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EWC Magazine Issue 1 0219 SPREAD

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EXECUTIVES IN WORKERS COMPENSATION MAGAZINE ISSUE NO 1 EWC MAGAZINE EDUCATION STRATEGIES AND RESOURCES Legal Experts Special Edition THE VALUE OF DOING MORE THAN IS REQUIRED ADDING QUALITY AND VALUE PRESERVING GOVERNMENT BENEFITS MAKES FINANCIAL SENSE A SOLUTION FOR NEW CHALLENGES TERRORISM AND WORKPLACE VIOLENCE CREATING AN EMERGENCY PLAN

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CONTENTS 58 16 52 42 2 Resource Panel Guide 46 42 Peer to Peer 4 Workers Compensation 42 California s Adversarial Workers Compensation System A New Perspective 44 A Risk Manager s Perspective on Workers Compensation 4 The Value of Doing More Than Is Required 46 Risk Management 6 Medicare Watch List 3 From the Editor 9 Strategic Provider Fraud Management Leads to SIU Profitability 11 The Economic Benefit of Post Acute TBI Rehabilitation 14 The Perk that Provides Peace of Mind 16 The Chronic Pain Conundrum 19 Why Preserving Government Benefits Make Financial Sense for the Defense Terrorism and Workplace Violence 48 Management Center 48 50 52 From Vice to Virtue Turning Three Deadly Sins into Deadly Wins Build a Team of Great Communicators Guide Your B Players to Success 54 Legal New Law Now What 22 Structured Settlements Still a Good Option 56 Legislative 24 Surveillance Pros Cons 56 SB 1160 The Road to Exemption 58 Evolution from a Revolution 26 In the Spotlight One minute with industry leaders 61 Doctor s Perspective 28 Legal Experts 61 Taking the Occupational Medicine History of the Injured Worker A special advertising section that highlights 65 The QME Appointment Dissected exceptional law firms specializing in 67 Carl s Corner Workers Compensation www ewcconference com ewc magazine Negotiation tips for the claims professional 1

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CONTENTS 58 16 52 42 2 Resource Panel Guide 46 42 Peer to Peer 4 Workers Compensation 42 California s Adversarial Workers Compensation System A New Perspective 44 A Risk Manager s Perspective on Workers Compensation 4 The Value of Doing More Than Is Required 46 Risk Management 6 Medicare Watch List 3 From the Editor 9 Strategic Provider Fraud Management Leads to SIU Profitability 11 The Economic Benefit of Post Acute TBI Rehabilitation 14 The Perk that Provides Peace of Mind 16 The Chronic Pain Conundrum 19 Why Preserving Government Benefits Make Financial Sense for the Defense Terrorism and Workplace Violence 48 Management Center 48 50 52 From Vice to Virtue Turning Three Deadly Sins into Deadly Wins Build a Team of Great Communicators Guide Your B Players to Success 54 Legal New Law Now What 22 Structured Settlements Still a Good Option 56 Legislative 24 Surveillance Pros Cons 56 SB 1160 The Road to Exemption 58 Evolution from a Revolution 26 In the Spotlight One minute with industry leaders 61 Doctor s Perspective 28 Legal Experts 61 Taking the Occupational Medicine History of the Injured Worker A special advertising section that highlights 65 The QME Appointment Dissected exceptional law firms specializing in 67 Carl s Corner Workers Compensation www ewcconference com ewc magazine Negotiation tips for the claims professional 1

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From the Editor Welcome to our virtual launch party for EWC Magazine Since our beginning The Executives in Workers Compensation has aimed to connect workers compensation and risk management professionals with the finest educational and networking opportunities through its annual symposium The Executives in Workers Compensation Conference But we knew we wanted to offer more More education More strategies More resources Connection has always been our number one intention And it was the driving force to make that happen at a higher level And so an organization that didn t exist just a few years ago is now producing a magazine that appears online and in print We all know that we live at a moment of information overload where in this digital age we have greater access to resources than ever before But with this plethora of knowledge comes the risk of something essential being lost the time and ambition to ferret out the best Enter this magazine We promise to offer education information and ideas about the people and issues that matter to the workers comp industry We hope to bring you the finest in curated content to provoke and inspire never to bore And we hope you will soon come to rely on EWC Magazine as a place to find the best resources tips and tools in the industry So here is our first offering and it is filled with the best we have to offer And in the spirit of presenting the best we also wanted this inaugural issue to highlight an essential resource in the industry We know that as workers compensation professionals you face a variety of challenges Finding the right law firm for your needs can be one of your most challenging and important decisions As we considered the resources that would be most beneficial to readers a clear priority emerged And so we have dedicated the theme of our debut issue to Legal Experts the Attorney Edition We hope our diverse directory of law firms helps end the guesswork in selecting legal counsel Do you know someone who would benefit from EWC Magazine By all means forward it to them Our free and untethered content allows unlimited sharing Did someone else forward this to you Then sign up at www EWCconference ewc magazine to subscribe Finally this magazine wouldn t be possible without our managing editor Lacey Atkinson Funny how life has a way of coming full circle I met Lacey in journalism class in junior high school We quickly became best friends She is one of the most talented people I know She seems to be able to do everything flawlessly and effortlessly Lacey has always cherished all things to do with the written word She s a fantastic writer and editor and adores reading and researching I would like to personally thank Lacey for her dedication to EWC Magazine and the countless hours spent transforming the dream of our magazine into reality This picture taken the year that we met captures the quintessential summer day when friendship and laughter and a heaping measure of pool shenanigans filled our days The photo is now faded but those memories of journalism class and the memories in between have not Who would have guessed that the two carefree youthful girls in that photo would one day return to their roots and produce a magazine for the workers compensation industry We hope that you enjoy this magazine find valuable tips and takeaways to apply to your work life and discover a new service provider or a few from our Legal Experts or Resource Panel Guide to save your company time and money Henry David Thoreau said If one advances confidently in the direction of his dreams and endeavors to live the life which he has imagined he will meet with a success unexpected in common hours We hope this magazine born of our dream to inform and inspire helps you and your team find success in all you endeavor to achieve Welcome and happy reading Together we can do great things Debra Hinz Editor in Chief Managing Editor Lacey Atkinson Art Director Hannah Peacock To advertise contact info ewcevents com 760 613 4409 l www ewcconference com ewc magazine 3

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From the Editor Welcome to our virtual launch party for EWC Magazine Since our beginning The Executives in Workers Compensation has aimed to connect workers compensation and risk management professionals with the finest educational and networking opportunities through its annual symposium The Executives in Workers Compensation Conference But we knew we wanted to offer more More education More strategies More resources Connection has always been our number one intention And it was the driving force to make that happen at a higher level And so an organization that didn t exist just a few years ago is now producing a magazine that appears online and in print We all know that we live at a moment of information overload where in this digital age we have greater access to resources than ever before But with this plethora of knowledge comes the risk of something essential being lost the time and ambition to ferret out the best Enter this magazine We promise to offer education information and ideas about the people and issues that matter to the workers comp industry We hope to bring you the finest in curated content to provoke and inspire never to bore And we hope you will soon come to rely on EWC Magazine as a place to find the best resources tips and tools in the industry So here is our first offering and it is filled with the best we have to offer And in the spirit of presenting the best we also wanted this inaugural issue to highlight an essential resource in the industry We know that as workers compensation professionals you face a variety of challenges Finding the right law firm for your needs can be one of your most challenging and important decisions As we considered the resources that would be most beneficial to readers a clear priority emerged And so we have dedicated the theme of our debut issue to Legal Experts the Attorney Edition We hope our diverse directory of law firms helps end the guesswork in selecting legal counsel Do you know someone who would benefit from EWC Magazine By all means forward it to them Our free and untethered content allows unlimited sharing Did someone else forward this to you Then sign up at www EWCconference ewc magazine to subscribe Finally this magazine wouldn t be possible without our managing editor Lacey Atkinson Funny how life has a way of coming full circle I met Lacey in journalism class in junior high school We quickly became best friends She is one of the most talented people I know She seems to be able to do everything flawlessly and effortlessly Lacey has always cherished all things to do with the written word She s a fantastic writer and editor and adores reading and researching I would like to personally thank Lacey for her dedication to EWC Magazine and the countless hours spent transforming the dream of our magazine into reality This picture taken the year that we met captures the quintessential summer day when friendship and laughter and a heaping measure of pool shenanigans filled our days The photo is now faded but those memories of journalism class and the memories in between have not Who would have guessed that the two carefree youthful girls in that photo would one day return to their roots and produce a magazine for the workers compensation industry We hope that you enjoy this magazine find valuable tips and takeaways to apply to your work life and discover a new service provider or a few from our Legal Experts or Resource Panel Guide to save your company time and money Henry David Thoreau said If one advances confidently in the direction of his dreams and endeavors to live the life which he has imagined he will meet with a success unexpected in common hours We hope this magazine born of our dream to inform and inspire helps you and your team find success in all you endeavor to achieve Welcome and happy reading Together we can do great things Debra Hinz Editor in Chief Managing Editor Lacey Atkinson Art Director Hannah Peacock To advertise contact info ewcevents com 760 613 4409 l www ewcconference com ewc magazine 3

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WORKERS COMPENSATION Hidden costs to the patient and workers compensation carrier arise when using non ATP providers for injured workers needing complex mobility products loss of reputation with carriers case managers and adjusters The value an ASP provides to a workers compensation professional is our expertise and ability to correctly care for the injured worker s needs the first time The costs of using ATPs are small when you consider the risks to everyone involved As an ASP I can attest to The Value of Doing More Than Is Required Using ATPs to evaluate complex rehab needs pays off to everyone Especially when it involves significantly improving the injured worker s life J TIPS AND TAKEAWAYS However the cost savings are limited to the initial cost of purchasing the mobility device Hidden costs to the patient and workers compensation carrier arise when using nonATP providers for injured workers needing complex mobility products These cost savings come at a price resulting in inappropriately or poorly fitting mobility devices This risks the injured worker to further injury and the carrier to added avoidable costs These added costs often at the very least include providing replacement equipment wasting thousands of dollars Even worse many times additional hospitalizations and therapy are required which can increase costs into the hundreds of thousands 1 I personally believe that costs are also incurred to the ASP choosing not to use ATP certified providers in the form of WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET There is a difference between cost and price Price is something pay once cost is what you will pay for the life of the item l Using an ancillary service provider that only works with certified professionals in their field will ensure the best and most cost efficient outcomes Doing more than is required adds quality and value to all aspects of the workers compensation process l Brem H Maggi J Nierman D et al High Cost of Stage IV Pressure Ulcers American Journal of Surgery 2010 200 4 473 477 doi 10 1016 j amjsurg 2009 12 021 1 The Value of Doing More Than Is Required By Scott Higley Vice President of Operations at SMS National A fter working for more than 30 years in the durable medical equipment home medical equipment DME HME industry I recently accepted a position with a company that provides ancillary services to the workers compensation market During that 30 years I worked on both the manufacturing and provider side of the industry serving Medicare Medicaid and privately funded insurance clients Most of my experience focused on meeting the complex mobility needs for injured persons in the much more regulated environment of government and private insurance clients In the DME HME industry providing services to Medicare Medicaid and privately funded insurance clients the provider must meet many federal and state requirements in order to supply complex rehab equipment needs products and services One of those requirements that every provider nationwide must follow is that all personnel evaluating and fitting clients for complex rehab mobility must complete their Assistive 4 Technology Professional ATP certification ATP certification requires passing a test given by the Rehabilitation Engineering and Assistive Technology Society of North America RESNA According to RESNA org The ATP certification recognizes demonstrated competence in analyzing the needs of consumers with disabilities assisting in the selection of appropriate assistive technology for the consumers needs and providing training in the use of the selected devices So what do I mean by The Value of Doing More Than Is Required Consider this example An ancillary service provider ASP in workers compensation is not required to use ATP certified providers to perform mobility evaluations or to provide complex mobility equipment When an ASP in the workers compensation industry decides not to use an ATP certified provider they are able to potentially increase cost savings and profits when compared to another ASP providing services to a Medicare Medicaid client required to use providers with ATP certifications EWC Magazine www ewcconference com ewc magazine 5

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WORKERS COMPENSATION Hidden costs to the patient and workers compensation carrier arise when using non ATP providers for injured workers needing complex mobility products loss of reputation with carriers case managers and adjusters The value an ASP provides to a workers compensation professional is our expertise and ability to correctly care for the injured worker s needs the first time The costs of using ATPs are small when you consider the risks to everyone involved As an ASP I can attest to The Value of Doing More Than Is Required Using ATPs to evaluate complex rehab needs pays off to everyone Especially when it involves significantly improving the injured worker s life J TIPS AND TAKEAWAYS However the cost savings are limited to the initial cost of purchasing the mobility device Hidden costs to the patient and workers compensation carrier arise when using nonATP providers for injured workers needing complex mobility products These cost savings come at a price resulting in inappropriately or poorly fitting mobility devices This risks the injured worker to further injury and the carrier to added avoidable costs These added costs often at the very least include providing replacement equipment wasting thousands of dollars Even worse many times additional hospitalizations and therapy are required which can increase costs into the hundreds of thousands 1 I personally believe that costs are also incurred to the ASP choosing not to use ATP certified providers in the form of WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET There is a difference between cost and price Price is something pay once cost is what you will pay for the life of the item l Using an ancillary service provider that only works with certified professionals in their field will ensure the best and most cost efficient outcomes Doing more than is required adds quality and value to all aspects of the workers compensation process l Brem H Maggi J Nierman D et al High Cost of Stage IV Pressure Ulcers American Journal of Surgery 2010 200 4 473 477 doi 10 1016 j amjsurg 2009 12 021 1 The Value of Doing More Than Is Required By Scott Higley Vice President of Operations at SMS National A fter working for more than 30 years in the durable medical equipment home medical equipment DME HME industry I recently accepted a position with a company that provides ancillary services to the workers compensation market During that 30 years I worked on both the manufacturing and provider side of the industry serving Medicare Medicaid and privately funded insurance clients Most of my experience focused on meeting the complex mobility needs for injured persons in the much more regulated environment of government and private insurance clients In the DME HME industry providing services to Medicare Medicaid and privately funded insurance clients the provider must meet many federal and state requirements in order to supply complex rehab equipment needs products and services One of those requirements that every provider nationwide must follow is that all personnel evaluating and fitting clients for complex rehab mobility must complete their Assistive 4 Technology Professional ATP certification ATP certification requires passing a test given by the Rehabilitation Engineering and Assistive Technology Society of North America RESNA According to RESNA org The ATP certification recognizes demonstrated competence in analyzing the needs of consumers with disabilities assisting in the selection of appropriate assistive technology for the consumers needs and providing training in the use of the selected devices So what do I mean by The Value of Doing More Than Is Required Consider this example An ancillary service provider ASP in workers compensation is not required to use ATP certified providers to perform mobility evaluations or to provide complex mobility equipment When an ASP in the workers compensation industry decides not to use an ATP certified provider they are able to potentially increase cost savings and profits when compared to another ASP providing services to a Medicare Medicaid client required to use providers with ATP certifications EWC Magazine www ewcconference com ewc magazine 5

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WORKERS COMPENSATION Group Health Plan NGHP User Guide Version 5 3 December 15 2017 This latest edition provides reporting updates involving CMS SSNRI MBI initiative ORM termination ICD 10 exclusions matters related to the retiree drug subsidy RDS and contact protocol for Section 111 data escalation Medicare Watch List Staying ahead of the Medicare Secondary Payer compliance curve By Mark Popolizio Vice President of MSP Policy and Compliance at ISO Claims Partners M edicare Secondary Payer MSP compliance will continue to present formidable challenges for claims payers With each passing year MSP issues seem to grow in both number and complexity The following is a quick MSP level set and key items to continue to watch matters Specifically claims payers will still be permitted to use a claimant s Health Insurance Claim Number HICN or SSN in addition to using the new MBI in connection with standard MSP practices such as Section 111 reporting conditional payments Medicare Set Asides and using CMS various MSP portals SSNRI MBI INITIATIVE In April 2018 the Centers for Medicare and Medicaid Services CMS replaced all Medicare cards with a new unique 11 byte Medicare Beneficiary Identifier MBI number This is all part of CMS Social Security Number Removal Initiative SSNRI as mandated under the Medicare Access and CHIP Reauthorization Act MACRA of 2015 This law requires CMS to discontinue all SSN based Medicare identifiers and to reissue all Medicare cards with a new MBI by April 2019 MACRA contains a special MSP exemption that provides claims payers with flexibility in dealing with CMS on MSP SECTION 111 REPORTING It is unknown if 2019 will finally be the year CMS revisits the issues of Section 111 penalties and good faith safe harbors In December 2013 CMS sought public comment on what circumstances and factors should be considered in establishing Section 111 penalties and compliance safe harbors when a Responsible Reporting Entity RRE is unable to determine a claimant s Medicare status despite good faith efforts to do so However to date CMS has not taken any further action on these issues On another front CMS recently released an updated Section 111 Non 6 EWC Magazine CONDITIONAL PAYMENTS All eyes are closely watching what will unfold regarding CMS recent award of the Commercial Repayment Center CRC contract to Performant Financial Corporation Performant Performant assumed responsibilities from previous contractor CGI Federal on February 12 2018 The CRC is the contractor that CMS uses to process conditional payment recoveries for Non Group Health Plan NGHP claims where the claims payer is the debtor Under this process CMS uses the CRC contractor to pursue recovery against claims payers when the payer has assumed ongoing responsibility for medicals ORM prior to claim settlement This process typically impacts workers compensation no fault and med pay claims as these claims often involve ORM www ewcconference com ewc magazine CMS and Performant held a Town Hall call in January 2018 to discuss pertinent transition items Performant advises that its goal is for a seamless smooth and efficient transition Toward these objectives Performant plans to reach out to industry stakeholders and vowed to be available to stakeholders during its tenure as the CRC Other key items discussed on the call included 1 Performant will maintain the same recovery processes that CGI Federal has been using i e seeking recovery against payers in ORM situations 2 A ll current case information will be transitioned from CGI to Performant 3 P erformant will have access to completed case histories copies of communications correspondence and contact information including authorizations 4 A ll recovery processes including established timeframes will remain the same As Performant takes over the industry will need to closely monitor what changes if any the new contractor makes to the CRC recovery process and evaluate any differences from the industry s interaction with CGI Federal over the past few years 7

