Helping to Navigate the Troubled Waters of Workers Compensation
Table of Contents A False Debate on Safety Priorities pg. Resolving Medical Disputes pg. 2 Are We There Yet?: A Guide to Senate Bill 863 Lien Reform pg. 4 Delayed Recovery- A Case Study pg. 6 A False Debate on Safety Priorities by Joe Stevens There is a debate going on in safety circles regarding the most effective way to minimize injuries. One school of thought insists that training and compliance are the keys, while the other group believes that it is more important to focus on behavior. In reality, it isnt a case of one way being more effective than the other. The real key is the order in which they are implemented. A workplace free of unnecessary safety hazards and in full compliance with OSHA regulations is the starting point, the foundation, the platform. Hiring the right people for the jobs, then providing them with thorough, ongoing training in a safe and compliant workplace comes first. These are the nuts and bolts of a safety program. Only after these things are in place is the company ready to move on to behavior. An analogy that may help is to think of safety in football terms. The field must be in perfect condition, and the players must be well coached and know all the plays. Thats the equivalent of a safe workplace and excellent training. Now, in order to achieve the goal of winning, the players must perform to a high level. Thats where behavior comes in. If the field is in poor shape, and the players are not well coached, the attitude of the players is affected and we can expect the results and, most likely, the effort - to be negative. Summer 2014 If the basics arent provided, there is little chance for success. When they are provided, the coaches and the team can focus on performance. Safety in the workplace has the same formula: first make sure that basics are in place and then focus on behavior. To affect behavior positively, provide clear goals, encourage reporting of hazards and near misses, recognize contributions and record of excellence in both departments and individuals. Make everyone accountable by discussing injuries and posting results and show appreciation for a job done well, and done safely. The better the job a company does at convincing its workers that safety is its highest priority, the greater the likelihood that workers will perform safely. Joe Stevens founded Bridge Safety Consultants in 2003 with a focus on safety culture. Having served on The Governors Task Force for Workers Comp Reform in 2004, Mr. Stevens helps companies understand the cost drivers in the workers comp system, and customizes safety programs that strengthen the safety culture, produce lower X-Mods and reduce premiums. Website: www.bridgesafetyconsultants.com Email: stevens@bridgeconsultants.net Twitter: @safety_experts. Resolving Medical Disputes by James Carey The medical dispute resolution process has been evolving substantially over the past decade. We have become accustomed to hearing the acronyms of MPN and UR being thrown about on a regular basis. But do we know how to use these effectively to defend a case and manage costs? One might argue that the ongoing increases in premium rates do not show a substantial cost savings, whereas another might argue that it does not adequately ensure that the injured workers are getting the treatment they need. The truth lies somewhere in between and the reality is that we must tailor our use of these tools to each situation to ensure the best possible outcome. A prior authorization plan as part of the utilization review protocol will go far to ensure that care is delivered efficiently, costs are kept under control and ultimately, requests for independent medical review (IMR) are kept to a minimum. A custom and well-policed Medical Provider Network would go far to ensure that a certain quality of care is maintained within the network. Following is a brief outline of the medical dispute resolution process. Additional information concerning the medical-legal process and other strategies can be seen with the rest of this article on the RiskSolutions blog. 1. Utilization Review: a. Purpose: Assess medical necessity for proposed medical treatment b. When Used: For medical treatment requests on uncontested/accepted body parts c. Appeals: As of 7/1/13, all disputes concerning UR denials are to go through Independent Medical Review (IMR) d. Limitations: i. Does not address causation ii. Certification does not guarantee payment (authorization comes from adjuster) iii. If time frame is not met, presumed authorized and medical-legal exam cannot be undertaken for the sole purpose of medical necessity (Sandhagen v. SCIF) e. Caveats: i. Objection to extent & scope of medical treatment under LC 4062 defers medical necessity decisions to med-legal examiner No further referral to UR, just send denials & copies of objection to provider ii. Denied body parts can be reviewed retroactively if found compensable. iii. Approval/authorization can be rendered directly by adjuster and thus bypass UR via prior authorization protocol or at adjusters discretion 2. Second Opinion Process: a. Purpose: To address and resolve disputes concerning diagnosis or treatment plan b. When Used: For any dispute arising from the diagnosis or treatment plan from the primary treating physician (PTP) within a valid medical provider network (MPN) or health care organization (HCO) c. Appeals: Proceed to second or third opinions within MPN/HCO and then to medical-legal examination if controversy remains d . Limitations: i. Does not address causation or disability ii. Second & third opinion must come from MPN physicians (no requirement for opinion to come from specialist) e. Caveats: i. Not binding and does not automatically allow change in PTP ii. All opinions are admissible before WCAB proceedings or med-legal exams 3. Medical Provider Network (MPN) / Health Care Organization (HCO): a. Purpose: To extend medical control for the duration of a claim i. MPN: Medical in place for duration of claim if claimant properly notified 1. Notice requirements are more lenient due to SB 863 2. Treatment can be transferred out of network if failure to provide notice results in denial of medical care (solution: send claimant to industrial clinic every time) 3. Medical provider listing must be comprehensive within a reasonable distance of claimants home (typically 30 mile radius) for the requested specialty or specialties ii. HCO: Absolute medical control for 90 or 180 days 1. 