC’s position that an employee does not have to prove an underlying condition, especially in cases where there is evidence that the employer perceived the employee’s obesity as a disability or otherwise expressed prejudice against the employee for being obese.

Workers’ compensation claims are automatically reported to CMS Medicare with a diagnosis. When the new ICD-10 codes take effect, an obesity diagnosis will be included in the claim and will require co-digital payments, future medical care or continued treatment by Medicare.

There is good news on the horizon. Reporting of a claim only happens if there is a change in condition not primarily for obesity. It is recommended that baseline testing for musculoskeletal conditions be conducted at the time of hiring and on the existing workforce. In the event of a work-related injury, if a second test is conducted that reveals no change in condition, it results in no reportable claim and no obesity issue. In the event of ADA issues, the baseline can serve to determine pre-injury condition or the need for accommodations.

What does this mean to employers?

Obesity is now considered a physical impairment that may affect an employees’ ability to perform their jobs and receive special accommodations pursuant to the ADA.

An increasingly unhealthy workforce will pose many challenges for employers in the next few years. Those that can effectively improve the health and well-being of their employee population will have a significant advantage in reducing work comp claim costs, health and welfare benefits and retaining skilled workers.

Recent studies

In a four-year study conducted by Johns Hopkins with an N value of 7,690, 85% of the injured workers studied were classified as obese. In a Duke University study involving 11,728 participants, researchers revealed that employees with a BMI greater than 40 had 11.65 claims per 100 workers, and the average claim costs were $51,010. Employees with a BMI less than 25 had 5.8 claims per 100 workers, with average claim costs of $7,503. This study found that disability costs associated with obesity are seven times higher than for those with a BMI less than 30.

A National Institute of Health study with 42,000 participants found that work-related injuries for employees with a BMI between 25 and 30 had a 15% increase in injuries, and those with a BMI higher than 30 had an increase in work-related injuries of 48%.

The connection between obesity and on the job injuries is clear and extremely costly for employers. Many employers have struggled with justifying the cost of instituting wellness programs just on the basic ROI calculations. They were limiting the potential return on investment solely to the reduction in health insurance costs rather than including the costs on the workers’ comp side of the equation and the potential for lost business opportunities because of injury rates that do not meet customer performance expectations. Another key point is that many wellness programs do not include a focus on treating chronic disease that may cause workers to be more likely to be injured and prolong the recovery period.

Customer-driven safety expectations

There are many potential customers (governments, military, energy, construction) who require that their service providers, contractors and business partners meet specific safety performance requirements as measured by OSHA statistics (recordable incident rates) and National Council on Compensation Insurance (NCCI) rating (experience modifiers) and, in some cases, a full review by 3rd party organizations such as ISNet World.

Working for the best customers often requires that your company’s safety record be in the top 25th percentile to even qualify to bid. To be a world-class company with a world-class safety record requires an integrated approach to accident and injury prevention.

Challenges of an aging workforce

The Bureau of Labor Statistics projects that the labor force will increase by 12.8 million by 2020. The number of workers between ages 16 and 24 will decline 14%, and the number of workers ages 25 to 54 will increase by only 1.9%. The overall share of the labor force for 25- to 54-year-olds will decline from 68% to 65%. The number of workers 55 and older is projected to grow by 28%, or 5.5 times the rate of growth in the overall labor force.

Employers must recognize the challenge that an aging workforce will bring and begin to prepare their workforce for longer careers. A healthy and physically fit 55-year-old worker is more capable and less likely to be injured than a 35-year-old worker who is considered obese.

Treating chronic disease

Employers who want a healthy work force must recognize and treat chronic disease. Many companies have biometric testing programs (health risk assessments) and track healthcare expenditures through their various providers (brokers and insurance carriers).

The results are quite disappointing. On average, only 39% of employees participate in biometric screenings even when they are provided free of charge. For those employees who do participate and who are identified with high biometric risk (blood pressure, glucose, BMI, cholesterol), fewer than 20% treat or even manage these diseases.

This makes these employees much more susceptible to injury and significantly lengthens the disability period. The resulting financial impact on employers can be devastating.

Conclusion

Best-in-class safety results will require a combined approach to reduce injuries and to accommodate new classes of disability such as obesity. It is important that employers focus on improving the health and well-being of their workforce while creating well-developed job descriptions, identifying the essential functions, assessing physical assessments and designing job demands to fall within the declining capabilities of the American workers. It is important for an employer to only accept claims that arise out of the course and scope of employment. This is especially true with the reclassification of obesity as a disease. Baseline testing will play an essential role in separating work-related injuries from pre-existing conditions in this changing environment.