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WORKERS COMPENSATION Group Health Plan NGHP User Guide Version 5 3 December 15 2017 This latest edition provides reporting updates involving CMS SSNRI MBI initiative ORM termination ICD 10 exclusions matters related to the retiree drug subsidy RDS and contact protocol for Section 111 data escalation Medicare Watch List Staying ahead of the Medicare Secondary Payer compliance curve By Mark Popolizio Vice President of MSP Policy and Compliance at ISO Claims Partners M edicare Secondary Payer MSP compliance will continue to present formidable challenges for claims payers With each passing year MSP issues seem to grow in both number and complexity The following is a quick MSP level set and key items to continue to watch matters Specifically claims payers will still be permitted to use a claimant s Health Insurance Claim Number HICN or SSN in addition to using the new MBI in connection with standard MSP practices such as Section 111 reporting conditional payments Medicare Set Asides and using CMS various MSP portals SSNRI MBI INITIATIVE In April 2018 the Centers for Medicare and Medicaid Services CMS replaced all Medicare cards with a new unique 11 byte Medicare Beneficiary Identifier MBI number This is all part of CMS Social Security Number Removal Initiative SSNRI as mandated under the Medicare Access and CHIP Reauthorization Act MACRA of 2015 This law requires CMS to discontinue all SSN based Medicare identifiers and to reissue all Medicare cards with a new MBI by April 2019 MACRA contains a special MSP exemption that provides claims payers with flexibility in dealing with CMS on MSP SECTION 111 REPORTING It is unknown if 2019 will finally be the year CMS revisits the issues of Section 111 penalties and good faith safe harbors In December 2013 CMS sought public comment on what circumstances and factors should be considered in establishing Section 111 penalties and compliance safe harbors when a Responsible Reporting Entity RRE is unable to determine a claimant s Medicare status despite good faith efforts to do so However to date CMS has not taken any further action on these issues On another front CMS recently released an updated Section 111 Non 6 EWC Magazine CONDITIONAL PAYMENTS All eyes are closely watching what will unfold regarding CMS recent award of the Commercial Repayment Center CRC contract to Performant Financial Corporation Performant Performant assumed responsibilities from previous contractor CGI Federal on February 12 2018 The CRC is the contractor that CMS uses to process conditional payment recoveries for Non Group Health Plan NGHP claims where the claims payer is the debtor Under this process CMS uses the CRC contractor to pursue recovery against claims payers when the payer has assumed ongoing responsibility for medicals ORM prior to claim settlement This process typically impacts workers compensation no fault and med pay claims as these claims often involve ORM www ewcconference com ewc magazine CMS and Performant held a Town Hall call in January 2018 to discuss pertinent transition items Performant advises that its goal is for a seamless smooth and efficient transition Toward these objectives Performant plans to reach out to industry stakeholders and vowed to be available to stakeholders during its tenure as the CRC Other key items discussed on the call included 1 Performant will maintain the same recovery processes that CGI Federal has been using i e seeking recovery against payers in ORM situations 2 A ll current case information will be transitioned from CGI to Performant 3 P erformant will have access to completed case histories copies of communications correspondence and contact information including authorizations 4 A ll recovery processes including established timeframes will remain the same As Performant takes over the industry will need to closely monitor what changes if any the new contractor makes to the CRC recovery process and evaluate any differences from the industry s interaction with CGI Federal over the past few years 7

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WORKERS COMPENSATION WORKERS COMPENSATION MEDICARE SET ASIDES WCMSAS New days are coming for WCMSAs with CMS award of the Workers Compensation Review Contract WCRC to Capitol Bridge LLC in July 2017 The WCRC is responsible for reviewing and approving WCMSA submissions Capitol Bridge will replace the current contractor Provider Resources Inc PRI Capitol Bridge took a step closer toward full transition as CMS new WCRC in midDecember 2017 when the Government Accountability Office GAO denied the bid protests filed by two contractors that challenged CMS award As with previous contractor changes it remains to be seen how the WCMSA review process will change once Capitol Bridge assumes the full WCRC reins including what impact this may have on WCMSA determination turnaround times which had greatly improved under PRI How the new contractor will handle re review requests and other challenges is also another important area to watch especially in relation to CMS new Amended Review process which provides parties with unprecedented opportunity to seek re review of prior CMS approvals in certain situations LIABILITY MEDICARE SET ASIDES LMSAS Where CMS plans to head next regarding LMSAs is another item to watch Back in June 2016 CMS announced intentions to revisit MSAs for liability cases and indicated that it planned to hold a series of Town Hall calls to address the matter In 2017 there were some indications that CMS was preparing internally for possible expansion of its MSA process For example one of the qualifying criteria for the WCRC included the contractor having the ability to handle MSAs for liability and no fault claims in the event CMS elected to expand its process CMS also issued certain internal change requests prepping its contractors on potential LMSAs and No Fault Medicare Set Asides NFMSAs Despite these behind the scenes signs to date CMS has not set any Town Hall calls or issued any additional 8 WORKERS COMPENSATION information memoranda guidance and so forth to the industry regarding what it may be contemplating for LMSAs and potentially NFMSAs A key point to watch is exactly how CMS plans to do this That is will CMS use the formal rulemaking process to establish legal regulations in the Code of Federal Regulations as they attempted in 2012 2014 or will it simply expand its MSA process through informal agency policy memoranda and guidance MEDICARE ADVANTAGE PLANS MAPS What is in store regarding Medicare Advantage Plans MAPs is another area that warrants attention MAPs continue to grow in popularity with 19 million individuals roughly 33 percent of total Medicare beneficiaries nationally now covered under a private MAP At the claims level the ongoing legal battle regarding the nature and extent of MAP lien rights continues The big question here is whether MAPs enjoy private cause of action rights permitting them to seek double damages against claims payers and other parties under 42 USC 1395y b 3 A Over the past few years several federal courts have ruled that this statute does in fact apply to MAPs thereby giving them doubledamages rights These jurisdictions include the Third Circuit Delaware New Jersey Pennsylvania and the U S Virgin Islands and Eleventh Circuit Alabama Florida and Georgia as well as the Western District of Louisiana the Eastern District of Texas the Eastern District of Tennessee and the Eastern District of Virginia In 2017 this growing list of doubledamages jurisdictions held steady However the industry needs to stay vigilant to see if other jurisdictions weigh in on the MAP private cause of action issue On this note there are two cases pending in the Central District of California that may ultimately address this issue MEDICARE PART D RX PLANS Another emerging compliance issue quietly inching up the charts involves Medicare Part D recovery Part D is Medicare s voluntary outpatient Strategic Provider Fraud Management Leads to SIU Profitability Does your SIU strategically manage your exposure to abusive and fraudulent providers By Matthew R Hopkins CIFI President of Argus West Investigative Services I f your Special Investigations Unit SIU is not actively facilitating bulk settlements or lien consolidations with abusive or fraudulent providers then you need to consider the following Your SIU program is inadequate no matter whether you have an outsourced SIU or an internal SIU Millions of dollars are being paid to fraudulent providers by your claims team resulting in significant missed savings depending on the size of your program Providers are targeting your company because they know you re not being vigilant The SIU will not become a profit center without solid management of provider fraud Most SIUs especially if they are outsourced are insufficient because they do not understand or have the experience to run a successful provider fraud case to profitably resolve the investigation through either a bulk settlement lien consolidation or other civil action It is rare to have a profitable workers compensation SIU program in California Most claims executives believe an SIU cannot be a profit center and is a large expense against their combined ratio Carriers in California spend millions of dollars every year on standard claims investigations These are frequently AOE COE surveillance and subrogation type investigations However how many carriers can say their allocated investigative claim costs are paid for by a profitable SIU program Restitution received from prosecuted claimants and premium fraud cases generally does not yield profitability alone So after the current SIU completes the clinic inspections and reviews claim files for billing patterns data mining and other red flags what do they do with that information If the SIU response is to wait for law enforcement to act that could very well be a dead end and a very costly mistake Waiting for law enforcement to act is a common practice with most if not all outsourced SIUs They just don t l l l prescription drug benefit Beneficiaries enrolled in traditional Medicare can purchase what is known as a standalone Part D plan while MAP beneficiaries may purchase a plan as part of their coverage under their particular MAP program Initially these plans were simply sending letters to claims payers asking them to confirm primary payer status injury date claimed injuries and other claim related information However over the past year or so Part D providers have started to send letters asserting recovery rights and providing a breakdown of alleged payments for reimbursement Similar to MAPs the exact nature and extent of Part D lien rights may ultimately need to be fleshed out by the courts In the meantime claims payers should note this growing area and be prepared to address potential Part D recovery issues and claims J EWC Magazine l www ewcconference com ewc magazine have the knowledge or experience to effectively resolve provider abuse and fraud by utilizing other investigative strategies Global settlements should be the SIU s first exit strategy once abuse or fraud has been determined The number one goal is to protect the company s assets from suspect providers while law enforcement investigates Even if a provider is convicted years down the road their bills and liens do not disappear Also consider how much you spend defending bills and liens on a case by case basis when you re not given a comprehensive exit strategy A company s business decision to pursue one of three potential outcomes of a global settlement a nominal amount zero sum or positive cash reimbursement does not impact a criminal case unless the settlement is more than a nominal amount Significant settlements are discouraged if the provider is suspected of fraud Having the right investigators and attorney is absolutely key to developing a case that is strong enough to bring the provider to the table with a willingness to negotiate a global settlement The majority of abusive or fraudulent providers do not want the evidence you have acquired to be shared with the industry through a lien consolidation It must be emphasized that an investigator sitting behind a desk is insufficient Your investigator needs to be out on the street developing sources obtaining statements from witnesses regarding the billing practices of the provider and gathering hard evidence otherwise the SIU will not be successful with global settlements lien consolidations or civil actions A typical SIU for many carriers can have investigative costs and SIU personnel fully loaded salaries that exceed 2 million annually If your SIU is outsourced what is your annual cost of the program ROI can be calculated by restitution received on all prosecutions and the success of global settlements lien consolidations and civil actions The bulk of profitability will come from provider successes with real dollars saved that otherwise would have been paid by the claims department had the SIU not been involved 9

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WORKERS COMPENSATION WORKERS COMPENSATION MEDICARE SET ASIDES WCMSAS New days are coming for WCMSAs with CMS award of the Workers Compensation Review Contract WCRC to Capitol Bridge LLC in July 2017 The WCRC is responsible for reviewing and approving WCMSA submissions Capitol Bridge will replace the current contractor Provider Resources Inc PRI Capitol Bridge took a step closer toward full transition as CMS new WCRC in midDecember 2017 when the Government Accountability Office GAO denied the bid protests filed by two contractors that challenged CMS award As with previous contractor changes it remains to be seen how the WCMSA review process will change once Capitol Bridge assumes the full WCRC reins including what impact this may have on WCMSA determination turnaround times which had greatly improved under PRI How the new contractor will handle re review requests and other challenges is also another important area to watch especially in relation to CMS new Amended Review process which provides parties with unprecedented opportunity to seek re review of prior CMS approvals in certain situations LIABILITY MEDICARE SET ASIDES LMSAS Where CMS plans to head next regarding LMSAs is another item to watch Back in June 2016 CMS announced intentions to revisit MSAs for liability cases and indicated that it planned to hold a series of Town Hall calls to address the matter In 2017 there were some indications that CMS was preparing internally for possible expansion of its MSA process For example one of the qualifying criteria for the WCRC included the contractor having the ability to handle MSAs for liability and no fault claims in the event CMS elected to expand its process CMS also issued certain internal change requests prepping its contractors on potential LMSAs and No Fault Medicare Set Asides NFMSAs Despite these behind the scenes signs to date CMS has not set any Town Hall calls or issued any additional 8 WORKERS COMPENSATION information memoranda guidance and so forth to the industry regarding what it may be contemplating for LMSAs and potentially NFMSAs A key point to watch is exactly how CMS plans to do this That is will CMS use the formal rulemaking process to establish legal regulations in the Code of Federal Regulations as they attempted in 2012 2014 or will it simply expand its MSA process through informal agency policy memoranda and guidance MEDICARE ADVANTAGE PLANS MAPS What is in store regarding Medicare Advantage Plans MAPs is another area that warrants attention MAPs continue to grow in popularity with 19 million individuals roughly 33 percent of total Medicare beneficiaries nationally now covered under a private MAP At the claims level the ongoing legal battle regarding the nature and extent of MAP lien rights continues The big question here is whether MAPs enjoy private cause of action rights permitting them to seek double damages against claims payers and other parties under 42 USC 1395y b 3 A Over the past few years several federal courts have ruled that this statute does in fact apply to MAPs thereby giving them doubledamages rights These jurisdictions include the Third Circuit Delaware New Jersey Pennsylvania and the U S Virgin Islands and Eleventh Circuit Alabama Florida and Georgia as well as the Western District of Louisiana the Eastern District of Texas the Eastern District of Tennessee and the Eastern District of Virginia In 2017 this growing list of doubledamages jurisdictions held steady However the industry needs to stay vigilant to see if other jurisdictions weigh in on the MAP private cause of action issue On this note there are two cases pending in the Central District of California that may ultimately address this issue MEDICARE PART D RX PLANS Another emerging compliance issue quietly inching up the charts involves Medicare Part D recovery Part D is Medicare s voluntary outpatient Strategic Provider Fraud Management Leads to SIU Profitability Does your SIU strategically manage your exposure to abusive and fraudulent providers By Matthew R Hopkins CIFI President of Argus West Investigative Services I f your Special Investigations Unit SIU is not actively facilitating bulk settlements or lien consolidations with abusive or fraudulent providers then you need to consider the following Your SIU program is inadequate no matter whether you have an outsourced SIU or an internal SIU Millions of dollars are being paid to fraudulent providers by your claims team resulting in significant missed savings depending on the size of your program Providers are targeting your company because they know you re not being vigilant The SIU will not become a profit center without solid management of provider fraud Most SIUs especially if they are outsourced are insufficient because they do not understand or have the experience to run a successful provider fraud case to profitably resolve the investigation through either a bulk settlement lien consolidation or other civil action It is rare to have a profitable workers compensation SIU program in California Most claims executives believe an SIU cannot be a profit center and is a large expense against their combined ratio Carriers in California spend millions of dollars every year on standard claims investigations These are frequently AOE COE surveillance and subrogation type investigations However how many carriers can say their allocated investigative claim costs are paid for by a profitable SIU program Restitution received from prosecuted claimants and premium fraud cases generally does not yield profitability alone So after the current SIU completes the clinic inspections and reviews claim files for billing patterns data mining and other red flags what do they do with that information If the SIU response is to wait for law enforcement to act that could very well be a dead end and a very costly mistake Waiting for law enforcement to act is a common practice with most if not all outsourced SIUs They just don t l l l prescription drug benefit Beneficiaries enrolled in traditional Medicare can purchase what is known as a standalone Part D plan while MAP beneficiaries may purchase a plan as part of their coverage under their particular MAP program Initially these plans were simply sending letters to claims payers asking them to confirm primary payer status injury date claimed injuries and other claim related information However over the past year or so Part D providers have started to send letters asserting recovery rights and providing a breakdown of alleged payments for reimbursement Similar to MAPs the exact nature and extent of Part D lien rights may ultimately need to be fleshed out by the courts In the meantime claims payers should note this growing area and be prepared to address potential Part D recovery issues and claims J EWC Magazine l www ewcconference com ewc magazine have the knowledge or experience to effectively resolve provider abuse and fraud by utilizing other investigative strategies Global settlements should be the SIU s first exit strategy once abuse or fraud has been determined The number one goal is to protect the company s assets from suspect providers while law enforcement investigates Even if a provider is convicted years down the road their bills and liens do not disappear Also consider how much you spend defending bills and liens on a case by case basis when you re not given a comprehensive exit strategy A company s business decision to pursue one of three potential outcomes of a global settlement a nominal amount zero sum or positive cash reimbursement does not impact a criminal case unless the settlement is more than a nominal amount Significant settlements are discouraged if the provider is suspected of fraud Having the right investigators and attorney is absolutely key to developing a case that is strong enough to bring the provider to the table with a willingness to negotiate a global settlement The majority of abusive or fraudulent providers do not want the evidence you have acquired to be shared with the industry through a lien consolidation It must be emphasized that an investigator sitting behind a desk is insufficient Your investigator needs to be out on the street developing sources obtaining statements from witnesses regarding the billing practices of the provider and gathering hard evidence otherwise the SIU will not be successful with global settlements lien consolidations or civil actions A typical SIU for many carriers can have investigative costs and SIU personnel fully loaded salaries that exceed 2 million annually If your SIU is outsourced what is your annual cost of the program ROI can be calculated by restitution received on all prosecutions and the success of global settlements lien consolidations and civil actions The bulk of profitability will come from provider successes with real dollars saved that otherwise would have been paid by the claims department had the SIU not been involved 9

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WORKERS COMPENSATION For a medium to large size carrier in California based upon the premium written it is very reasonable to show an SIU ROI of tenfold or even better if the SIU is managed correctly Historical data is a great indicator in determining savings For example review closed claims bill review and payment data for the past three to five years prior to the SIU becoming involved This will show how much your claims team paid the provider on average after the normal claims handling practices of bill review lien negotiations etc were performed Was it 40 percent 60 percent or more Some suspect providers were paid close to 100 percent when repackaged drugs were an issue Most suspect providers bill inflated costs that are well above fee schedule When resolved suspect providers bills are typically paid anywhere from 30 percent to 60 percent of their original total bill Sometimes the final percentage paid can be much higher depending on the type of service A successful and profitable SIU program can facilitate settlements throughout each year Fraudulent providers have walked away from well over 1 million in outstanding bills and liens Suspect providers are willing to settle quietly because they can still bill the other 99 percent of the market that has not forced them to the table With just a few bulk settlements your SIU just became profitable The savings will cover your cost of all legal fees associated with the provider case all annual standard claims investigations costs for your entire program and SIU personnel payroll and expenses while reducing your overall medical ALAE claims costs Be aware that unscrupulous providers know where marginal MPN control exists The companies that use those MPNs remain a target for these fraudulent providers An effective SIU team and a tough WORKERS COMPENSATION corporate mentality are essential along with managing litigation risk and associated costs A cohesive team proactively managing your exposure to the predatory fraudulent providers that are targeting your company will make all the difference in terms of significant savings that you can take to the bank J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Your SIU should be proactively facilitating bulk settlements or lien consolidations with abusive or fraudulent providers or they are not doing their job l A well managed SIU will be very profitable and more than pay for your investigations program l Global settlements should be the SIU s first exit strategy once abuse or fraud has been determined l The majority of abusive or fraudulent providers do not want the evidence you have acquired to be shared with the industry through a lien consolidation so they typically prefer to settle quietly behind the scenes l Suspect providers are willing to settle quietly because they can still bill the other 99 percent of the market that has not forced them to the table l Unscrupulous or fraudulent providers know where marginal MPN control exists and the companies that use those MPNs which renders those companies an easy target for ongoing fraud l The Economic Benefit of Post Acute TBI Rehabilitation Contributor Centre for Neuro Skills Contact Kelly Lopez Public Relations Communications Manager P eople who endure traumatic brain injuries TBI are often admitted into post acute rehabilitation with injuries that require medical treatment Work injuries such as falls industrial accidents and jobrelated mishaps can forestall the return to a productive life They can impede an employee s prospects for returning to work and in some cases end their career robbing them of economic independence The cost to society is also high Without appropriate medical care followed by intensive brain injury rehabilitation they can burden their family social services and the community 10 EWC Magazine www ewcconference com ewc magazine However aggressive appropriate care is a long held treatment philosophy that is proven to be effective produce long term patient progress and deliver an improved outcome and a higher return on investment Journal of Neurotrauma published a 2014 paper Post Acute Traumatic Brain Injury Rehabilitation Effects on Outcome Measures and Life Care Costs 1 which examined outcome in 44 individuals 36 traumatic brain injury patients and eight stroke patients The study reveals two crucial results lifetime cost savings and improved patient outcome for both groups An average savings of 1 5 million in lifetime healthcare costs 11