90 Day Control: If employer does not offer or pay for more than 50% of employees non-occupational health care coverage 2. 180 Day Control: If employer offers or pays for more than 50% of non-occupational health care coverage 3. Medical provider listing need only list five medical providers within a reasonable distance of claimants home for requested specialty b. When Used: For medical treatment on all accepted injuries and/or body parts. c. Appeals: Second opinion process; UR & IMR; medical-legal tract (4061/4062) d. Limitations: Does not apply to disputed body parts (e.g. psyche) or denied claims, but medical control can be retained where there are multiple allegations to body parts covered by one specialty (e.g. accepted finger, denied lumbar spine) e. Caveats: i. Valdez decision: Allows for consultations secured by injured workers to address recommendations concerning medical treatment or disability, but does not allow for ongoing treatment outside of the MPN ii. Failure to provide proper notice of MPN: Allows for treatment outside of MPN, but only applies if failure results in denial of medical treatment iii. UR denials: Claimant can go out of MPN to secure if IMR overrules UR decision iv. No providers within reasonable geographic distance: If no MPN providers are present within a 30 mile radius of claimants home, claimant can treat outside of MPN network v. Denied claim: Employee is free to treat outside of MPN if claim is denied in its entirety * To see the rest of this article, please go to the Risksolutions blog at risksolutions-inc.blogspot.com James Carey, CSIA, WCCP is a graduate of the University of California, Irvine and a veteran claims adjuster with more than a decade of experience. He has handled claims at insurance companies, third party administrators and government entities with strong experience handling highly complicated cases across multiple states and jurisdictions. He brings an aggressive, employer-oriented style to the table along with practical knowledge to help employers navigate the treacherous waters of the workers compensation system. Are We There Yet?: A Guide to Senate Bill 863 Lien Reform by Lisa Sanchez Congratulations! That claim you've been struggling with has been settled by a Compromise and Release. A judge has approved it and the check has been issued. This is great news - the claim appears to have been finalized and a closed claim should be right around the corner. However, we cannot forget about those pesky little guys that can hold up the closure of a claim: LIENS. Hundreds of thousands of liens are filed each year costing the California workers compensation system hundreds of millions of dollars, according to the Workers Compensation Insurance Rating Bureau. We usually see liens filed on litigated claims, especially when medical treatment has been denied by the insurance carrier. Claims can remain open for months and even years after the case in chief has been settled due to liens. The lien reform under Senate Bill 863 creates new statutes of limitation for filing liens and, also, provisions for dismissing liens. The intention of the lien reform is to help clear the workers compensation system of lingering and inadmissible liens, while freeing up the Workers Compensation Appeals Board (WCAB) hearing calendar for more important matters. According to the Department of Industrial Relations, Division of Workers Compensation, lien claimants who wish to file a lien after January 1, 2013 now have to pay a filing fee of $150. A $100 activation fee is required for liens filed before January 1, 2013, but activated for a conference or trial after that date. Liens can be dismissed if no filing or activation fee has been filed. Additionally, there is an 18-month statute of limitations for filing liens for services rendered after July 1, 2013 and a three year statute of limitations for services provided before then. If a lien is not properly submitted with proof that the filing fee has been paid, it will be deemed invalid. Under the statute, claims of two or more providers cannot be merged into a single lien, thus requiring each provider to file a separate lien and pay separate filing fees. Unfortunately, we have already hit a major impediment with the new system. The case of Angelloti et al. v. Baker et al. challenged the provisions of the senate bill requiring activation fees and allowing for dismissal of all liens filed prior to 2013 if the $100 activation fee was not filed by January 1, 2014. The case resulted in a federal injunction against any further dismissal of liens due to a failure to pay activation fees. This negates the improvement we had already begun to see in the system. Some lien claimants with smaller claims had been choosing to abandon their claims rather than paying the fee. Now, the courts have seen a glut of lien conferences with lien claimants aggressively pursuing their claims, eager to get what they can before a final decision is issued regarding the constitutionality of the activation fees. Obviously, we may have a long road ahead before we see any lasting relief for lien resolution. Lisa Sanchez, CSIA, WCCP is a graduate of the University of California, Riverside and has a Bachelors degree in Business Administration. She is a seasoned bilingual claims adjuster with more than eight years experience, having handled claims at a self-insured, self-administered employer before being drafted to the RiskSolutions team. She brings a unique, employer-driven perspective with her and hands-on experience working one-on-one with management and injured workers alike helps employers to fathom the endless depths of Californias Workers Compensation system. Delayed Recovery A Case Study by James Carey Early intervention in delayed recovery cases is not a new concept, however, applying it to workers compensation is just starting to take hold in our industry. Most payors take this concept and apply various means of identifying potential delayed recovery cases, such as predictive modeling using pure statistical data or having adjusters or nurses