Tide TRACKER

Helping to Navigate the Troubled Waters of Workers Compensation

Summer 2015

-There are few enough victories in the world of

Workers Compensation. We when are able
achieve a significant reversal in the expected
outcome of a claim, you cant blame us for
tooting our own horn. In that spirit, we offer
the following:

We here at RiskSolutions
are dedicated to upholding
the highest standard in
claims
advocacy
and
ensuring
that
claims
administrators and defense
attorneys alike are held not
only to the standards of
industry best practice, but to our own
rigorous expectations for beneficial
outcomes for our clients. At times, this
means defying an adjusters rationale for
settling a case rather than risking further
litigation.
Recently, our philosophy of vigorously
defending post-termination claims paid off
with a Take Nothing finding from a judge at
the Long Beach Workers Compensation

Appeals Board. In this case, a claimant alleged

that he sustained an injury to his lower back,
bilateral lower extremities and psychological
stress, arising from a specific incident at work.
His only problem was that he could not decide
how precisely he was injured. The version of
events told to the employer, his treating
physician, and under oath all differed.
Initially, the adjuster recommended settling the
case for an unacceptably high value as the
claimant had rejected multiple prior offers. Our
analysts picked up on this tactic right away and
requested the adjuster to take all settlement
offers off of the table. Additionally, our analysts
followed up diligently with the employer and
defense attorney to encourage them to stick to
their guns on the denial and take this case
forward to trial.

As you can see, this rare victory demonstrates

not only our commitment to defending against
bogus post-termination claims, but ensuring that
all available strategies are employed. Our
It
is
important
to
analysts are trained to zero in on these retaliatory
understand that a strong
claims and explore the claimants credibility
safety culture requires an
before
recommending settlement versus
ongoing commitment, and
litigation. The most exciting benefit of a Take
is not one of those things
Nothing, of course, is the accompanying Unit Stat
that get fixed.
revision with the WCIRB that wipes the claim
from the employers experience modification as
if it never happened. Nothing makes us happier Recently a company we know decided to
terminate their safety achievement program.
than a Take Nothing.
Their program was built on monthly
meetings in which the workforce was
engaged. The workers were appreciated for
their contributions and suggestions, and
recognized for both team and department
accomplishments. Every meeting featured
the workers as active participants,
applauding and supporting each others
efforts to establish a safe and injury-free
workplace.
In this case, the companys injury record had
gone down dramatically in the two years that
the program was in place, with 75% fewer
claims than prior to the program. Based on
that, management decided that the program
had done its job, and was no longer needed.
The problem was "fixed" and a stronger
safety culture had now been established.
Really? Actually, there are several problems
with that. Safety culture affecting most
injuries- can never be established as a
permanent value; not without constant
involvement and engagement. It requires a
commitment on everyones part especially

management- to the belief that safety is the

highest priority in the company. Productivity
is important, but it doesnt outrank the
personal safety of every individual who works
for the company.
By minimizing engagement, this employer
sends exactly the wrong message. When
people participate in something, it becomes
more personal, and when people view safety in
a personal light, they are more likely to take
personal responsibility for their behavior.
When that happens they are less likely to take
unnecessary risks and chances, and less likely
to knowingly file a fraudulent claim.
Ultimately, its the attitude that the workers
have towards safety that determines the
companys safety record. When this company
chose to have less engagement, the signal they
sent to their workers was that safety is now
less important than it was.
The lesson here is a simple one: the
commitment to building a strong culture of
safety needs to be genuine, and ongoing. To
have minimal injuries, safety needs to be
embraced as a core value of the organization,
with time, energy and resources devoted to its
promotion.
Engaging and celebrating the
The contract between an
people who do their jobs the right way
employer and employee is
provides an important component of a strong
one of mutual responsibility.
safety culture.
Employers are responsible
for
providing
a
safe
workplace
for
their
employees.
In turn, the employees are
responsible for performing their job duties in a
safe manner. Regularly in Workers Comp, we

see injured workers accusing their employers

of Serious and Willful Misconduct (S&W, for
short) which led to or contributed to their
injury. While employers may file the same
against an injured worker, we rarely see this,
even when it is completely justified. Either
party can be penalized if their respective
actions, which resulted in the injury, qualify as
Serious and Willful Misconduct.
Labor Code 4551 provides a remedy for such
misconduct. It states the following: Where the
injury is caused by the serious and willful
misconduct of the injured employee, the
compensation,
otherwise
recoverable,
therefore shall be reduced one-half, except:

Labor Code, it must include "conduct of a

quasi-criminal nature, the intentional doing of
something either with the knowledge that it is
likely to result in serious injury, or with a
wanton and reckless disregard of its possible
consequences". In other words, the claimant
either purposefully injured himself, or was
engaged in a criminal action that resulted in
injury.

The burden of proof lies with the employer to

establish that a Serious and Willful act was
caused by the injured employee. Although it
may be difficult to accomplish, completing a
thorough accident investigation at the onset of
each new injury is the best way to establish
intentional misconduct.
Doing everything
(a) Where the injury results in death.
possible to establish an employee's misconduct
(b) Where the injury results in a permanent not only benefits the employer but other
disability of 70 percent or over.
legitimately injured workers- those truly
(c) Where the injury is caused by the failure of intended to benefit from the Workers
the employer to comply with any provision of Compensation system.
law, or any safety order of the Division of
Occupational Safety and Health, with
reference to the safety of places of
employment.
(d) Where the injured employee is under 16
years of age at the time of injury.
The employer must file a pleading of the
Serious and Willful Misconduct within 12
months from the date of injury and it can only
be filed if there is a pending case at the
Workers Compensation Appeals Board
(WCAB) in the employers local district office.
In order for the injured employees action to be
marked as Serious and Willful, it needs to go
beyond gross negligence. According to the

What is a lien? We all know that an employer

is obligated to report an industrial injury to their
Workers Compensation carrier within 24
hours of knowledge of the injury. As an
employer, one has an obligation to furnish
medical care and treatment that is reasonably
required as a result of an industrial injury.
Should the employer or carrier deny medical
treatment, the injured worker will obtain
medical treatment on their own. In this
instance, not only has the employer lost medical
control of the claim, but now has created a
When an injured workers case finally settles, it medical lien- a service has been provided for
can feel like a time to bring out the balloons and which a doctor can seek reimbursement
celebrate. But dont pop the champagne yet. following settlement of the claim.
There may still be one more hurdle to clear:
liens. A claim can stay open for months longer, Medical liens can sometimes be more costly
due to liens.
than the case in chief. Although the injured
worker's claim may have settled, as long as liens
remain unresolved, the claim will continue to
show as 'open' on the employer's loss run. The
outstanding reserves will continue to affect the
X-Mod and the financial bottom line. It benefits
all parties to resolve the liens based on good
faith negotiated settlement - or using the
Official Medical Fee Schedule as a guideline and achieves speedier file closure.
When dealing with the liens we should :
1. Determine whether the liens are valid
(watch out- liens may be filed for treatment that
never took place).
2. Determine if the bill needs Bill Review, per
the Official Medical Fee Schedule.
3. Know your venue and judge.
4. Pay what you owe.

5. Hold the lien claimants accountable for a communicate, liens can be brought to a just and
Burden of Proof, based upon a preponderance speedy resolution, and, more importantly, the
claim can be well and truly closed.
of evidence.
6. Negotiate a settlement in good faith.
7. If necessary, move the file to a lien conference, before a judge. As a last resort, prepare
to take the case to trial.
Consideration for early settlement of the liens
must be looked at as soon as the injured
workers case has settled. The good news is
that most liens settle well below the provider's
demand. Resolving the liens through informal
negotiation will successfully avoid the hefty cost
of further litigation.
Medical liens don't have to be a huge obstacle
that drag out a claim's life. As long as parties

reducing the costs of

doing business

P.O. Box 180

17602 17th St.
Tustin, CA 92780

(951) 943-6775 ext 151

Fax: (951) 943-5221
etaylor@risksolutions-Inc.com