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WORKERS COMPENSATION For a medium to large size carrier in California based upon the premium written it is very reasonable to show an SIU ROI of tenfold or even better if the SIU is managed correctly Historical data is a great indicator in determining savings For example review closed claims bill review and payment data for the past three to five years prior to the SIU becoming involved This will show how much your claims team paid the provider on average after the normal claims handling practices of bill review lien negotiations etc were performed Was it 40 percent 60 percent or more Some suspect providers were paid close to 100 percent when repackaged drugs were an issue Most suspect providers bill inflated costs that are well above fee schedule When resolved suspect providers bills are typically paid anywhere from 30 percent to 60 percent of their original total bill Sometimes the final percentage paid can be much higher depending on the type of service A successful and profitable SIU program can facilitate settlements throughout each year Fraudulent providers have walked away from well over 1 million in outstanding bills and liens Suspect providers are willing to settle quietly because they can still bill the other 99 percent of the market that has not forced them to the table With just a few bulk settlements your SIU just became profitable The savings will cover your cost of all legal fees associated with the provider case all annual standard claims investigations costs for your entire program and SIU personnel payroll and expenses while reducing your overall medical ALAE claims costs Be aware that unscrupulous providers know where marginal MPN control exists The companies that use those MPNs remain a target for these fraudulent providers An effective SIU team and a tough WORKERS COMPENSATION corporate mentality are essential along with managing litigation risk and associated costs A cohesive team proactively managing your exposure to the predatory fraudulent providers that are targeting your company will make all the difference in terms of significant savings that you can take to the bank J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Your SIU should be proactively facilitating bulk settlements or lien consolidations with abusive or fraudulent providers or they are not doing their job l A well managed SIU will be very profitable and more than pay for your investigations program l Global settlements should be the SIU s first exit strategy once abuse or fraud has been determined l The majority of abusive or fraudulent providers do not want the evidence you have acquired to be shared with the industry through a lien consolidation so they typically prefer to settle quietly behind the scenes l Suspect providers are willing to settle quietly because they can still bill the other 99 percent of the market that has not forced them to the table l Unscrupulous or fraudulent providers know where marginal MPN control exists and the companies that use those MPNs which renders those companies an easy target for ongoing fraud l The Economic Benefit of Post Acute TBI Rehabilitation Contributor Centre for Neuro Skills Contact Kelly Lopez Public Relations Communications Manager P eople who endure traumatic brain injuries TBI are often admitted into post acute rehabilitation with injuries that require medical treatment Work injuries such as falls industrial accidents and jobrelated mishaps can forestall the return to a productive life They can impede an employee s prospects for returning to work and in some cases end their career robbing them of economic independence The cost to society is also high Without appropriate medical care followed by intensive brain injury rehabilitation they can burden their family social services and the community 10 EWC Magazine www ewcconference com ewc magazine However aggressive appropriate care is a long held treatment philosophy that is proven to be effective produce long term patient progress and deliver an improved outcome and a higher return on investment Journal of Neurotrauma published a 2014 paper Post Acute Traumatic Brain Injury Rehabilitation Effects on Outcome Measures and Life Care Costs 1 which examined outcome in 44 individuals 36 traumatic brain injury patients and eight stroke patients The study reveals two crucial results lifetime cost savings and improved patient outcome for both groups An average savings of 1 5 million in lifetime healthcare costs 11

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WORKERS COMPENSATION per patient stroke and traumatic brain injury combined was calculated for those who received rehabilitation the article stated Thus a greater focus on independence building life skills and individualized therapy supports cost effectiveness according to the findings of this study Conversely denial of treatment may result in additional care needs and potential dependence on public programs This can place a financial burden on insurers employers and society Without rehabilitation the average lifetime cost of a stroke patient is 2 5 million the paper noted With rehabilitation the cost for that same patient is 1 5 million The savings is 1 million A greater focus on independence building life skills and individualized therapy supports cost effectiveness Traumatic brain injury patients show even greater cost savings Without rehabilitation the lifetime costs are estimated at 3 million With rehabilitation lifetime costs are an estimated 1 5 million The lifetime savings is 1 5 million according to the research findings Thus when comprehensive medical care is integrated into a goal oriented brain injury rehabilitation program it provides a foundation for a meaningful recovery and can contain overall healthcare costs for TBI patients Certain clinical efficiencies or cost effective practices within a program also benefit patients and insurers These include All treatment being contained within one TBI program so that examiners and case managers don t have to track down reports from several medical providers and facilities The availability of transparent and accessible reporting enabling payors and insurance companies to stay informed of a patient s status medications progress in therapy medical appointments and progress via case management reports Updates on patient Activities of Daily Living ADLs and Independent Living Scale ILS scores that reflect patient status Utilizing these updates and data to modify treatment planning as needed rather than employing a one size fits all approach to rehabilitation Sharing of patient data derived from ADLs and the ILS tracked throughout rehabilitation to guide discharge planning and determine the potential of returning to work Choosing a TBI provider whose reputation and innovation in brain injury rehabilitation is widely accepted as a center of excellence by insurance companies and litigators in the workers compensation field For workers compensation insurers another consideration is the program s innovation in helping patients reintegrate into their work life or return to productivity These innovations can include recreating the patient s work environment where appropriate and possible Collaborating with the patient s employer is another potential benefit of programs that focus on skill building and independence post injury Partnering with insurers on a patient s rehabilitation journey is also a crucial aspect of innovative TBI care This includes frequent communication between insurers case managers attorneys physicians families and therapists to help each patient and their carrier maximize treatment based on coverage parameters J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Cost effectiveness and improved outcome are among the many benefits of goal oriented intensive TBI rehabilitation l The social and economic impact of stroke and TBI are mitigated when patients receive appropriate care l In the Journal of Neurotrauma article research indicated 1 5 million in lifetime healthcare savings were calculated for traumatic brain injury patients and 1 million in lifetime healthcare costs were calculated for stroke patients l 1 Griesbach G Kreber L Harrington D Ashley M 2015 Post Acute Traumatic Brain Injury Rehabilitation Effects on Outcome Measures and Life Care Costs Journal Of Neurotrauma 32 10 704 711 doi 10 1089 neu 2014 3754 l l l l l l www ewcconference com ewc magazine 13

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WORKERS COMPENSATION per patient stroke and traumatic brain injury combined was calculated for those who received rehabilitation the article stated Thus a greater focus on independence building life skills and individualized therapy supports cost effectiveness according to the findings of this study Conversely denial of treatment may result in additional care needs and potential dependence on public programs This can place a financial burden on insurers employers and society Without rehabilitation the average lifetime cost of a stroke patient is 2 5 million the paper noted With rehabilitation the cost for that same patient is 1 5 million The savings is 1 million A greater focus on independence building life skills and individualized therapy supports cost effectiveness Traumatic brain injury patients show even greater cost savings Without rehabilitation the lifetime costs are estimated at 3 million With rehabilitation lifetime costs are an estimated 1 5 million The lifetime savings is 1 5 million according to the research findings Thus when comprehensive medical care is integrated into a goal oriented brain injury rehabilitation program it provides a foundation for a meaningful recovery and can contain overall healthcare costs for TBI patients Certain clinical efficiencies or cost effective practices within a program also benefit patients and insurers These include All treatment being contained within one TBI program so that examiners and case managers don t have to track down reports from several medical providers and facilities The availability of transparent and accessible reporting enabling payors and insurance companies to stay informed of a patient s status medications progress in therapy medical appointments and progress via case management reports Updates on patient Activities of Daily Living ADLs and Independent Living Scale ILS scores that reflect patient status Utilizing these updates and data to modify treatment planning as needed rather than employing a one size fits all approach to rehabilitation Sharing of patient data derived from ADLs and the ILS tracked throughout rehabilitation to guide discharge planning and determine the potential of returning to work Choosing a TBI provider whose reputation and innovation in brain injury rehabilitation is widely accepted as a center of excellence by insurance companies and litigators in the workers compensation field For workers compensation insurers another consideration is the program s innovation in helping patients reintegrate into their work life or return to productivity These innovations can include recreating the patient s work environment where appropriate and possible Collaborating with the patient s employer is another potential benefit of programs that focus on skill building and independence post injury Partnering with insurers on a patient s rehabilitation journey is also a crucial aspect of innovative TBI care This includes frequent communication between insurers case managers attorneys physicians families and therapists to help each patient and their carrier maximize treatment based on coverage parameters J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Cost effectiveness and improved outcome are among the many benefits of goal oriented intensive TBI rehabilitation l The social and economic impact of stroke and TBI are mitigated when patients receive appropriate care l In the Journal of Neurotrauma article research indicated 1 5 million in lifetime healthcare savings were calculated for traumatic brain injury patients and 1 million in lifetime healthcare costs were calculated for stroke patients l 1 Griesbach G Kreber L Harrington D Ashley M 2015 Post Acute Traumatic Brain Injury Rehabilitation Effects on Outcome Measures and Life Care Costs Journal Of Neurotrauma 32 10 704 711 doi 10 1089 neu 2014 3754 l l l l l l www ewcconference com ewc magazine 13

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WORKERS COMPENSATION WORKERS COMPENSATION The Perk That Provides Peace of Mind Employers offer medical administration support after settlement By Porter Leslie President of Ametros C ompanies deemed best places to work typically have positive work environments strong supportive cultures and demonstrate genuine care and concern for their employees That may include everything from ping pong tables in the breakroom to helping employees with financial planning retirement investing and personal tax complexities One benefit that savvy and advocacy based employers are recently offering more and more is support for their workers who become injured on the job and later settle their claims Self insured employers insurance carriers and plaintiff attorneys are all finding that offering professional administration after settlement ensures the injured worker is well taken care of which can be a significant value add This approach helps keep workers happy and can be seen as an added benefit to working at a company Professional administration also provides peace of mind that the worker will have support for a lifetime and the reputation and brand of the company will be protected and enhanced What is professional administration The service is provided by an independent third party that sets up a dedicated bank account for the injured employee The administrator then helps to handle all of the employee s ongoing medical bills on their behalf helps them navigate the healthcare system and secures discounts for their treatment This helps their settlement money last as long as possible while providing a valuable resource In essence the professional administrator becomes the injured employee s healthcare concierge after they settle their case In addition the administrator will help employees that receive a Medicare Set Aside fulfill the reporting requirements needed to protect their Medicare benefits In some cases the administrator takes care of all the reporting Employers offering administration services on every medical settlement has become a best practice for many of the largest and highest rated employers in the country It shows the employer places a high value on its workers well being which translates to an overall positive culture and ultimately helps the organization attract and retain the best talent As many claims organizations are pursuing advocacy based claims model they are finding that offering this concierge health care service for injured workers post settlement is completing the cycle of their advocacy based claims approach resulting in more settlements a better reputation and happier workers 14 EWC Magazine AT THE SETTLEMENT TABLE Settling workers compensation claims does not always have to be a contentious and adversarial process By offering the employee support after he or she settles their case the employer extends the olive branch and shows a sign of good faith that they want the injured person to really get better Providing professional administration can truly be a win win for everyone involved Employers are able to settle claims more readily and employees can move forward from their injuries with valuable support after settlement There are typically a number of different people involved in the settlement process depending on the person s needs It s important to make sure all key parties are included and are on the same page in order for the process to go as smoothly as possible Once an injured worker has agreed to consider settling their claim an important step is to determine what is needed currently regarding their medical expenses and what they will require at various stages throughout their life based on the injury Though sometimes there is no future medical care involved often the injured party will require ongoing treatments and assistance Uncovering these needs can be done through conversation with the injured worker or their attorney with the help of medical professionals to forecast the treatments Knowing the injured worker s particular situation will help determine the makeup of the settlement team Making a professional administrator part of that team will often be a significant source of comfort for the injured party and their family They will know who they can rely on for help with ongoing medical care after the settlement is reached THE BENEFITS OF THE PROFESSIONAL ADMINISTRATOR Someone who advocates for the injured worker can be a tremendous help in taking the stress off the other parties One of the primary duties of a professional administrator is to fully explain each step required to finalize the medical portion of the settlement and answer questions that arise Concerns about Medicare Set Asides complying with Medicare reporting requirements and pricing for pharmaceuticals and medical procedures can all be addressed upfront Quality professional administrators often provide savings on medications and providers through medical networks and should be able to show comparisons of retail medications versus what prices they can offer for the same drugs The professional administrator should have a variety of resources and connections available to help at various stages of the settlement process For example they can often refer to special needs trust administrators who can be helpful in determining whether the settlement could impact Medicaid or other government funded assistance programs the injured worker may be using A professional administrator should also be able to provide transparent pricing through its networks into the real postsettlement cost of prescriptions doctors visits home health services and durable medical equipment This data gives injured parties insight into what the cost of their future medical www ewcconference com ewc magazine care will be Some professional administrators also offer postsettlement nurse case management services to provide clinical support to injured parties with complex conditions The best time to involve a professional administrator is as early as possible to be able to provide all parties with the assistance they need to come to a mutual agreement around settlement As discussed above many employers are making it a standard practice that their claims professionals introduce an administrator on every medical settlement or Medicare Set Aside MSA This is in sync with Medicare s latest addition in the WCMSA Reference Guide that it highly recommends the use of a professional administrator When a professional administrator is involved early in the settlement process administration can be quoted and included in the settlement offer and in negotiations This not only benefits the injured party as typically the carrier will cover the cost of the service so they do not have to pay for the service out of pocket but it also benefits brokers attorneys and adjusters who can use the professional administration service to make the transition to life post settlement easier After all once the injured person finalizes their settlement they become a client of the professional administrator for the rest of their life Many injured workers are thankful to their employer or attorney that helped guide them and educate them on a professional administrator Once the settlement is finalized the administrator stays involved with the injured worker throughout their life to help them navigate the medical system process bills comply with financial and government regulations and above all help empower them to take control over their life going forward Providing an outside professional to administer the medical portion of the settlement can be a powerful proposal by the employer in showing they genuinely care for their injured workers It s an excellent service for settling a case protecting Medicare and ultimately doing the right thing for an injured worker that needs the assistance J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Employers that engage the services of professional administrators on every medical settlement demonstrate they sincerely care about their employees Doing so fosters an overall positive culture within the organization l Workers who become injured and feel their employer cares about their wellbeing are more likely to be engaged in their own recoveries leading to faster healing times shorter returnto work rates and more money saved for the company l Employers payers that are willing to work closely with an injured worker to understand his or her medical expenses are finding that administration after settlement is completing the cycle of advocacy based claims approaches l Getting workers compensation claims settled is a win win for all stakeholders as it saves money for the organization and lets the worker move forward with his or her life l 15

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WORKERS COMPENSATION WORKERS COMPENSATION The Perk That Provides Peace of Mind Employers offer medical administration support after settlement By Porter Leslie President of Ametros C ompanies deemed best places to work typically have positive work environments strong supportive cultures and demonstrate genuine care and concern for their employees That may include everything from ping pong tables in the breakroom to helping employees with financial planning retirement investing and personal tax complexities One benefit that savvy and advocacy based employers are recently offering more and more is support for their workers who become injured on the job and later settle their claims Self insured employers insurance carriers and plaintiff attorneys are all finding that offering professional administration after settlement ensures the injured worker is well taken care of which can be a significant value add This approach helps keep workers happy and can be seen as an added benefit to working at a company Professional administration also provides peace of mind that the worker will have support for a lifetime and the reputation and brand of the company will be protected and enhanced What is professional administration The service is provided by an independent third party that sets up a dedicated bank account for the injured employee The administrator then helps to handle all of the employee s ongoing medical bills on their behalf helps them navigate the healthcare system and secures discounts for their treatment This helps their settlement money last as long as possible while providing a valuable resource In essence the professional administrator becomes the injured employee s healthcare concierge after they settle their case In addition the administrator will help employees that receive a Medicare Set Aside fulfill the reporting requirements needed to protect their Medicare benefits In some cases the administrator takes care of all the reporting Employers offering administration services on every medical settlement has become a best practice for many of the largest and highest rated employers in the country It shows the employer places a high value on its workers well being which translates to an overall positive culture and ultimately helps the organization attract and retain the best talent As many claims organizations are pursuing advocacy based claims model they are finding that offering this concierge health care service for injured workers post settlement is completing the cycle of their advocacy based claims approach resulting in more settlements a better reputation and happier workers 14 EWC Magazine AT THE SETTLEMENT TABLE Settling workers compensation claims does not always have to be a contentious and adversarial process By offering the employee support after he or she settles their case the employer extends the olive branch and shows a sign of good faith that they want the injured person to really get better Providing professional administration can truly be a win win for everyone involved Employers are able to settle claims more readily and employees can move forward from their injuries with valuable support after settlement There are typically a number of different people involved in the settlement process depending on the person s needs It s important to make sure all key parties are included and are on the same page in order for the process to go as smoothly as possible Once an injured worker has agreed to consider settling their claim an important step is to determine what is needed currently regarding their medical expenses and what they will require at various stages throughout their life based on the injury Though sometimes there is no future medical care involved often the injured party will require ongoing treatments and assistance Uncovering these needs can be done through conversation with the injured worker or their attorney with the help of medical professionals to forecast the treatments Knowing the injured worker s particular situation will help determine the makeup of the settlement team Making a professional administrator part of that team will often be a significant source of comfort for the injured party and their family They will know who they can rely on for help with ongoing medical care after the settlement is reached THE BENEFITS OF THE PROFESSIONAL ADMINISTRATOR Someone who advocates for the injured worker can be a tremendous help in taking the stress off the other parties One of the primary duties of a professional administrator is to fully explain each step required to finalize the medical portion of the settlement and answer questions that arise Concerns about Medicare Set Asides complying with Medicare reporting requirements and pricing for pharmaceuticals and medical procedures can all be addressed upfront Quality professional administrators often provide savings on medications and providers through medical networks and should be able to show comparisons of retail medications versus what prices they can offer for the same drugs The professional administrator should have a variety of resources and connections available to help at various stages of the settlement process For example they can often refer to special needs trust administrators who can be helpful in determining whether the settlement could impact Medicaid or other government funded assistance programs the injured worker may be using A professional administrator should also be able to provide transparent pricing through its networks into the real postsettlement cost of prescriptions doctors visits home health services and durable medical equipment This data gives injured parties insight into what the cost of their future medical www ewcconference com ewc magazine care will be Some professional administrators also offer postsettlement nurse case management services to provide clinical support to injured parties with complex conditions The best time to involve a professional administrator is as early as possible to be able to provide all parties with the assistance they need to come to a mutual agreement around settlement As discussed above many employers are making it a standard practice that their claims professionals introduce an administrator on every medical settlement or Medicare Set Aside MSA This is in sync with Medicare s latest addition in the WCMSA Reference Guide that it highly recommends the use of a professional administrator When a professional administrator is involved early in the settlement process administration can be quoted and included in the settlement offer and in negotiations This not only benefits the injured party as typically the carrier will cover the cost of the service so they do not have to pay for the service out of pocket but it also benefits brokers attorneys and adjusters who can use the professional administration service to make the transition to life post settlement easier After all once the injured person finalizes their settlement they become a client of the professional administrator for the rest of their life Many injured workers are thankful to their employer or attorney that helped guide them and educate them on a professional administrator Once the settlement is finalized the administrator stays involved with the injured worker throughout their life to help them navigate the medical system process bills comply with financial and government regulations and above all help empower them to take control over their life going forward Providing an outside professional to administer the medical portion of the settlement can be a powerful proposal by the employer in showing they genuinely care for their injured workers It s an excellent service for settling a case protecting Medicare and ultimately doing the right thing for an injured worker that needs the assistance J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Employers that engage the services of professional administrators on every medical settlement demonstrate they sincerely care about their employees Doing so fosters an overall positive culture within the organization l Workers who become injured and feel their employer cares about their wellbeing are more likely to be engaged in their own recoveries leading to faster healing times shorter returnto work rates and more money saved for the company l Employers payers that are willing to work closely with an injured worker to understand his or her medical expenses are finding that administration after settlement is completing the cycle of advocacy based claims approaches l Getting workers compensation claims settled is a win win for all stakeholders as it saves money for the organization and lets the worker move forward with his or her life l 15