identify red flags. Seldom is the next step taken- decisive action toward intervention. We have been developing and testing our own program, DREI (Delayed Recover / Early Intervention), which consists of an algorithm applied to a behavioral interview at the three-point contact coupled with predictive modeling elements and human interpretation. The results is a report with recommendations for early intervention. With these recommendations, we have seen where intervention has been successful and where a lack of action, bureaucracy, or poor understanding caused unnecessary time off work. A sample case study: We start with a young worker at a convenience store, who was robbed at gunpoint. She exhibited immediate signs of post-traumatic stress disorder as well as anxiety when talking about work. She was sent to the occupational medicine clinic right away and the doctors first report referred the patient immediately to a psychologist or psychiatrist. In conducting the initial three-point contact and running this through our program, we found a few indicators that the patient may not want to return to work right away. The first indicator is the most obvious: The patient was a victim of a violent crime, which clearly meets all of the criteria for this case to be considered AOE/COE. The next involved performance issues at work, which could demonstrate a lack of motivation for return to work (RTW). Also, the patient had some non-industrial pathology that could contribute to her overall emotional state. It was our assessment that this case needed an immediate approval for the psyche consult and could quickly become litigated if not handled expediently. Our other recommendations were to maintain frequent contact with the patient to provide additional support and to offer alternative work in an area that would not be public-facing, so as to keep the patient working and feeling productive. Unfortunately, the case did not progress as smoothly as we hoped. The adjuster submitted the request to Utilization Review (UR) but the request was rejected for being submitted on the wrong form and the new Request for Authorization form was needed to proceed. This caused an additional delay when the medical provider had to go back and duplicate their original efforts to get the patient to see a mental health provider. Contact with the adjuster further exacerbated the situation as they refused to allow any consultation without it first being approved by UR. First, this underscores an absolute need to have a pre-authorization component to a UR plan, particularly given the gravity of the situation and the urgent need for the patient to be seen by a mental health professional. Second, this also demonstrates how quickly a cost-saving measure can be misused simply for the sake of preserving rights under Sandhagen. Finally, for a carrier to have their claims department so incredibly hamstrung is beyond comprehension because it mires patient care in an impenetrable web of red tape. While the request for consultation was waylaid by an insistence to have the request processed through UR, the patient remained off work receiving temporary total disability (TTD) benefits. Had a pre-authorization program been in place, the patient could have been treating with a doctor of an appropriate specialty. For instance, if one were to sustain multiple fractures to the hand, it would only make sense to authorize an immediate referral to a hand surgeon. In this case, authorizing a referral to a psychologist would have been the common sense choice, but for some reason, it seems many adjusters these days want to avoid anything to do with psychology. Every week that went by added another payment that will ultimately go to affect the employers loss ratio and experience modification (X-Mod). Even worse, this was done under a loss-sensitive policy and not a guaranteed cost program. Finding an appropriate provider is a task in and of itself. Often, adjusters find themselves dealing with claims in remote areas where in-network medical providers are few and far between, sometimes leaving only one provider available. Generally, this provider will have a standard fee arrangement they want signed in advance before theyll treat the injured worker. In my adjusting days, I signed these right away because patient care, recovery and RTW were my top priorities. Bickering about bills was always secondary. In our case study, the adjuster had this agreement sitting on their desk for a significant period of time, thus causing another delay in treatment. When another provider who did not require a fee agreement up front was found, the patient felt driving there would be burdensome and expensive with gas prices in excess of $4 per gallon. While we all know about mileage reimbursements, its always amazed me how few injured workers know about it until I mention it to them (despite being mentioned in the cover pages on the DWC-1 claim form). That said, the nurse case manager handled this case by following the recommendations made by our program and taking regular opportunities to reach out to the patient and talk to her. One of the easiest ways to avoid costly and drawn-out litigation is to simply talk to the injured worker. Workers Compensation is downright adversarial these days and no amount of legislation is going to fix that. However, the simple act of reaching out and demonstrating care goes a whole lot further than treating each patient like a number. Treating each patient as a whole person instead of a subset of symptoms is the factor that drives our Delayed Recover / Early Intervention initiative. When we identify a patient at risk for a delayed recovery, we address both the person as a whole and a common sense case management. Though this trend may be in its infancy with Workers Compensation, it is our mission to change the status quo and aim for lower severity injuries, less litigation and a more productive work force. With medical reimbursements and permanent disability maximums on the rise, insurance is just going to get more expensive until something is done to address these cost drivers from a holistic perspective. (951) 943-6775 ext 151 Fax: (951) 943-5221 etaylor@risksolutions-Inc.com reducing the costs of doing business P .O. Box 180 17602 17th St. T ustin, CA 92780