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WORKERS COMPENSATION WORKERS COMPENSATION The Chronic Pain Conundrum By Mark Pew Senior Vice President of Product Development Marketing at Preferred Medical I t should come as no surprise that many people have chronic pain According to the 2012 National Health Interview Survey reported on in 2015 1 an estimated 25 3 million American adults have daily every day for the preceding three months pain and almost 40 million experience severe levels of pain But obviously pain is part of being human as the same estimates showed 126 million or 55 7 percent of all Americans reported some kind of pain during the three months prior to the survey It has generally been accepted that 100 million Americans have chronic pain defined as any pain lasting more than 12 weeks 2 That s a lot of people It should come as no surprise that opioid medications have been over prescribed for the past 20 years and that has created a national public health emergency 3 Provisional data from the National Institute on Drug Abuse4 reported 49 068 overdose deaths from opioids in 2017 134 per day Of that total 19 354 53 per day were from prescription opioids 29 406 80 per day were from synthetic opioids predominantly fentanyl and 15 958 42 per day were from heroin That s a lot of people It should come as no surprise that the use of marijuana or cannabis has increased as it becomes more legalized and normalized around the country According to the National Conference of State Legislatures 5 only four states Idaho Kansas Nebraska and South Dakota have not legalized marijuana to some degree as of July 2018 There is growing evidence anecdotal and scientific April 2014 study reported an average of 64 percent decrease in pain 6 that cannabis can help manage chronic pain There is also evidence that opioid mortality rates decrease in states where medical marijuana is legal and easily accessible to potential patients 7 although a direct cause and effect relationship is difficult to ascertain All of this leads to the very popular statement in some cases 16 stated as fact that marijuana is the solution to the opioid epidemic as Illinois8 and Pennsylvania9 have implied in recent laws The actual solution is much more complicated For some people with non cancer chronic pain prescription opioids and other painkillers relieve their pain with limited side effects and no addiction only five percent develop an addiction disorder after use for one year But not all people For some people medical cannabis has relieved pain and alleviated symptoms from other conditions and in fact has been a substitute for prescription painkillers But not all people Saying the solution is one opioids or the other cannabis is a false choice Because there are manifold other choices such as Gabapentin for neuropathic pain As needed NSAIDs like ibuprofen and acetaminophen Cognitive Behavioral Therapy CBT Acceptance and Commitment Therapy ACT biofeedback Physical therapy chiropractic treatment massage therapy Acupuncture dry needling Yoga Tai Chi stretching exercises Mindfulness deep diaphragmatic breathing Guided imagery virtual reality hypnotherapy Music therapy pet therapy aromatherapy Devices like H Wave VibraCool and SalonPas Wellness apps like calm com and curablehealth com An active lifestyle 7 8 hours of nightly sleep Anti inflammatory nutritious diet Proper hydration Do any of the above work for everybody No Does anything work for everybody No So what is the answer to effectively managing chronic pain It is an individualized approach to pain management that yields high function with limited side effects where the benefits l l l l l l l l l l l l l l l EWC Magazine www ewcconference com ewc magazine 17

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WORKERS COMPENSATION WORKERS COMPENSATION The Chronic Pain Conundrum By Mark Pew Senior Vice President of Product Development Marketing at Preferred Medical I t should come as no surprise that many people have chronic pain According to the 2012 National Health Interview Survey reported on in 2015 1 an estimated 25 3 million American adults have daily every day for the preceding three months pain and almost 40 million experience severe levels of pain But obviously pain is part of being human as the same estimates showed 126 million or 55 7 percent of all Americans reported some kind of pain during the three months prior to the survey It has generally been accepted that 100 million Americans have chronic pain defined as any pain lasting more than 12 weeks 2 That s a lot of people It should come as no surprise that opioid medications have been over prescribed for the past 20 years and that has created a national public health emergency 3 Provisional data from the National Institute on Drug Abuse4 reported 49 068 overdose deaths from opioids in 2017 134 per day Of that total 19 354 53 per day were from prescription opioids 29 406 80 per day were from synthetic opioids predominantly fentanyl and 15 958 42 per day were from heroin That s a lot of people It should come as no surprise that the use of marijuana or cannabis has increased as it becomes more legalized and normalized around the country According to the National Conference of State Legislatures 5 only four states Idaho Kansas Nebraska and South Dakota have not legalized marijuana to some degree as of July 2018 There is growing evidence anecdotal and scientific April 2014 study reported an average of 64 percent decrease in pain 6 that cannabis can help manage chronic pain There is also evidence that opioid mortality rates decrease in states where medical marijuana is legal and easily accessible to potential patients 7 although a direct cause and effect relationship is difficult to ascertain All of this leads to the very popular statement in some cases 16 stated as fact that marijuana is the solution to the opioid epidemic as Illinois8 and Pennsylvania9 have implied in recent laws The actual solution is much more complicated For some people with non cancer chronic pain prescription opioids and other painkillers relieve their pain with limited side effects and no addiction only five percent develop an addiction disorder after use for one year But not all people For some people medical cannabis has relieved pain and alleviated symptoms from other conditions and in fact has been a substitute for prescription painkillers But not all people Saying the solution is one opioids or the other cannabis is a false choice Because there are manifold other choices such as Gabapentin for neuropathic pain As needed NSAIDs like ibuprofen and acetaminophen Cognitive Behavioral Therapy CBT Acceptance and Commitment Therapy ACT biofeedback Physical therapy chiropractic treatment massage therapy Acupuncture dry needling Yoga Tai Chi stretching exercises Mindfulness deep diaphragmatic breathing Guided imagery virtual reality hypnotherapy Music therapy pet therapy aromatherapy Devices like H Wave VibraCool and SalonPas Wellness apps like calm com and curablehealth com An active lifestyle 7 8 hours of nightly sleep Anti inflammatory nutritious diet Proper hydration Do any of the above work for everybody No Does anything work for everybody No So what is the answer to effectively managing chronic pain It is an individualized approach to pain management that yields high function with limited side effects where the benefits l l l l l l l l l l l l l l l EWC Magazine www ewcconference com ewc magazine 17

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WORKERS COMPENSATION WORKERS COMPENSATION There is not a single solution to TIPS AND TAKEAWAYS managing chronic pain Real pain management is not sedation but living as close to a full life as possible WHAT TO CONSIDER l RED FLAGS STEPS TO TAKE DON T FORGET Payers including workers compensation need to consider and pay for any treatment options that help an individual manage their chronic pain l Prescription opioids work for some but not all people with chronic pain l exceed the risks It could contain one or some of the above or methods by which pain relief is achieved and maintained not listed above There is not a single solution to managing chronic pain Real pain management is not sedation but living as close to a full life as possible In a word resilience To clean up the mess and individualize appropriate treatment for injured workers we need a bio psycho social spiritual whole person treatment model that accommodates all the options above So the conundrum is not whether chronic pain can be managed It can The question is how it will be managed and whether the patient and provider can leverage the full scope of available tools to find a combination that helps that person with that condition at this point in time It is both complex and simple at the same time But it is possible J l l l l l l l e wary of anyone that espouses either end of the spectrum B opioids are always good opioids are always bad Medical cannabis has provided relief to some with chronic pain but the current evidence is more anecdotal than scientific Be wary of anyone that espouses marijuana as the solution to the opioid epidemic the issue is much too complicated for any single solution The preferred method for managing chronic pain will always be individualized self management techniques by an engaged resilient individual e wary of anyone solely focused on a Bio Medical approach B surgery interventional procedures prescription painkillers as the Bio Psycho Social Spiritual whole person treatment model is much more effective long term on t forget old school methods for managing chronic D pain like as needed NSAIDs physical therapy chiropractic stretching exercises and deep diaphragmatic breathing While they may seem alternative to many in the United States try acupuncture dry needling yoga Tai Chi mindfulness hypnotherapy music therapy and massage therapy Reconsider common sense approaches that aren t expensive but require discipline like an active lifestyle 7 8 hours of nightly sleep an anti inflammatory diet and proper hydration National Institutes of Health 2015 Aug 11 NIH analysis shows Americans are in pain Retrieved from https www nih gov news events news releases nihanalysis shows americans are pain 2 National Institutes of Health Medline Plus 2011 Spring Chronic Pain Symptoms Diagnosis Treatment Retrieved from https medlineplus gov magazine issues spring11 articles spring11pg5 6 html 3 The White House The Opioid Crisis Retrieved from https www whitehouse gov opioids 4 National Institute on Drug Abuse 2018 Aug Overdose Death Rates Retrieved from https www drugabuse gov related topics trends statistics overdose death rates 5 National Conference of State Legislatures 2018 June 27 State Medical Marijuana Laws Retrieved from http www ncsl org research health statemedical marijuana laws aspx 6 ProCon org Patients reported 64 average decrease in chronic pain after using cannabis Retrieved from https medicalmarijuana procon org view resource php resourceID 000884 pain 7 R AND Corporation 2018 Feb 6 Link Between Medical Marijuana and Fewer Opioid Deaths Is More Complex Than Previously Reported Retrieved from https www rand org news press 2018 02 06 html 8 Chicago Tribune 2018 Aug 31 Can marijuana really replace prescription opioids for pain Some get relief but it s not a home run Retrieved from http www chicagotribune com news local breaking ct met medicalmarijuana for pain illinois 20180831 story html 9 Commonwealth of Pennsylvania Getting Medical Marijuana Retrieved from https www pa gov guides pennsylvania medical marijuana program HowtoGetMedicalMarijuana 1 Promo Code SP19EWC Through 5 31 19 Save 5 On New Hire Training Claims Practitioner in Workers Comp Fastest growing designation for new adjusters Meets State requirements for hours topics www ieatraining org cpwc Introduction to Workers Compensation In depth foundation skills for new hires Brand new on demand format now available www ieatraining org WC101 18 EWC Magazine Why Preserving Government Benefits Makes Financial Sense for the Defense By Cameron Lindahl MS Trust Officer and William Lindahl MBA Executive Director CPT Institute H ave you had a case that could not settle because the applicant or members of the household would lose eligibility for government benefits This often occurs in cases where the person is severely injured and is no longer able to work A special needs trust SNT can help you settle these cases by preserving an individual s eligibility for Medicaid or Medi Cal in California In Home Support Services IHSS and Supplemental Security Income SSI Preserving eligibility for these programs can save thousands of dollars a month for an individual with significant care needs and for services not associated with the Medicare Set Aside MSA However navigating the policy on government benefits www ewcconference com ewc magazine can be very confusing The following is an easy way to identify an applicant s government benefits and includes a discussion on the latest policy changes to mitigate these issues and help settle your cases The Omnibus Budget Reconciliation Act of 1993 OBRA 93 is a federal law that gave authority to place an unlimited amount of funds into an SNT to maintain eligibility for Medicaid IHSS and SSI These benefits support those who are disabled and unable to work in several ways First an applicant s skilled nursing facility can be paid for by Medicaid Second applicants that are community based can preserve eligibility for IHSS which can provide up to 283 hours of in home caregiving services worth thousands of dollars every month Third an SNT can also 19

Page 21

WORKERS COMPENSATION WORKERS COMPENSATION There is not a single solution to TIPS AND TAKEAWAYS managing chronic pain Real pain management is not sedation but living as close to a full life as possible WHAT TO CONSIDER l RED FLAGS STEPS TO TAKE DON T FORGET Payers including workers compensation need to consider and pay for any treatment options that help an individual manage their chronic pain l Prescription opioids work for some but not all people with chronic pain l exceed the risks It could contain one or some of the above or methods by which pain relief is achieved and maintained not listed above There is not a single solution to managing chronic pain Real pain management is not sedation but living as close to a full life as possible In a word resilience To clean up the mess and individualize appropriate treatment for injured workers we need a bio psycho social spiritual whole person treatment model that accommodates all the options above So the conundrum is not whether chronic pain can be managed It can The question is how it will be managed and whether the patient and provider can leverage the full scope of available tools to find a combination that helps that person with that condition at this point in time It is both complex and simple at the same time But it is possible J l l l l l l l e wary of anyone that espouses either end of the spectrum B opioids are always good opioids are always bad Medical cannabis has provided relief to some with chronic pain but the current evidence is more anecdotal than scientific Be wary of anyone that espouses marijuana as the solution to the opioid epidemic the issue is much too complicated for any single solution The preferred method for managing chronic pain will always be individualized self management techniques by an engaged resilient individual e wary of anyone solely focused on a Bio Medical approach B surgery interventional procedures prescription painkillers as the Bio Psycho Social Spiritual whole person treatment model is much more effective long term on t forget old school methods for managing chronic D pain like as needed NSAIDs physical therapy chiropractic stretching exercises and deep diaphragmatic breathing While they may seem alternative to many in the United States try acupuncture dry needling yoga Tai Chi mindfulness hypnotherapy music therapy and massage therapy Reconsider common sense approaches that aren t expensive but require discipline like an active lifestyle 7 8 hours of nightly sleep an anti inflammatory diet and proper hydration National Institutes of Health 2015 Aug 11 NIH analysis shows Americans are in pain Retrieved from https www nih gov news events news releases nihanalysis shows americans are pain 2 National Institutes of Health Medline Plus 2011 Spring Chronic Pain Symptoms Diagnosis Treatment Retrieved from https medlineplus gov magazine issues spring11 articles spring11pg5 6 html 3 The White House The Opioid Crisis Retrieved from https www whitehouse gov opioids 4 National Institute on Drug Abuse 2018 Aug Overdose Death Rates Retrieved from https www drugabuse gov related topics trends statistics overdose death rates 5 National Conference of State Legislatures 2018 June 27 State Medical Marijuana Laws Retrieved from http www ncsl org research health statemedical marijuana laws aspx 6 ProCon org Patients reported 64 average decrease in chronic pain after using cannabis Retrieved from https medicalmarijuana procon org view resource php resourceID 000884 pain 7 R AND Corporation 2018 Feb 6 Link Between Medical Marijuana and Fewer Opioid Deaths Is More Complex Than Previously Reported Retrieved from https www rand org news press 2018 02 06 html 8 Chicago Tribune 2018 Aug 31 Can marijuana really replace prescription opioids for pain Some get relief but it s not a home run Retrieved from http www chicagotribune com news local breaking ct met medicalmarijuana for pain illinois 20180831 story html 9 Commonwealth of Pennsylvania Getting Medical Marijuana Retrieved from https www pa gov guides pennsylvania medical marijuana program HowtoGetMedicalMarijuana 1 Promo Code SP19EWC Through 5 31 19 Save 5 On New Hire Training Claims Practitioner in Workers Comp Fastest growing designation for new adjusters Meets State requirements for hours topics www ieatraining org cpwc Introduction to Workers Compensation In depth foundation skills for new hires Brand new on demand format now available www ieatraining org WC101 18 EWC Magazine Why Preserving Government Benefits Makes Financial Sense for the Defense By Cameron Lindahl MS Trust Officer and William Lindahl MBA Executive Director CPT Institute H ave you had a case that could not settle because the applicant or members of the household would lose eligibility for government benefits This often occurs in cases where the person is severely injured and is no longer able to work A special needs trust SNT can help you settle these cases by preserving an individual s eligibility for Medicaid or Medi Cal in California In Home Support Services IHSS and Supplemental Security Income SSI Preserving eligibility for these programs can save thousands of dollars a month for an individual with significant care needs and for services not associated with the Medicare Set Aside MSA However navigating the policy on government benefits www ewcconference com ewc magazine can be very confusing The following is an easy way to identify an applicant s government benefits and includes a discussion on the latest policy changes to mitigate these issues and help settle your cases The Omnibus Budget Reconciliation Act of 1993 OBRA 93 is a federal law that gave authority to place an unlimited amount of funds into an SNT to maintain eligibility for Medicaid IHSS and SSI These benefits support those who are disabled and unable to work in several ways First an applicant s skilled nursing facility can be paid for by Medicaid Second applicants that are community based can preserve eligibility for IHSS which can provide up to 283 hours of in home caregiving services worth thousands of dollars every month Third an SNT can also 19

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WORKERS COMPENSATION Given the value of Medicaid IHSS and SSI it can often be in the defense s best interest to preserve eligibility for these government benefits to legally help offset costs to reach an agreed upon settlement amount help protect eligibility for Section 8 housing since the First Circuit Court case decision in DeCambre v Brookline Housing Authority 2016 Fourth after President Obama signed the 21st Century Cures Act CCA in 2017 an individual may establish his or her own trust Medicaid 2017 Finally SNTs can be combined with structured settlements Medicare Set Asides and other beneficial products and programs It is extremely important to know that the Social Security Administration SSA considers an MSA a countable asset to the applicant when seeking eligibility for traditional means tested Medicaid and SSI However if the MSA allocation is titled through an SNT the assets are not counted allowing the applicant to maintain eligibility for the previously mentioned government benefits Center for Medicare and Medicaid Services 2005 NEW CHALLENGES Mitigating issues regarding government benefits is no longer the sole responsibility of the applicant attorney In the past assets from a settlement could be held in an attorney trust account while the applicant attorney established an SNT In March of 2018 the SSA released an updated Program Operations Manual System POMS which is the primary source of information used by Social Security employees to process claims for Social Security benefits Social Security Administration 2018 Part of the 2018 POMS update states that Attorney trust or escrow accounts may be a countable resource for a Medicaid or SSI recipient after all liens and fees have been paid SI 01120 201 B 4 2018 In addition even if an applicant is not legally represented providing them with a check could impact his or her eligibility because a check is considered an available resource according to the SSA 20 CFR 416 1201 b 1975 This is important for the defense to understand because they need to know how to properly disburse funds when seeking to preserve an applicant s eligibility A common reoccurring issue is when an applicant is receiving needs based benefits such as Medicaid or SSI with a stipulation that has not been irrevocably assigned to an SNT For applicants receiving SSI the stipulated payments are counted as 20 WORKERS COMPENSATION unearned income and cause a dollar for dollar reduction on their SSI income This often results in zero benefit to the applicant or worse an overpayment An overpayment is when the SSA discovers that a recipient of SSI received some form of in kind support and maintenance or income from a third party and issues a bill to repay the SSA for a portion or for all the disbursed SSI income from that timeframe 1 If the stipulated payments were disbursed for months this could cause an overpayment of thousands of dollars or cause a reduction in his or her SSI for years into the future Additionally in 35 of the 50 states commonly referred to as 1634 states eligibility for Medicaid is tied to SSI eligibility meaning losing SSI could also cost the applicant their Medicaid health care coverage 2 Even for applicants receiving Medicaid only this could cause the individual to pay more toward his or her health care coverage also referred to as an increased Share of Cost Further complicating this issue is spousal and parental deeming Deeming is when an applicant s income counts towards a disabled spouse s or minor child s income which often causes a reduction or elimination of their benefits 3 Whether intentional or not these case dynamics and the issues that arise represent the need to consult with experts on needs based government benefits Given the value of Medicaid IHSS and SSI it can often be in the defense s best interest to preserve eligibility for these government benefits to legally help offset costs to reach an agreed upon settlement amount CONCLUSION Special needs trusts can provide an immense benefit to the applicant and defense The benefit to the applicant is that it provides him or her with access to health coverage through Medicaid caregiving services IHSS and SSI income they would not have been able to receive without an SNT The benefit to the defense is that it can decrease the cost of care for the applicant Government benefits can no longer be the sole concern of the applicant attorney As an advocate for those living with disabilities we encourage you to find a qualified professional that you can lean on when you need help mitigating government benefits because it s in the best interest of everyone involved J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET A special needs trust can preserve eligibility for Medicaid SSI IHSS and in most cases Section 8 housing Preserving eligibility for these benefits can significantly reduce the cost of the care for a client that is severely injured l Before disbursing funds to a client the client should be asked what government benefits he or she is receiving Additionally this same information should be collected from other members of the household due to parental and spousal deeming l THE SOLUTION QUALIFYING To qualify to use an SNT an applicant must satisfy the Litmus Test The Litmus Test states that an applicant must be disabled and unable to work The easiest way to determine if an applicant satisfies this requirement is by identifying the types of income the applicant is receiving If the applicant is receiving income from any of the following programs he or she will qualify categorically to use an SNT Supplemental Security Income SSI Social Security Disability Insurance SSDI Social Security Retirement Traditional Medicaid The fastest way to determine if an applicant qualifies for an SNT is by having the applicant obtain a Benefit Verification Letter by visiting www ssa gov myaccount or a local SSA office Once the Benefit Verification Letter is obtained most trust providers can educate you on the available options to preserve the applicant s eligibility However a Benefit Verification Letter will not inform you if an applicant is eligible for government benefits it only informs the applicant of the programs he or she is currently receiving If you are seeking to determine if an applicant is eligible for the programs discussed above please contact a qualified special needs planning attorney from the Academy of Special Needs Planners National Academy of Elder Law Attorneys or Special Needs Alliance or a qualified Trust Officer from a trust provider that offers this service In most cases when an attorney or claims adjuster knows an applicant s forms of income and medical insurance a qualified Trust Officer can provide you with options for maximizing a settlement after only 10 15 minutes on the phone Providing a recipient of needs based government benefits with access to funds of any kind can reduce or eliminate his or her eligibility for the government benefits they rely on This mistake is most commonly made by distributing stipulations MSA allocations and checks If this is a concern call a qualified special needs planning attorney using one of the links above or a Trust Officer to determine the appropriate course of action l l l l l EWC Magazine Superior Claims Handling Sources and Additional Reading www caselaw findlaw com us 1st circuit 1738376 html www cptinstitute org blog how the 2018 poms update affects trust beneficiaries www cptinstitute org blog overpayments from the social security administration www medicaid gov federal policy guidance downloads smd17001 pdf www naela org www secure ssa gov ICON main jsp www secure ssa gov poms nsf lnx 0501120201 www specialneedsalliance org www specialneedsanswers com www ssa gov myaccount www ssa gov OP_Home cfr20 416 416 1201 htm www secure ssa gov poms nsf lnx 0501715020 Overpayments from the Social Security Administration 2018 Retrieved from https www cptinstitute org blog overpayments from the social securityadministration 2 SSA POMS SI 01715 020 List of State Medicaid Programs for the Aged Blind and Disabled 08 02 2016 2018 Retrieved from https secure ssa gov poms nsf lnx 0501715020 3 Lindahl M S C Toor M A S 2018 DEEMING HOW AN INDIVIDUAL S INCOME ASSETS AFFECT ANOTHER S ELIGIBILITY FOR SUPPLEMENTAL SECURITY INCOME SSI Retrieved from https www cptinstitute org blog deeming how an individualsincome assets affect anothers eligibility for supplemental security income ssi 1 www ewcconference com ewc magazine ACMclaims com A leading national third party claims administrator we ve specialized in Property Casualty and Workers Compensation claims services since 1988 Learn more about our customized client resources powered by seasoned staff and cuttingedge technology solutions 350 person team of experienced claim professionals 37 000 personal and commercial clients coast to coast ROD PERRY Vice President Client Relations Property 225 400 2460 JEFF DALESSANDRO Vice President Business Development Workers Compensation 619 744 5011 JDalessandro ACMClaims com 21

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WORKERS COMPENSATION Given the value of Medicaid IHSS and SSI it can often be in the defense s best interest to preserve eligibility for these government benefits to legally help offset costs to reach an agreed upon settlement amount help protect eligibility for Section 8 housing since the First Circuit Court case decision in DeCambre v Brookline Housing Authority 2016 Fourth after President Obama signed the 21st Century Cures Act CCA in 2017 an individual may establish his or her own trust Medicaid 2017 Finally SNTs can be combined with structured settlements Medicare Set Asides and other beneficial products and programs It is extremely important to know that the Social Security Administration SSA considers an MSA a countable asset to the applicant when seeking eligibility for traditional means tested Medicaid and SSI However if the MSA allocation is titled through an SNT the assets are not counted allowing the applicant to maintain eligibility for the previously mentioned government benefits Center for Medicare and Medicaid Services 2005 NEW CHALLENGES Mitigating issues regarding government benefits is no longer the sole responsibility of the applicant attorney In the past assets from a settlement could be held in an attorney trust account while the applicant attorney established an SNT In March of 2018 the SSA released an updated Program Operations Manual System POMS which is the primary source of information used by Social Security employees to process claims for Social Security benefits Social Security Administration 2018 Part of the 2018 POMS update states that Attorney trust or escrow accounts may be a countable resource for a Medicaid or SSI recipient after all liens and fees have been paid SI 01120 201 B 4 2018 In addition even if an applicant is not legally represented providing them with a check could impact his or her eligibility because a check is considered an available resource according to the SSA 20 CFR 416 1201 b 1975 This is important for the defense to understand because they need to know how to properly disburse funds when seeking to preserve an applicant s eligibility A common reoccurring issue is when an applicant is receiving needs based benefits such as Medicaid or SSI with a stipulation that has not been irrevocably assigned to an SNT For applicants receiving SSI the stipulated payments are counted as 20 WORKERS COMPENSATION unearned income and cause a dollar for dollar reduction on their SSI income This often results in zero benefit to the applicant or worse an overpayment An overpayment is when the SSA discovers that a recipient of SSI received some form of in kind support and maintenance or income from a third party and issues a bill to repay the SSA for a portion or for all the disbursed SSI income from that timeframe 1 If the stipulated payments were disbursed for months this could cause an overpayment of thousands of dollars or cause a reduction in his or her SSI for years into the future Additionally in 35 of the 50 states commonly referred to as 1634 states eligibility for Medicaid is tied to SSI eligibility meaning losing SSI could also cost the applicant their Medicaid health care coverage 2 Even for applicants receiving Medicaid only this could cause the individual to pay more toward his or her health care coverage also referred to as an increased Share of Cost Further complicating this issue is spousal and parental deeming Deeming is when an applicant s income counts towards a disabled spouse s or minor child s income which often causes a reduction or elimination of their benefits 3 Whether intentional or not these case dynamics and the issues that arise represent the need to consult with experts on needs based government benefits Given the value of Medicaid IHSS and SSI it can often be in the defense s best interest to preserve eligibility for these government benefits to legally help offset costs to reach an agreed upon settlement amount CONCLUSION Special needs trusts can provide an immense benefit to the applicant and defense The benefit to the applicant is that it provides him or her with access to health coverage through Medicaid caregiving services IHSS and SSI income they would not have been able to receive without an SNT The benefit to the defense is that it can decrease the cost of care for the applicant Government benefits can no longer be the sole concern of the applicant attorney As an advocate for those living with disabilities we encourage you to find a qualified professional that you can lean on when you need help mitigating government benefits because it s in the best interest of everyone involved J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET A special needs trust can preserve eligibility for Medicaid SSI IHSS and in most cases Section 8 housing Preserving eligibility for these benefits can significantly reduce the cost of the care for a client that is severely injured l Before disbursing funds to a client the client should be asked what government benefits he or she is receiving Additionally this same information should be collected from other members of the household due to parental and spousal deeming l THE SOLUTION QUALIFYING To qualify to use an SNT an applicant must satisfy the Litmus Test The Litmus Test states that an applicant must be disabled and unable to work The easiest way to determine if an applicant satisfies this requirement is by identifying the types of income the applicant is receiving If the applicant is receiving income from any of the following programs he or she will qualify categorically to use an SNT Supplemental Security Income SSI Social Security Disability Insurance SSDI Social Security Retirement Traditional Medicaid The fastest way to determine if an applicant qualifies for an SNT is by having the applicant obtain a Benefit Verification Letter by visiting www ssa gov myaccount or a local SSA office Once the Benefit Verification Letter is obtained most trust providers can educate you on the available options to preserve the applicant s eligibility However a Benefit Verification Letter will not inform you if an applicant is eligible for government benefits it only informs the applicant of the programs he or she is currently receiving If you are seeking to determine if an applicant is eligible for the programs discussed above please contact a qualified special needs planning attorney from the Academy of Special Needs Planners National Academy of Elder Law Attorneys or Special Needs Alliance or a qualified Trust Officer from a trust provider that offers this service In most cases when an attorney or claims adjuster knows an applicant s forms of income and medical insurance a qualified Trust Officer can provide you with options for maximizing a settlement after only 10 15 minutes on the phone Providing a recipient of needs based government benefits with access to funds of any kind can reduce or eliminate his or her eligibility for the government benefits they rely on This mistake is most commonly made by distributing stipulations MSA allocations and checks If this is a concern call a qualified special needs planning attorney using one of the links above or a Trust Officer to determine the appropriate course of action l l l l l EWC Magazine Superior Claims Handling Sources and Additional Reading www caselaw findlaw com us 1st circuit 1738376 html www cptinstitute org blog how the 2018 poms update affects trust beneficiaries www cptinstitute org blog overpayments from the social security administration www medicaid gov federal policy guidance downloads smd17001 pdf www naela org www secure ssa gov ICON main jsp www secure ssa gov poms nsf lnx 0501120201 www specialneedsalliance org www specialneedsanswers com www ssa gov myaccount www ssa gov OP_Home cfr20 416 416 1201 htm www secure ssa gov poms nsf lnx 0501715020 Overpayments from the Social Security Administration 2018 Retrieved from https www cptinstitute org blog overpayments from the social securityadministration 2 SSA POMS SI 01715 020 List of State Medicaid Programs for the Aged Blind and Disabled 08 02 2016 2018 Retrieved from https secure ssa gov poms nsf lnx 0501715020 3 Lindahl M S C Toor M A S 2018 DEEMING HOW AN INDIVIDUAL S INCOME ASSETS AFFECT ANOTHER S ELIGIBILITY FOR SUPPLEMENTAL SECURITY INCOME SSI Retrieved from https www cptinstitute org blog deeming how an individualsincome assets affect anothers eligibility for supplemental security income ssi 1 www ewcconference com ewc magazine ACMclaims com A leading national third party claims administrator we ve specialized in Property Casualty and Workers Compensation claims services since 1988 Learn more about our customized client resources powered by seasoned staff and cuttingedge technology solutions 350 person team of experienced claim professionals 37 000 personal and commercial clients coast to coast ROD PERRY Vice President Client Relations Property 225 400 2460 JEFF DALESSANDRO Vice President Business Development Workers Compensation 619 744 5011 JDalessandro ACMClaims com 21

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WORKERS COMPENSATION Structured Settlements Still a Good Option By Michael Zea Master Certified Structured Settlement Consultant at Ringler I nterest rates continue to be at historically low levels which raises concerns for injured workers who are concerned about being tied down to a pre established income stream such as a structured settlement The good news is it really doesn t matter Structured settlements are not investments like other products and therefore are not subject to the whims of Wall Street With claimants who choose a lump sum payout there is a high frequency of total dissipation of settlement funds post settlement A structured settlement eliminates that risk This stability continues to prove that a structured settlement is still a great option as part of a comprehensive settlement plan WHAT IS A STRUCTURED SETTLEMENT First made popular in the 1970s structured settlements focus on future needs of the claimant and their family A structured settlement plan allows for a set amount of money to be distributed at pre determined intervals monthly quarterly annually or whatever is agreed upon in the settlement process A typical structured settlement includes upfront cash for immediate needs coupled with a variety of periodic payments for future needs BENEFITS OF A STRUCTURED SETTLEMENT Guarantees The payments to the injured worker from interestearning annuities are backed by insurance companies which are highly regulated Tax Free The injured worker receives a 100 percent lifetime exclusion from income dividend and capital gains taxes No Fees Structured settlements do not include management fees No Risk Because of their structures and guarantees the injured worker receives the money as scheduled regardless of current interest rates Also they are not managed as other investment products are so are not in danger of ending due to poor investment results Eligibility Benefits from federal and private health care plans are protected Customization Working with an experienced reputable company with appropriate knowledge and financial tools means the settlement can be designed to fit the specific needs and desires of the injured worker involved 22 Higher Returns One of the main advantages of structured settlements stems from their status as tax free That translates to returns that are higher than those seen in low to moderaterisk investments To match or get a better return than what an underlying annuity provides would require taking on higher risk and more uncertainty FINANCIAL SAVINGS VIA STRUCTURED SETTLEMENTS The Power of Interest If a personal injury case were to settle for a significant amount of money it s easy to understand the excitement of taking a lump sum payment immediately However if a portion of that money was invested with a guaranteed return via legitimate investments that sum of money could increase in value over a short period Cost Savings Through Rated Ages and Annuities Consider this the parties agree to a settlement amount of 500 000 via a structured settlement By working with a structured settlement consultant rated ages are obtained and an annuity is purchased While the claimant still receives the agreed upon settlement amount the annuity provides the carrier with significant savings The final results are as follows Agreed upon settlement amount 500 000 Savings to carrier via rated age 98 000 Savings to carrier via annuity payments rather than lump sum 126 000 TOTAL SAVINGS 224 000 ADVANTAGES FOR THE DEFENSE Extend Value Structured settlements are a creative tool for settlement which can work to bridge the gap between demand and offer by stretching the claims dollar Reduce Expense Settling a case with a structure can reduce settlement and handling expenses Settlement Focus Structures drive needs based negotiations which allow you to move away from the demand offer volley and create a settlement plan that meets the claimant s needs A Network of Support When appropriate your structured settlement consultant can also work with their network of other providers to help settle cases ranging from lien resolution to caregiver and claimant insurance Helps Claims Professionals Settle Cases The introduction of a comprehensive structured settlement program gives claims professionals a new way to negotiate a resolution on their claims Settling more cases quicker frees up time for the claims professional to do more of what they love STRUCTURED SETTLEMENTS STILL A WINNING SOLUTION FOR ALL PARTIES The Insurance Carriers Win Insurance carriers can better fulfill their obligations to shareholders governmental financial reserves and solvency requirements and commitments to the insured Using a structured settlement allows insurance carriers to meet their competing obligations and free up scarce resources to settle other troublesome claims The Claimant Wins People receiving a lump sum settlement can sometimes make bad financial decisions By using a structured settlement there is a diminished ability to make large purchases and it forces the claimant to focus on their future needs With a guaranteed rate of return the injured party is protected from being a victim again The Claimant Attorney Wins Attorneys are duty bound to be advocates for their clients which includes making sure their clients are fully compensated under the law Structured settlements achieve success by making sure the claimant receives a fair settlement with financial security J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET No one can know what economic and financial market futures will be However guaranteed tax free no fee income for a person who can no longer work care for themselves or who needs to support a family is the perfect solution l The structured settlement annuity approach has been proven as the bedrock foundation of most settlement plans For the Defense it is a proven vehicle for cost savings and an excellent negotiation tool to move cases to settlement For the injured party a structured settlement provides a safety net a floor income and planning certainty in an uncertain world l Enhance the Value of Smaller Settlements A structured settlement plan can enhance value in smaller settlements which are sometimes common in workers compensation cases A settlement plan can be designed to provide a significant upfront cash payment plus a variety of annual installments In workers compensation cases where the parties fund a Medicare Set Aside to consider Medicare s future interests and protect the parties this can be a valuable resource as indicated above EWC Magazine www ewcconference com ewc magazine 23

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WORKERS COMPENSATION Structured Settlements Still a Good Option By Michael Zea Master Certified Structured Settlement Consultant at Ringler I nterest rates continue to be at historically low levels which raises concerns for injured workers who are concerned about being tied down to a pre established income stream such as a structured settlement The good news is it really doesn t matter Structured settlements are not investments like other products and therefore are not subject to the whims of Wall Street With claimants who choose a lump sum payout there is a high frequency of total dissipation of settlement funds post settlement A structured settlement eliminates that risk This stability continues to prove that a structured settlement is still a great option as part of a comprehensive settlement plan WHAT IS A STRUCTURED SETTLEMENT First made popular in the 1970s structured settlements focus on future needs of the claimant and their family A structured settlement plan allows for a set amount of money to be distributed at pre determined intervals monthly quarterly annually or whatever is agreed upon in the settlement process A typical structured settlement includes upfront cash for immediate needs coupled with a variety of periodic payments for future needs BENEFITS OF A STRUCTURED SETTLEMENT Guarantees The payments to the injured worker from interestearning annuities are backed by insurance companies which are highly regulated Tax Free The injured worker receives a 100 percent lifetime exclusion from income dividend and capital gains taxes No Fees Structured settlements do not include management fees No Risk Because of their structures and guarantees the injured worker receives the money as scheduled regardless of current interest rates Also they are not managed as other investment products are so are not in danger of ending due to poor investment results Eligibility Benefits from federal and private health care plans are protected Customization Working with an experienced reputable company with appropriate knowledge and financial tools means the settlement can be designed to fit the specific needs and desires of the injured worker involved 22 Higher Returns One of the main advantages of structured settlements stems from their status as tax free That translates to returns that are higher than those seen in low to moderaterisk investments To match or get a better return than what an underlying annuity provides would require taking on higher risk and more uncertainty FINANCIAL SAVINGS VIA STRUCTURED SETTLEMENTS The Power of Interest If a personal injury case were to settle for a significant amount of money it s easy to understand the excitement of taking a lump sum payment immediately However if a portion of that money was invested with a guaranteed return via legitimate investments that sum of money could increase in value over a short period Cost Savings Through Rated Ages and Annuities Consider this the parties agree to a settlement amount of 500 000 via a structured settlement By working with a structured settlement consultant rated ages are obtained and an annuity is purchased While the claimant still receives the agreed upon settlement amount the annuity provides the carrier with significant savings The final results are as follows Agreed upon settlement amount 500 000 Savings to carrier via rated age 98 000 Savings to carrier via annuity payments rather than lump sum 126 000 TOTAL SAVINGS 224 000 ADVANTAGES FOR THE DEFENSE Extend Value Structured settlements are a creative tool for settlement which can work to bridge the gap between demand and offer by stretching the claims dollar Reduce Expense Settling a case with a structure can reduce settlement and handling expenses Settlement Focus Structures drive needs based negotiations which allow you to move away from the demand offer volley and create a settlement plan that meets the claimant s needs A Network of Support When appropriate your structured settlement consultant can also work with their network of other providers to help settle cases ranging from lien resolution to caregiver and claimant insurance Helps Claims Professionals Settle Cases The introduction of a comprehensive structured settlement program gives claims professionals a new way to negotiate a resolution on their claims Settling more cases quicker frees up time for the claims professional to do more of what they love STRUCTURED SETTLEMENTS STILL A WINNING SOLUTION FOR ALL PARTIES The Insurance Carriers Win Insurance carriers can better fulfill their obligations to shareholders governmental financial reserves and solvency requirements and commitments to the insured Using a structured settlement allows insurance carriers to meet their competing obligations and free up scarce resources to settle other troublesome claims The Claimant Wins People receiving a lump sum settlement can sometimes make bad financial decisions By using a structured settlement there is a diminished ability to make large purchases and it forces the claimant to focus on their future needs With a guaranteed rate of return the injured party is protected from being a victim again The Claimant Attorney Wins Attorneys are duty bound to be advocates for their clients which includes making sure their clients are fully compensated under the law Structured settlements achieve success by making sure the claimant receives a fair settlement with financial security J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET No one can know what economic and financial market futures will be However guaranteed tax free no fee income for a person who can no longer work care for themselves or who needs to support a family is the perfect solution l The structured settlement annuity approach has been proven as the bedrock foundation of most settlement plans For the Defense it is a proven vehicle for cost savings and an excellent negotiation tool to move cases to settlement For the injured party a structured settlement provides a safety net a floor income and planning certainty in an uncertain world l Enhance the Value of Smaller Settlements A structured settlement plan can enhance value in smaller settlements which are sometimes common in workers compensation cases A settlement plan can be designed to provide a significant upfront cash payment plus a variety of annual installments In workers compensation cases where the parties fund a Medicare Set Aside to consider Medicare s future interests and protect the parties this can be a valuable resource as indicated above EWC Magazine www ewcconference com ewc magazine 23

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WORKERS COMPENSATION WORKERS COMPENSATION OTHER SKILLS There is a significant difference when comparing the Pro s other skills with the Con s For example the Pro will produce videotape of the subject much more frequently than the Con e g eight out of 10 times for the Pro compared to two out of 10 times for the Con depending on their level The videotape quality of the Pro will be far superior with at least some close up footage of the subject for identification purposes The footage will be clear with little if any blurring or shake The subject s activities or lack thereof will be well documented The Con may try to shoot video from a distant location and through dirty windows The Pro is also an expert at developing information about the subject before during and after the surveillance The Pro goes out on the assignment with as much information about the subject as the client can provide In addition he or she will obtain additional information from other sources such as DMV records social media and the internet neighbors etc The Con will often go out on an assignment with nothing more than the name and last known address of the subject The Con may surveil a vacant house the entire day without conducting any investigation Surveillance Pros Cons By Richard Harer CFE CPI CFS WCCA Vice President at Specialized Investigations E valuating private investigators in the art of surveillance or sub rosa as it s also called can best be described as comparing the difference between a Picasso painting with that of a local artist who paints primarily as a hobby Some would argue that the difference between the two may be in the eye of the beholder However in surveillance the results can be measured by the results of the investigation and performance of the investigator There are Pros and there are Cons Identifying a Pro and a Con should be very evident and the results speak for themselves Here are a few critical insights gained from my years of experience to help workers compensation professionals separate the Pros from the Cons EXPERIENCE Nothing can take the place of experience Some people may believe that anyone can do surveillance Although 24 that may be partially true not everyone can conduct surveillance successfully The difference between an experienced surveillance investigator one who specializes in surveillance and an experienced investigator is monumental A Pro takes his or her surveillance job seriously A Pro will be there when they say they were and be able to back it up If the job requires a 4 a m start time the Pro will be there at or before 4 a m On the other hand the Con will show up late and occasionally miss golden opportunities i e a claimant leaving for work when they are not supposed to be working The Cons will often pull out early to beat the traffic or boredom and miss prime opportunities The Pro is an expert at tailing a subject without losing them in traffic or being detected However even the best Pro can lose the subject or be detected on occasion There is no way to avoid this reality If an investigator tries to tell you otherwise or oversells their success ratio you are dealing with a Con EWC Magazine EQUIPMENT Another critical distinction between the Pro and the Con is the type of equipment used The Pro knows his or her equipment better than they know their significant other After all the Pro spends more time with their equipment than anything else A Pro can tell you the video camera manufacturer the zoom range and many other less commonly known features Ask a Con about their equipment and they may offer a few details but may not even know the brand name THE REPORT The verbal and written reports will obviously distinguish the Pro from the Con The Pro s report will be detailed yet concise The report will include a physical description of the surroundings the vehicles and most importantly the subject The report will document the subject s activities or lack thereof It will include a time and date sequence of events a summary of the activity video summary and recommendations Above all the Pro knows the laws concerning invasion of privacy trespassing and stalking and other laws governing surveillance The Pro also has experience testifying in depositions and in court and will bring the necessary equipment to view the videotape evidence The testimony of the Pro including their experience personal appearance and ability to articulate the facts will separate the Pro from the Con when it counts the most CHOOSING A PRO There are several things you can do to improve your chances of selecting a Pro The following are some steps to take before hiring a surveillance investigator Ask the potential investigator for personal references of other clients who have used them for surveillance on more than one occasion and call at least one of them Ask for the name and bio of the investigator who will be assigned to the case Remember www ewcconference com ewc magazine the outcome will depend solely upon the investigator not the past reputation of the company hired Ask for an investigator that would best fit an area or situation For example if the subject lives in an ethnic community it may be best to use an investigator who will blend in This is especially important in some communities where language may also be a barrier If you ve had a good experience with a specific investigator at a firm don t hesitate to ask for that investigator again They may not always be available but as the old adage goes if you don t ask you may not get If you ve had an unfavorable experience with a specific investigator ask to use another investigator rather than going on a shopping expedition for another firm whose reputation is unknown Try to avoid judging an investigator or firm based on one case that didn t turn out the way you wanted as you can t always make a silk purse out of a sow s ear if the subject doesn t leave the house or their activities didn t meet your expectations Set specific criteria to be followed along with specific deadlines and reporting requirements Too often clients will say they need the surveillance done ASAP without providing a due date or a particular reason for the rush It is often beneficial not to rush surveillance cases as it may not allow the investigator enough time to develop DMV and other useful information before beginning If your company or state has strict rules or laws about doing a pretext be sure to advise the investigator about it in writing along with other guidelines Give the investigator every bit of information you have on the subject Too often the client will fail to provide vital information on the subject such as a recent change of address or phone number limitations and restrictions physical description photos or work schedules even though the information may be available in a file or through another contact This alone will often ensure the success of many surveillance assignments If you are unhappy with your contracted investigative firm consult with your client and recommend using a preferred vendor for better results Results should always be the top priority in maximizing the costs and benefits of surveillance We have all kissed a few frogs in the vendor hiring process and will occasionally do so again However a little more forethought knowledge and experience will empower each of us to make better choices when the need arises J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET If a picture is worth a thousand words then a video is worth a thousand pictures l Results should always be the top priority in maximizing the costs and benefits of surveillance l Give the investigator every bit of information you have available on the subject l 25

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WORKERS COMPENSATION WORKERS COMPENSATION OTHER SKILLS There is a significant difference when comparing the Pro s other skills with the Con s For example the Pro will produce videotape of the subject much more frequently than the Con e g eight out of 10 times for the Pro compared to two out of 10 times for the Con depending on their level The videotape quality of the Pro will be far superior with at least some close up footage of the subject for identification purposes The footage will be clear with little if any blurring or shake The subject s activities or lack thereof will be well documented The Con may try to shoot video from a distant location and through dirty windows The Pro is also an expert at developing information about the subject before during and after the surveillance The Pro goes out on the assignment with as much information about the subject as the client can provide In addition he or she will obtain additional information from other sources such as DMV records social media and the internet neighbors etc The Con will often go out on an assignment with nothing more than the name and last known address of the subject The Con may surveil a vacant house the entire day without conducting any investigation Surveillance Pros Cons By Richard Harer CFE CPI CFS WCCA Vice President at Specialized Investigations E valuating private investigators in the art of surveillance or sub rosa as it s also called can best be described as comparing the difference between a Picasso painting with that of a local artist who paints primarily as a hobby Some would argue that the difference between the two may be in the eye of the beholder However in surveillance the results can be measured by the results of the investigation and performance of the investigator There are Pros and there are Cons Identifying a Pro and a Con should be very evident and the results speak for themselves Here are a few critical insights gained from my years of experience to help workers compensation professionals separate the Pros from the Cons EXPERIENCE Nothing can take the place of experience Some people may believe that anyone can do surveillance Although 24 that may be partially true not everyone can conduct surveillance successfully The difference between an experienced surveillance investigator one who specializes in surveillance and an experienced investigator is monumental A Pro takes his or her surveillance job seriously A Pro will be there when they say they were and be able to back it up If the job requires a 4 a m start time the Pro will be there at or before 4 a m On the other hand the Con will show up late and occasionally miss golden opportunities i e a claimant leaving for work when they are not supposed to be working The Cons will often pull out early to beat the traffic or boredom and miss prime opportunities The Pro is an expert at tailing a subject without losing them in traffic or being detected However even the best Pro can lose the subject or be detected on occasion There is no way to avoid this reality If an investigator tries to tell you otherwise or oversells their success ratio you are dealing with a Con EWC Magazine EQUIPMENT Another critical distinction between the Pro and the Con is the type of equipment used The Pro knows his or her equipment better than they know their significant other After all the Pro spends more time with their equipment than anything else A Pro can tell you the video camera manufacturer the zoom range and many other less commonly known features Ask a Con about their equipment and they may offer a few details but may not even know the brand name THE REPORT The verbal and written reports will obviously distinguish the Pro from the Con The Pro s report will be detailed yet concise The report will include a physical description of the surroundings the vehicles and most importantly the subject The report will document the subject s activities or lack thereof It will include a time and date sequence of events a summary of the activity video summary and recommendations Above all the Pro knows the laws concerning invasion of privacy trespassing and stalking and other laws governing surveillance The Pro also has experience testifying in depositions and in court and will bring the necessary equipment to view the videotape evidence The testimony of the Pro including their experience personal appearance and ability to articulate the facts will separate the Pro from the Con when it counts the most CHOOSING A PRO There are several things you can do to improve your chances of selecting a Pro The following are some steps to take before hiring a surveillance investigator Ask the potential investigator for personal references of other clients who have used them for surveillance on more than one occasion and call at least one of them Ask for the name and bio of the investigator who will be assigned to the case Remember www ewcconference com ewc magazine the outcome will depend solely upon the investigator not the past reputation of the company hired Ask for an investigator that would best fit an area or situation For example if the subject lives in an ethnic community it may be best to use an investigator who will blend in This is especially important in some communities where language may also be a barrier If you ve had a good experience with a specific investigator at a firm don t hesitate to ask for that investigator again They may not always be available but as the old adage goes if you don t ask you may not get If you ve had an unfavorable experience with a specific investigator ask to use another investigator rather than going on a shopping expedition for another firm whose reputation is unknown Try to avoid judging an investigator or firm based on one case that didn t turn out the way you wanted as you can t always make a silk purse out of a sow s ear if the subject doesn t leave the house or their activities didn t meet your expectations Set specific criteria to be followed along with specific deadlines and reporting requirements Too often clients will say they need the surveillance done ASAP without providing a due date or a particular reason for the rush It is often beneficial not to rush surveillance cases as it may not allow the investigator enough time to develop DMV and other useful information before beginning If your company or state has strict rules or laws about doing a pretext be sure to advise the investigator about it in writing along with other guidelines Give the investigator every bit of information you have on the subject Too often the client will fail to provide vital information on the subject such as a recent change of address or phone number limitations and restrictions physical description photos or work schedules even though the information may be available in a file or through another contact This alone will often ensure the success of many surveillance assignments If you are unhappy with your contracted investigative firm consult with your client and recommend using a preferred vendor for better results Results should always be the top priority in maximizing the costs and benefits of surveillance We have all kissed a few frogs in the vendor hiring process and will occasionally do so again However a little more forethought knowledge and experience will empower each of us to make better choices when the need arises J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET If a picture is worth a thousand words then a video is worth a thousand pictures l Results should always be the top priority in maximizing the costs and benefits of surveillance l Give the investigator every bit of information you have available on the subject l 25

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IN THE SPOTLIGHT In the Spotlight Industry leaders answer our most searching questions AGNES HOEBERLING President of Intercare Holdings Inc What is one characteristic that you believe every leader should possess Courage it s a leader s True North The courage of conviction and the courage to do the right thing especially in times of adversity Which is most important to your organization mission core values or vision Core Values An organization s mission and vision can change periodically depending on the internal and external forces Successful organizations must be able to adapt to changing landscape in our industry and to do so you have to be openminded flexible and willing to consider options Intercare s Core Values guide our leaders and colleagues to do the right thing Tell us an interesting or fun anecdote about your business The senior leaders and executive team get together at a planning meeting to prepare for the upcoming year This is usually three to four days of hard work discussing budget initiatives and improvement strategy When you have a group of passionate individuals who really care about the work they do the discussion can sometimes get very tough and intense Throughout the years I started to incorporate games to balance these meetings One year they had to demonstrate the characteristics of their favorite animal without using any words And everyone had to guess the animal It was like Pictionary except you act out the animal instead of drawing it and no one knows the animal but you It was fun and I think there were plenty of blackmail pictures that year Where is your favorite place in the world and why Ucluelet British Columbia It is located on a peninsula surrounded by water along the Wild Pacific Trail in Victoria Canada We love to hike and the trails offer magnificent views of the Pacific Ocean It is remote and offers a respite from the constant interruption of technology It offers tranquility and peace that is hard to find And the locals are some of the nicest and most creative people I have ever met Agnes can be reached at ahoeberling intercareins com 818 459 8212 www intercareins com 26 IN THE SPOTLIGHT FELICIA AMENTA KRISTEN CHAVEZ BRAD DUNLAP Senior Manager Workers Compensation Program at San Diego County and Imperial County Schools JPA President CEO of WorkCompCentral Owner President of TheBestIRS Name a person who has had a tremendous impact on you as a leader or mentored you Why and how did this person impact you Three people stand out as leaders who have made an impact on my life David DePaolo founder former President CEO of WorkCompCentral Cindy Cooper WorkCompCentral and Artemis Emslie AGM Holdings LLC David for obvious reasons Cindy Cooper is a behind the scenes player who I know I can bounce ideas off of talk through difficult situations with and lean on when necessary for personal and professional situations She has been with the company for 10 years and has been a huge asset to the success of both me and WorkCompCentral Artemis has been a sounding board recently for me and has provided sound advice on a personal and professional level I have seen the company culture and professional reputation in the industry that she has created and want to use it as a guideline for my own development What is one characteristic that you believe every leader should possess Humility A humble leader understands that there are things they do not know They not only listen to other leaders but they listen to their employees and their customers as well Leaders are not measured by their own efforts or personal achievements but they are measured by the results produced by their organizations A true leader does not want credit for their efforts but they want to spread the credit amongst the members of their teams When pride comes then comes disgrace but with humility comes wisdom Proverbs 11 2 Name a person who has had a tremendous impact on you as a leader or mentored you Why and how did this person impact you I have had several mentors over my long career but Patrick Maroney who was the claims manager at Golden Eagle Insurance Company stands out above the rest Pat taught me to get input and listen to staff and stakeholders before making a final decision and to always take responsibility for the decisions that you make as a manager and to never blame your team He was honest and ethical to deal with in personal and business affairs and I have adopted much of my management style from the way he treated me when I was a claims examiner and supervisor working for him What are the most important decisions you make as a leader of your company I work for a large non profit JPA pool of school districts in San Diego and Imperial County that are always struggling to manage the money that they need for resources to educate children and young adults So to stay focused I keep a reminder on my desk from the teachers and school district staff that I serve that my job is to provide the highest quality risk and workers compensation services in the most cost effective manner to maximize the dollars needed for education and this mission affects all of my daily decisions What resources would you recommend to someone looking to gain insight into becoming a better leader San Diego County Office of Education has all employees take the Strengthsfinder 2 0 testing from Gallup to determine our strengths to assist us in working together in teams Some of my strengths are positivity achiever arranger and connectedness and these strengths assist me with working with clients vendor partners and our claims team in a collaborative approach I also recommend reading the books Emotional Intelligence 2 0 by Travis Bradberry and Jean Greaves and Strengths Based Leadership by Tom Rath and Barry Conchie Where does your ambition come from what drives you What is your proudest moment at your company My proudest moment is becoming CEO and President of WorkCompCentral because I have been given the opportunity to carry on David DePaolo s vision and move forward with the vision I have for the company I hope to continue to educate everyone in the industry with news education and resources so that they can be efficient and effective at their jobs When people have access to resources they feel empowered to make decisions and provide an outcome that benefits all parties involved I will work with my awesome team to maintain and improve our current product offerings plus be creating and looking for new opportunities If you could go back five years what advice would you give yourself Network network network Having stepped into the business development side in the last two years I have met some pretty amazing people built amazing relationships learned so much and gained valuable resources Looking back I understand my purpose for being in house but think about all that I was missing My parents taught me to work hard at whatever job I chose to perform and to have pride in my work and my strong work ethic comes from my family My ambition comes from wanting to serve others and to be respected professionally in my field and to be fair responsible and reliable to my school district clients vendor partners and claims team and compassionate to the injured school employees that we serve What s on your bucket list Traveling A few places on my list are Holland Italy Japan Australia and Argentina In my twenties I was so focused on the perfect life that I missed out on a lot of opportunities to see the world I think that by visiting places you learn and grow as a human being You realize there is so much more than just the tiny bubble you live in Felicia can be reached at famenta sdcoe net 858 571 7221 www sdcoe net Kristen can be reached at kristen workcompcentral com 805 484 0333 x1126 www workcompcentral com KristenNchavez EWC Magazine www ewcconference com ewc magazine What are 3 words to describe TheBestIRS Innovative TheBestIRS embraces change and we are constantly searching for more effective and efficient ways to improve our service to both our customers and our candidates Our company s three top operational expenses are people technology and marketing At TheBestIRS these income statement line items are viewed as investments rather than expenses Most of the time all three of these investments work in concert to achieve our goals Passionate At TheBestIRS we are never satisfied with our results Our company s passion comes from each individual within the company We only hire people that are driven to perform at their highest level every day because that is who they are as a person As a collective group this creates a synergistic effect where the sum becomes so much more than just one Dedicated TheBestIRS is committed to providing every customer with the highest quality service regardless of the size of the organization We view our customers as business partners and we offer our very best pricing up front What s the best advice you have received in business The best business relationships are collaborative partnerships where each party benefits equally from the relationship Every vendor supplies a solution to a customer s problem The solution has to be both effective and priced properly or the client will pursue other avenues to solve their problem Smart clients are constantly investigating new methods of achieving better results more cost effectively Therefore we need to always look to improve our services and the value they provide our customers What do you do for fun and relaxation What s at the top of your bucket list Playing golf is my favorite way to relax and escape from the everyday world There is no better way to catch up with friends Topping the bucket list To play a round at Augusta National Brad can be reached at brad thebestirs com 888 267 2483 www TheBestIRS com 27

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IN THE SPOTLIGHT In the Spotlight Industry leaders answer our most searching questions AGNES HOEBERLING President of Intercare Holdings Inc What is one characteristic that you believe every leader should possess Courage it s a leader s True North The courage of conviction and the courage to do the right thing especially in times of adversity Which is most important to your organization mission core values or vision Core Values An organization s mission and vision can change periodically depending on the internal and external forces Successful organizations must be able to adapt to changing landscape in our industry and to do so you have to be openminded flexible and willing to consider options Intercare s Core Values guide our leaders and colleagues to do the right thing Tell us an interesting or fun anecdote about your business The senior leaders and executive team get together at a planning meeting to prepare for the upcoming year This is usually three to four days of hard work discussing budget initiatives and improvement strategy When you have a group of passionate individuals who really care about the work they do the discussion can sometimes get very tough and intense Throughout the years I started to incorporate games to balance these meetings One year they had to demonstrate the characteristics of their favorite animal without using any words And everyone had to guess the animal It was like Pictionary except you act out the animal instead of drawing it and no one knows the animal but you It was fun and I think there were plenty of blackmail pictures that year Where is your favorite place in the world and why Ucluelet British Columbia It is located on a peninsula surrounded by water along the Wild Pacific Trail in Victoria Canada We love to hike and the trails offer magnificent views of the Pacific Ocean It is remote and offers a respite from the constant interruption of technology It offers tranquility and peace that is hard to find And the locals are some of the nicest and most creative people I have ever met Agnes can be reached at ahoeberling intercareins com 818 459 8212 www intercareins com 26 IN THE SPOTLIGHT FELICIA AMENTA KRISTEN CHAVEZ BRAD DUNLAP Senior Manager Workers Compensation Program at San Diego County and Imperial County Schools JPA President CEO of WorkCompCentral Owner President of TheBestIRS Name a person who has had a tremendous impact on you as a leader or mentored you Why and how did this person impact you Three people stand out as leaders who have made an impact on my life David DePaolo founder former President CEO of WorkCompCentral Cindy Cooper WorkCompCentral and Artemis Emslie AGM Holdings LLC David for obvious reasons Cindy Cooper is a behind the scenes player who I know I can bounce ideas off of talk through difficult situations with and lean on when necessary for personal and professional situations She has been with the company for 10 years and has been a huge asset to the success of both me and WorkCompCentral Artemis has been a sounding board recently for me and has provided sound advice on a personal and professional level I have seen the company culture and professional reputation in the industry that she has created and want to use it as a guideline for my own development What is one characteristic that you believe every leader should possess Humility A humble leader understands that there are things they do not know They not only listen to other leaders but they listen to their employees and their customers as well Leaders are not measured by their own efforts or personal achievements but they are measured by the results produced by their organizations A true leader does not want credit for their efforts but they want to spread the credit amongst the members of their teams When pride comes then comes disgrace but with humility comes wisdom Proverbs 11 2 Name a person who has had a tremendous impact on you as a leader or mentored you Why and how did this person impact you I have had several mentors over my long career but Patrick Maroney who was the claims manager at Golden Eagle Insurance Company stands out above the rest Pat taught me to get input and listen to staff and stakeholders before making a final decision and to always take responsibility for the decisions that you make as a manager and to never blame your team He was honest and ethical to deal with in personal and business affairs and I have adopted much of my management style from the way he treated me when I was a claims examiner and supervisor working for him What are the most important decisions you make as a leader of your company I work for a large non profit JPA pool of school districts in San Diego and Imperial County that are always struggling to manage the money that they need for resources to educate children and young adults So to stay focused I keep a reminder on my desk from the teachers and school district staff that I serve that my job is to provide the highest quality risk and workers compensation services in the most cost effective manner to maximize the dollars needed for education and this mission affects all of my daily decisions What resources would you recommend to someone looking to gain insight into becoming a better leader San Diego County Office of Education has all employees take the Strengthsfinder 2 0 testing from Gallup to determine our strengths to assist us in working together in teams Some of my strengths are positivity achiever arranger and connectedness and these strengths assist me with working with clients vendor partners and our claims team in a collaborative approach I also recommend reading the books Emotional Intelligence 2 0 by Travis Bradberry and Jean Greaves and Strengths Based Leadership by Tom Rath and Barry Conchie Where does your ambition come from what drives you What is your proudest moment at your company My proudest moment is becoming CEO and President of WorkCompCentral because I have been given the opportunity to carry on David DePaolo s vision and move forward with the vision I have for the company I hope to continue to educate everyone in the industry with news education and resources so that they can be efficient and effective at their jobs When people have access to resources they feel empowered to make decisions and provide an outcome that benefits all parties involved I will work with my awesome team to maintain and improve our current product offerings plus be creating and looking for new opportunities If you could go back five years what advice would you give yourself Network network network Having stepped into the business development side in the last two years I have met some pretty amazing people built amazing relationships learned so much and gained valuable resources Looking back I understand my purpose for being in house but think about all that I was missing My parents taught me to work hard at whatever job I chose to perform and to have pride in my work and my strong work ethic comes from my family My ambition comes from wanting to serve others and to be respected professionally in my field and to be fair responsible and reliable to my school district clients vendor partners and claims team and compassionate to the injured school employees that we serve What s on your bucket list Traveling A few places on my list are Holland Italy Japan Australia and Argentina In my twenties I was so focused on the perfect life that I missed out on a lot of opportunities to see the world I think that by visiting places you learn and grow as a human being You realize there is so much more than just the tiny bubble you live in Felicia can be reached at famenta sdcoe net 858 571 7221 www sdcoe net Kristen can be reached at kristen workcompcentral com 805 484 0333 x1126 www workcompcentral com KristenNchavez EWC Magazine www ewcconference com ewc magazine What are 3 words to describe TheBestIRS Innovative TheBestIRS embraces change and we are constantly searching for more effective and efficient ways to improve our service to both our customers and our candidates Our company s three top operational expenses are people technology and marketing At TheBestIRS these income statement line items are viewed as investments rather than expenses Most of the time all three of these investments work in concert to achieve our goals Passionate At TheBestIRS we are never satisfied with our results Our company s passion comes from each individual within the company We only hire people that are driven to perform at their highest level every day because that is who they are as a person As a collective group this creates a synergistic effect where the sum becomes so much more than just one Dedicated TheBestIRS is committed to providing every customer with the highest quality service regardless of the size of the organization We view our customers as business partners and we offer our very best pricing up front What s the best advice you have received in business The best business relationships are collaborative partnerships where each party benefits equally from the relationship Every vendor supplies a solution to a customer s problem The solution has to be both effective and priced properly or the client will pursue other avenues to solve their problem Smart clients are constantly investigating new methods of achieving better results more cost effectively Therefore we need to always look to improve our services and the value they provide our customers What do you do for fun and relaxation What s at the top of your bucket list Playing golf is my favorite way to relax and escape from the everyday world There is no better way to catch up with friends Topping the bucket list To play a round at Augusta National Brad can be reached at brad thebestirs com 888 267 2483 www TheBestIRS com 27

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The legal teams featured on these pages are diverse but they all share an unwavering dedication to their clients When the need for an attorney arises you can count on the law firms listed here to help you reach a favorable outcome 28 EWC Magazine www ewcconference com ewc magazine 29

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The legal teams featured on these pages are diverse but they all share an unwavering dedication to their clients When the need for an attorney arises you can count on the law firms listed here to help you reach a favorable outcome 28 EWC Magazine www ewcconference com ewc magazine 29

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PEER TO PEER PEER TO PEER PEER to PEER As an executive you ve probably encountered issues that others in the industry may face as well Peer to Peer is a forum for sharing a challenge you or a client faced the solution that was successful and the lessons learned or a new perspective or realization that led to a positive change In these pages two risk managers reveal their perspectives on the industry and the insights they ve gained California s Adversarial Workers Compensation System A New Perspective By Randy Rodelo Regional Manager Workers Compensation Absence Management at KPC Global Management LLC I n the worker s compensation industry in 1991 the DWC 1 was one year old the 90 day Delay Period came into existence skin and contents claims were alleged and multiple Applications were the norm when a case went litigated The industry caseloads exploded to an average of 250 per examiner and the majority of the examiners learned their craft sink or swim Nobody knew exactly what to do with this new system but one thing was sure it was a war and you were either on the applicant side or the defense side of the system For many it felt like the injured workers were trying to get one over on the examiners and it was personal Those who worked on the defense side as examiners hearing representatives or supervisors often fought claims that they felt were not legitimate The claims were adjusted in order to offer a regular or nominal settlement but when settlement was not viable the claims proceeded to trial at the WCAB Even when the evidence was strong the defense usually lost about 95 percent of the time Despite these odds the claims continued to be adjusted in the industry which in turn caused the system to run out of control and caused the California Legislature to regularly make substantial changes multiple times in an attempt to implement some sort of control The overall mentality was always to fight the claims that had no merit and if you couldn t win bluff your way until trial and then settle It was a mentality frequently seen in the industry and it served the defense industry well However this approach was based on the feeling that litigation was a major and unavoidable part of the industry 42 In 2006 I crossed the bridge and became a risk manager and everything I thought I knew about the industry including my mindset was turned upside down The job duties required managing an overall program costing millions of dollars Instead of adjusting claims the job required administering the company s workers compensation program to include managing the reserves and lowering the company s Experience Modification X Mod number to get better premium rates when the program renewed It was at that time that I took a hard look at our industry and remembered what an old supervisor used to tell me in my second year of adjusting claims His direction was to adjust the claims in the best financial interest of your client Don t make it personal that s not part of your job duties Of course this made sense but the current system was always adversarial from day one Companies in the industry wanted you to be aggressive in handling claims since it showed your supervisor and potential clients that the company s examiners were not just paper pushers but instead would defend the client s claims against the rampant fraud in the industry THE ISSUE It is interesting that once you cross into the employer side of the business you start to look at the industry differently In addition and before becoming a risk manager I was teaching Insurance Educational Association classes for CA 10 Intro into Work Comp and CA 11 Advanced Work Comp While prepping for those classes I had to re read the Herlick and Hampton books along with the California Labor Code and EWC Magazine The work comp system is a benefit driven system and is constructed to provide benefits not deny them Administrative Rules While it was a dry read it made me think why does our system have to be adversarial It was at that time I started to understand that the work comp system is a benefit driven system and is constructed to provide benefits not deny them The system is geared toward helping injured workers get medical treatment and recover from their claims Why fight a losing battle in a system that is geared to the injured employee By understanding that simple concept as a risk manager I started to work on changing the culture of my employer s workers compensation program It was not easy to roll out since management and the brokers felt this type of program did not fit into their best practices policy but I felt something needed to be done THE SOLUTION My concept was simple bring workers compensation into the light instead of keeping the program and the employees in the dark We reached out to the employees and answered their questions on how disability benefits and medical treatment work We invited the employees to come talk to us in person if they had questions or concerns about their www ewcconference com ewc magazine claim And we attended new hire orientations and explained what to do if they have an injury and what benefits are provided under the system There was nothing secret about explaining these benefits in fact they are the same benefits that are explained on both the DWC 1 and the employee benefit poster that is mandated by the State of California for all companies to post in their offices As we all know each claim is reviewed on its own merit and there are no set policies on what types of claims get delayed denied or accepted Since chances are low on prevailing at trial my concept was to adjust the claim backward In other words if a denied claim would proceed to trial would we have a chance to prevail on our denial If the chances of prevailing are low why expend the legal and medical expenses on a losing battle THE RESULTS By implementing this new culture change my overall litigation rate dropped from 40 percent to 15 5 percent per year on a program that incurs an average of 280 Indemnity and Medical Only claims per year I understand this is a new perspective to an industry that has been adversarial since the implementation of the claim form in 1990 but without any new ideas and views we will continue to run on a hamster wheel If you really want to see the impact of this adversarial system on your program compare the average litigation claim costs versus the average non litigated claim Trust me when I tell you the difference will be eye opening If you re looking to lower your overall program exposure this may provide you with an avenue to achieve that goal J 43

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PEER TO PEER PEER TO PEER PEER to PEER As an executive you ve probably encountered issues that others in the industry may face as well Peer to Peer is a forum for sharing a challenge you or a client faced the solution that was successful and the lessons learned or a new perspective or realization that led to a positive change In these pages two risk managers reveal their perspectives on the industry and the insights they ve gained California s Adversarial Workers Compensation System A New Perspective By Randy Rodelo Regional Manager Workers Compensation Absence Management at KPC Global Management LLC I n the worker s compensation industry in 1991 the DWC 1 was one year old the 90 day Delay Period came into existence skin and contents claims were alleged and multiple Applications were the norm when a case went litigated The industry caseloads exploded to an average of 250 per examiner and the majority of the examiners learned their craft sink or swim Nobody knew exactly what to do with this new system but one thing was sure it was a war and you were either on the applicant side or the defense side of the system For many it felt like the injured workers were trying to get one over on the examiners and it was personal Those who worked on the defense side as examiners hearing representatives or supervisors often fought claims that they felt were not legitimate The claims were adjusted in order to offer a regular or nominal settlement but when settlement was not viable the claims proceeded to trial at the WCAB Even when the evidence was strong the defense usually lost about 95 percent of the time Despite these odds the claims continued to be adjusted in the industry which in turn caused the system to run out of control and caused the California Legislature to regularly make substantial changes multiple times in an attempt to implement some sort of control The overall mentality was always to fight the claims that had no merit and if you couldn t win bluff your way until trial and then settle It was a mentality frequently seen in the industry and it served the defense industry well However this approach was based on the feeling that litigation was a major and unavoidable part of the industry 42 In 2006 I crossed the bridge and became a risk manager and everything I thought I knew about the industry including my mindset was turned upside down The job duties required managing an overall program costing millions of dollars Instead of adjusting claims the job required administering the company s workers compensation program to include managing the reserves and lowering the company s Experience Modification X Mod number to get better premium rates when the program renewed It was at that time that I took a hard look at our industry and remembered what an old supervisor used to tell me in my second year of adjusting claims His direction was to adjust the claims in the best financial interest of your client Don t make it personal that s not part of your job duties Of course this made sense but the current system was always adversarial from day one Companies in the industry wanted you to be aggressive in handling claims since it showed your supervisor and potential clients that the company s examiners were not just paper pushers but instead would defend the client s claims against the rampant fraud in the industry THE ISSUE It is interesting that once you cross into the employer side of the business you start to look at the industry differently In addition and before becoming a risk manager I was teaching Insurance Educational Association classes for CA 10 Intro into Work Comp and CA 11 Advanced Work Comp While prepping for those classes I had to re read the Herlick and Hampton books along with the California Labor Code and EWC Magazine The work comp system is a benefit driven system and is constructed to provide benefits not deny them Administrative Rules While it was a dry read it made me think why does our system have to be adversarial It was at that time I started to understand that the work comp system is a benefit driven system and is constructed to provide benefits not deny them The system is geared toward helping injured workers get medical treatment and recover from their claims Why fight a losing battle in a system that is geared to the injured employee By understanding that simple concept as a risk manager I started to work on changing the culture of my employer s workers compensation program It was not easy to roll out since management and the brokers felt this type of program did not fit into their best practices policy but I felt something needed to be done THE SOLUTION My concept was simple bring workers compensation into the light instead of keeping the program and the employees in the dark We reached out to the employees and answered their questions on how disability benefits and medical treatment work We invited the employees to come talk to us in person if they had questions or concerns about their www ewcconference com ewc magazine claim And we attended new hire orientations and explained what to do if they have an injury and what benefits are provided under the system There was nothing secret about explaining these benefits in fact they are the same benefits that are explained on both the DWC 1 and the employee benefit poster that is mandated by the State of California for all companies to post in their offices As we all know each claim is reviewed on its own merit and there are no set policies on what types of claims get delayed denied or accepted Since chances are low on prevailing at trial my concept was to adjust the claim backward In other words if a denied claim would proceed to trial would we have a chance to prevail on our denial If the chances of prevailing are low why expend the legal and medical expenses on a losing battle THE RESULTS By implementing this new culture change my overall litigation rate dropped from 40 percent to 15 5 percent per year on a program that incurs an average of 280 Indemnity and Medical Only claims per year I understand this is a new perspective to an industry that has been adversarial since the implementation of the claim form in 1990 but without any new ideas and views we will continue to run on a hamster wheel If you really want to see the impact of this adversarial system on your program compare the average litigation claim costs versus the average non litigated claim Trust me when I tell you the difference will be eye opening If you re looking to lower your overall program exposure this may provide you with an avenue to achieve that goal J 43

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PEER TO PEER PEER TO PEER A Risk Manager s Perspective on Workers Compensation By David B Dolnick Director Risk Management at TBC LLC 44 EWC Magazine In our often contentious field of workers compensation it s easy to forget that we all share at least in theory a common goal The key objective of our system is the prompt and efficient administration of benefits to and on behalf of injured workers Absent that goal there would be little to stand in the way of chaos and the inevitable problems that arise from it You need only look at the long delays and high expenses of civil litigation to see what might become of our industry without the structure and legal framework of workers compensation laws and regulations Risk managers have most often experience in both systems yet it s easy for them to become as jaded as anyone and to forget how immense an improvement the workers compensation system was over the earlier tort based systems Even where no bodily injury occurs in civil litigation such as construction defect claims the costs of defense can be astronomical and have been known to equal or even exceed the physical damages incurred The costs of defense for employment law claims or bodily injury tort claims routinely exceed 200 000 While difficult or complex workers compensation claims can on occasion reach those levels those are by far the exception not the rule It is far too easy to become mired in the details of some claim or another to become embroiled in the inevitable disputes over a lien or a petition for contribution or any myriad of similar transactions that occupy our time In those moments it is easy to forget that everyone involved has a role to play and that those roles all serve to support a complex and vital social contract Sadly we live in a time when our ability to hold civil dialogue with anyone especially those with differing opinions seems to be eroding before our eyes I have little doubt that most if not all of us know of friendships fractured by political differences or of families who cannot hold a conversation about current affairs or civics and of people now unwilling to discuss anything but the most mundane of topics There will of course always be genuine differences of opinion and real disputes www ewcconference com ewc magazine and arguments over important issues Not all of those can be resolved without the help of a neutral a finder of fact or an independent decision maker Not all claims are simple many become very complicated indeed But in these difficult and troubled times I think it is vitally important that we all reflect on the roles we play on how interdependent we truly are This holds true in workers compensation as well as in life Early in my career a colleague once commented that he truly appreciated the Applicant s Bar both for the role they play on behalf of their clients and for the role they played in furthering his career When I questioned him he told me that without the Applicant s Attorney there would be little for employers to fear and thus no need for risk managers to assess and guide the processes He saw our industry as a three legged relationship between claimants employers and claims professionals Each has a vital role to play Each needs the others to help support advise or challenge them Thus our industry is born THE CHALLENGE Setting aside for a moment the disagreements that will always arise the core function of our profession is indeed shared although it must be viewed from differing perspectives Our mandate is to provide the injured worker with the exact benefit due under the law From the claimant s perspective it must be the exact benefit but not one penny less from the employer s the exact benefit but not one penny more All other discussions facts examinations and reports serve but one purpose to define that exact amount or get as close as can be achieved by imperfect humans THE SOLUTION So how do we get through those thorny settlement conferences and move past the liens and the disputes over treatments or costs I suggest that we ask ourselves a simple question Why are we all here Set aside for a moment the absolute certainty that the other side is wrong that their position has no redeeming merit Those of us who have spent substantial portions of our careers in negotiations know that the best negotiators are those who understand two things first what they want and need to make the process a success and second what the other parties want and need as well The art and science of negotiation mainly consists of helping each of the parties meet those needs and the extent to which that happens is the key determiner of the success or failure of any negotiation we undertake An experienced and wise adjuster told me many years ago that the only good claim was a closed claim I have found surprisingly little in the intervening decades to contradict that belief Few of us benefit from dragging things out or from prolonging the process Even when that benefit might exist it is always short lived at most Ultimately everyone in the workers compensation system shares a core set of objectives and we are all well served to remember and to set our sights on achieving those goals When the workdays get long and the pressures rise I urge all of us in this industry to please return to one truth We all serve in the final analysis a common purpose We all serve to protect both the injured worker and the employer from the uncertainty delays and expense of civil litigation Many others assist the core parties in that claim process but the core function of our industry remains A bargain was struck over 100 years ago that still stands at the center of what we do That s something to be proud of and to celebrate together J Tell us your story To submit an article for Peer to Peer email us at Lacey ewcevents com 45

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PEER TO PEER PEER TO PEER A Risk Manager s Perspective on Workers Compensation By David B Dolnick Director Risk Management at TBC LLC 44 EWC Magazine In our often contentious field of workers compensation it s easy to forget that we all share at least in theory a common goal The key objective of our system is the prompt and efficient administration of benefits to and on behalf of injured workers Absent that goal there would be little to stand in the way of chaos and the inevitable problems that arise from it You need only look at the long delays and high expenses of civil litigation to see what might become of our industry without the structure and legal framework of workers compensation laws and regulations Risk managers have most often experience in both systems yet it s easy for them to become as jaded as anyone and to forget how immense an improvement the workers compensation system was over the earlier tort based systems Even where no bodily injury occurs in civil litigation such as construction defect claims the costs of defense can be astronomical and have been known to equal or even exceed the physical damages incurred The costs of defense for employment law claims or bodily injury tort claims routinely exceed 200 000 While difficult or complex workers compensation claims can on occasion reach those levels those are by far the exception not the rule It is far too easy to become mired in the details of some claim or another to become embroiled in the inevitable disputes over a lien or a petition for contribution or any myriad of similar transactions that occupy our time In those moments it is easy to forget that everyone involved has a role to play and that those roles all serve to support a complex and vital social contract Sadly we live in a time when our ability to hold civil dialogue with anyone especially those with differing opinions seems to be eroding before our eyes I have little doubt that most if not all of us know of friendships fractured by political differences or of families who cannot hold a conversation about current affairs or civics and of people now unwilling to discuss anything but the most mundane of topics There will of course always be genuine differences of opinion and real disputes www ewcconference com ewc magazine and arguments over important issues Not all of those can be resolved without the help of a neutral a finder of fact or an independent decision maker Not all claims are simple many become very complicated indeed But in these difficult and troubled times I think it is vitally important that we all reflect on the roles we play on how interdependent we truly are This holds true in workers compensation as well as in life Early in my career a colleague once commented that he truly appreciated the Applicant s Bar both for the role they play on behalf of their clients and for the role they played in furthering his career When I questioned him he told me that without the Applicant s Attorney there would be little for employers to fear and thus no need for risk managers to assess and guide the processes He saw our industry as a three legged relationship between claimants employers and claims professionals Each has a vital role to play Each needs the others to help support advise or challenge them Thus our industry is born THE CHALLENGE Setting aside for a moment the disagreements that will always arise the core function of our profession is indeed shared although it must be viewed from differing perspectives Our mandate is to provide the injured worker with the exact benefit due under the law From the claimant s perspective it must be the exact benefit but not one penny less from the employer s the exact benefit but not one penny more All other discussions facts examinations and reports serve but one purpose to define that exact amount or get as close as can be achieved by imperfect humans THE SOLUTION So how do we get through those thorny settlement conferences and move past the liens and the disputes over treatments or costs I suggest that we ask ourselves a simple question Why are we all here Set aside for a moment the absolute certainty that the other side is wrong that their position has no redeeming merit Those of us who have spent substantial portions of our careers in negotiations know that the best negotiators are those who understand two things first what they want and need to make the process a success and second what the other parties want and need as well The art and science of negotiation mainly consists of helping each of the parties meet those needs and the extent to which that happens is the key determiner of the success or failure of any negotiation we undertake An experienced and wise adjuster told me many years ago that the only good claim was a closed claim I have found surprisingly little in the intervening decades to contradict that belief Few of us benefit from dragging things out or from prolonging the process Even when that benefit might exist it is always short lived at most Ultimately everyone in the workers compensation system shares a core set of objectives and we are all well served to remember and to set our sights on achieving those goals When the workdays get long and the pressures rise I urge all of us in this industry to please return to one truth We all serve in the final analysis a common purpose We all serve to protect both the injured worker and the employer from the uncertainty delays and expense of civil litigation Many others assist the core parties in that claim process but the core function of our industry remains A bargain was struck over 100 years ago that still stands at the center of what we do That s something to be proud of and to celebrate together J Tell us your story To submit an article for Peer to Peer email us at Lacey ewcevents com 45

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RISK MANAGEMENT RISK MANAGEMENT between the in house team and first responders during and after the crisis is to be clear and concise to avoid potential errors Keep in mind that phone lines and cell sites may be down during the emergency Other avenues of communication must be established to ensure continuity of communication during the attack Terrorism and Workplace Violence By Ken Hernandez Managing Director at The Law Offices of Stacey L Tokunaga T he mass shootings at the Pulse nightclub in Orlando Florida on June 12 2016 the California San Bernardino County seminar on December 2 2015 and the Harvest Festival on October 1 2017 in Las Vegas considered to be the worst mass shooting in modern times leaving 59 fatalities and 527 injuries depict acts of violence that can occur anywhere Victims were attendees at functions that promoted social interactions or training activities Incidents such as these underscore the fact that the possibility of an active shooter incident can no longer be a question of if but of when and where The risk of violence is challenging to predict and requires an inordinate amount of time consuming cost prohibitive training to meet the impact of the attack Risk managers are faced with the ominous task of managing any potential workplace violence The foremost priority is developing a concise practical emergency plan that ensures human risk is minimized and optimal business continuity results in a timely fashion 46 DEVELOPING AN EMERGENCY PLAN To develop an emergency plan management and risk managers must begin with a risk assessment that involves in house and local public emergency partner services such as police and fire departments social services hospitals city personnel private contractors etc The in house team is to discuss and address security issues with local law enforcement who will be one of the initial first responders All other partners will also work with the in house team to identify areas of need and the execution of services to meet the needs of an active shooter situation Protocols and procedures must be clearly documented to prevent confusion and misinformation In essence If you fail to plan you plan to fail COMMUNICATIONS The emergency plan must clearly define the most effective protective action for each hazard to ensure the safety of employees and others in the building Communication EWC Magazine KNOW YOUR ROLES AND RESPONSIBILITIES Roles and responsibilities of all employees and management must be clearly defined and executed Controlling access to the emergency scene and keeping people away from unsafe areas is critical Designated personnel must be familiar with the locations and functions of controls for building utility life safety and protective systems These systems include ventilation electrical water sanitation fire suppression security and surveillance Personnel must be trained to understand their vital roles responsibilities and how they fit into the overall emergency plan SITE PLANS AND INFORMATION Copies of the site plans should be available to public emergency services responders who are present at the attack site as the information is vital to ensure the emergency responders ability to assess the site and determine their best plan of action As first responders may be entering the hazard area for the first time they have limited knowledge about its layout and potentially hazardous sites Documentation of building systems will provide the locations of critical water electrical and gas shut off valves Site plans should clearly identify roads parking areas buildings on the property all entrances and exits locations of emergency equipment and building utility protection systems Copies of the plan should be stored with other emergency information such as Material Safety Data Sheets that are required by Right to Know regulations TRAINING AND EXERCISES Training employees for an unexpected crisis can be challenging and costly Full drills can be expensive and time consuming as all involved agencies will be participating in the mock event However the value of practice cannot be undermined when a life saving goal is at stake The participants are placed in positions of actually feeling the stress of timely reactions physical action or making a critical decision Well trained employees will most likely default to their training experience However having safety drills too often or fear inducing speeches may cause unnecessary stress and anxiety which may impact productivity and morale BUSINESS CONTINUITY PLAN This is designed to ensure your business is operational at the earliest opportunity It will include alternative working arrangements for staff who are unable to access the regular workplace A crisis management plan must be sufficiently flexible to create an effective resolution of the problem of returning employees to a normal work atmosphere www ewcconference com ewc magazine POST INCIDENT COMMUNICATION At a time of uncertainty confusion and fear employees will look to the people they trust to provide support guidance and leadership They may ask themselves Do my bosses really care about what s happened to me Do they have the ability to guide us through this major life changing event Building management and risk managers must act and communicate in ways that reassure employees that this is indeed the case The first step should be to provide affected employees with trauma counseling in the form of individual or group therapy to recover from the ultimate traumatic experience they were subjected to PREPARATION FOR SOCIAL MEDIA Planning communication strategies takes center stage in the aftermath of a mass shooting or terrorist attack The three incidents cited earlier indicate the volume of messages video clips and images appearing on social media in the minutes days weeks and months following the events Risk managers must take immediate action and develop a social media plan and promote accurate and timely information for followers To assist in this endeavor consider the following Consider the source Emergency services and governmental agencies will use social media to communicate verified information and guidance about terrorist incidents Identify and follow credible sources to access reliable information in a crisis Ignore speculation and rumor from the less informed Monitor regularly Know what is being said about your company and situation Put resources in place ahead of time to monitor social media Post your own social media messages This is an effective way to communicate minute to minute developments and actions taken to address problems Send messages that report facts and not conjectures The increased threat of terrorism on the world stage and particularly in our own country mandates that public private and governmental agencies hone skills that will reduce the many overwhelming risks resulting from such threats All risk managers and management must develop a risk management emergency plan RMEP in collaboration with various agency partners to prevent catastrophic outcomes from the imminent threat of mass shootings by terrorists or worksite perpetrators J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET l Create an emergency plan for your agency l Employees should be well trained and understand their roles Site plans for all facilities should be available to assist first responders l l Use social media to communicate critical information 47

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RISK MANAGEMENT RISK MANAGEMENT between the in house team and first responders during and after the crisis is to be clear and concise to avoid potential errors Keep in mind that phone lines and cell sites may be down during the emergency Other avenues of communication must be established to ensure continuity of communication during the attack Terrorism and Workplace Violence By Ken Hernandez Managing Director at The Law Offices of Stacey L Tokunaga T he mass shootings at the Pulse nightclub in Orlando Florida on June 12 2016 the California San Bernardino County seminar on December 2 2015 and the Harvest Festival on October 1 2017 in Las Vegas considered to be the worst mass shooting in modern times leaving 59 fatalities and 527 injuries depict acts of violence that can occur anywhere Victims were attendees at functions that promoted social interactions or training activities Incidents such as these underscore the fact that the possibility of an active shooter incident can no longer be a question of if but of when and where The risk of violence is challenging to predict and requires an inordinate amount of time consuming cost prohibitive training to meet the impact of the attack Risk managers are faced with the ominous task of managing any potential workplace violence The foremost priority is developing a concise practical emergency plan that ensures human risk is minimized and optimal business continuity results in a timely fashion 46 DEVELOPING AN EMERGENCY PLAN To develop an emergency plan management and risk managers must begin with a risk assessment that involves in house and local public emergency partner services such as police and fire departments social services hospitals city personnel private contractors etc The in house team is to discuss and address security issues with local law enforcement who will be one of the initial first responders All other partners will also work with the in house team to identify areas of need and the execution of services to meet the needs of an active shooter situation Protocols and procedures must be clearly documented to prevent confusion and misinformation In essence If you fail to plan you plan to fail COMMUNICATIONS The emergency plan must clearly define the most effective protective action for each hazard to ensure the safety of employees and others in the building Communication EWC Magazine KNOW YOUR ROLES AND RESPONSIBILITIES Roles and responsibilities of all employees and management must be clearly defined and executed Controlling access to the emergency scene and keeping people away from unsafe areas is critical Designated personnel must be familiar with the locations and functions of controls for building utility life safety and protective systems These systems include ventilation electrical water sanitation fire suppression security and surveillance Personnel must be trained to understand their vital roles responsibilities and how they fit into the overall emergency plan SITE PLANS AND INFORMATION Copies of the site plans should be available to public emergency services responders who are present at the attack site as the information is vital to ensure the emergency responders ability to assess the site and determine their best plan of action As first responders may be entering the hazard area for the first time they have limited knowledge about its layout and potentially hazardous sites Documentation of building systems will provide the locations of critical water electrical and gas shut off valves Site plans should clearly identify roads parking areas buildings on the property all entrances and exits locations of emergency equipment and building utility protection systems Copies of the plan should be stored with other emergency information such as Material Safety Data Sheets that are required by Right to Know regulations TRAINING AND EXERCISES Training employees for an unexpected crisis can be challenging and costly Full drills can be expensive and time consuming as all involved agencies will be participating in the mock event However the value of practice cannot be undermined when a life saving goal is at stake The participants are placed in positions of actually feeling the stress of timely reactions physical action or making a critical decision Well trained employees will most likely default to their training experience However having safety drills too often or fear inducing speeches may cause unnecessary stress and anxiety which may impact productivity and morale BUSINESS CONTINUITY PLAN This is designed to ensure your business is operational at the earliest opportunity It will include alternative working arrangements for staff who are unable to access the regular workplace A crisis management plan must be sufficiently flexible to create an effective resolution of the problem of returning employees to a normal work atmosphere www ewcconference com ewc magazine POST INCIDENT COMMUNICATION At a time of uncertainty confusion and fear employees will look to the people they trust to provide support guidance and leadership They may ask themselves Do my bosses really care about what s happened to me Do they have the ability to guide us through this major life changing event Building management and risk managers must act and communicate in ways that reassure employees that this is indeed the case The first step should be to provide affected employees with trauma counseling in the form of individual or group therapy to recover from the ultimate traumatic experience they were subjected to PREPARATION FOR SOCIAL MEDIA Planning communication strategies takes center stage in the aftermath of a mass shooting or terrorist attack The three incidents cited earlier indicate the volume of messages video clips and images appearing on social media in the minutes days weeks and months following the events Risk managers must take immediate action and develop a social media plan and promote accurate and timely information for followers To assist in this endeavor consider the following Consider the source Emergency services and governmental agencies will use social media to communicate verified information and guidance about terrorist incidents Identify and follow credible sources to access reliable information in a crisis Ignore speculation and rumor from the less informed Monitor regularly Know what is being said about your company and situation Put resources in place ahead of time to monitor social media Post your own social media messages This is an effective way to communicate minute to minute developments and actions taken to address problems Send messages that report facts and not conjectures The increased threat of terrorism on the world stage and particularly in our own country mandates that public private and governmental agencies hone skills that will reduce the many overwhelming risks resulting from such threats All risk managers and management must develop a risk management emergency plan RMEP in collaboration with various agency partners to prevent catastrophic outcomes from the imminent threat of mass shootings by terrorists or worksite perpetrators J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET l Create an emergency plan for your agency l Employees should be well trained and understand their roles Site plans for all facilities should be available to assist first responders l l Use social media to communicate critical information 47

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MANAGEMENT CENTER MANAGEMENT CENTER From Vice to Virtue Turning Three Deadly Sins into Deadly Wins Focusing on soft skills for hard results By Brenna Hampton San Diego Office Managing Partner and California State Bar Association certified specialist in workers compensation at Hanna Brophy Be brutally honest with yourself about how you spend your time Looking at yourself with brutal honesty is the hardest and most rewarding task you can do The simplest way to do this is to keep a log of what you do each day While this may initially take you away from your work effective planning will help you complete your work more efficiently Just like you can t budget your money without knowing where you re currently spending it you can t budget your time without knowing where it s going either Check in daily weekly and monthly Pre plan your month paying attention to birthdays holidays and other non work commitments If you step back more often you can even schedule a me day to get that DMV appointment in or otherwise engage in self care while satisfied that your work obligations are being fulfilled Preparing ahead and then holding yourself accountable will enable you to get more work done Allowing yourself to modify the plan as you go aand as needed will give you achievement oriented short term satisfaction that will encourage you to commit to your plan A desk calendar is a handy visual accompaniment to your phone or computer based calendar and can help avoid screen fatigue Handle each piece of paper or email once When you have completed a task either file it away or pass it on to someone else Be decisive and move on to the next task Books like Eat That Frog by Brian Tracy are illustrative of avoiding procrastination Delegate wisely and efficiently When you delegate a task make sure the person you are delegating it to is given clear instructions on how to complete the job and they have enough resources and the authority to make decisions that might affect the outcome of the work Establish deadlines and accountability measures Workers compensation and risk management professionals are required to focus on technical skills but soft skills such as time management collaboration positivity building a strong work ethic and developing self discipline should not be overlooked We all Sin where these soft skills are involved but accepting this is the first step to creating a Win TIME MANAGEMENT Most of my daily schedule is committed before I even sit down just trying to meet deadlines It is impossible to 48 meet all my deadlines I don t even know where to start anymore Does this sound familiar Deadlines for claims examiners such as utilization review submission or reporting requirements to the state and federal authorities can keep you on your toes and occupy the majority of your day to day life especially in a world where the industry is highly regulated and highly procedural You are not alone The primary Sin Failure to value and organize your time Here are four tips to turn this into a Win EWC Magazine COLLABORATION AND POSITIVITY Sometimes it s easier to just do it myself than to work with a team The Sin here is the failure to value the input of the team and failure to recognize that multiple viewpoints often add depth to the final product The ability to lead and work effectively in teams is a highly valued skill in organizations and unfortunately quite rare The good news is with a little patience and a positive outlook you can turn otherwise uncomfortable collaboration into a winning proposition First realize collaboration takes many shapes and forms It does not always involve direct contribution or citation of another person in the final product but should still be the result of communication with key players In fact successful collaboration requires each participant to have a fundamental role and to understand their contribution According to their article in Organization Science titled Communication and Trust in Global Virtual Teams Sirkka Jarvenpaa and Dorothy Leidner highlight the importance of being responsive and supportive They recommend team members respond promptly to requests for input and feedback from other team members www ewcconference com ewc magazine provide meaningful input and feedback take the initiative to solve problems that arise in the team assign leadership roles based on expertise follow through on team commitments and demonstrate enthusiasm and positivity in working with the team Second identification of two roles is key a Motivator and a Decider Often the manager takes both roles The Motivator will keep the project moving and on track The Decider will provide accountability and will keep the team focused on results When collaborating most people tend to focus on the process e g how the team members are or are not communicating rather than on results Third positivity does not mean you have to be Pollyanna cheery in the face of tragedy nor that you always have to make the best out of a situation Sometimes confronting why things have gone wrong is the only way to move forward In fact think of positivity in the context of collaboration more scientifically Simply put it means you stay charged Staying charged means refueling regrouping and doing whatever it takes to keep the project moving forward regardless of negative forces that threaten to slow it down or prevent its success BUILDING A STRONG WORK ETHIC AND DEVELOPING SELF DISCIPLINE I will just get to it tomorrow The Sin Sloth and procrastination The Win Realizing hard work is just that hard but it is a decision not an innate talent Aside from being a park area at Disneyland Tomorrow Land is that mythical place where good ideas go to be forgotten You will not get to it tomorrow just like you will not likely forego the chocolate cake in the fridge and you will even less likely get up at 4 a m to start that workout routine you ve been putting off for years Organization and routine can be learned but the unfortunate fact about motivation and work ethic is that they cannot be taught You either care enough to do something the right way or you don t Winston Churchill said it well Some people dream of success others wake up and work hard at it When you step back to manage your time and when you have built good teams through conscientious collaboration you may still be able to meet deadlines even if you genuinely cannot get to the task today If however the task falls solely to you then you need to be your own coach Blow the whistle call the foul get yourself back in gear and in the words of the illustrious Larry the Cable Guy Git R Done J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Time management is most effective when done before engaging in a task l l Collaboration is worth the effort l Working hard is a decision not a talent 49

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MANAGEMENT CENTER MANAGEMENT CENTER From Vice to Virtue Turning Three Deadly Sins into Deadly Wins Focusing on soft skills for hard results By Brenna Hampton San Diego Office Managing Partner and California State Bar Association certified specialist in workers compensation at Hanna Brophy Be brutally honest with yourself about how you spend your time Looking at yourself with brutal honesty is the hardest and most rewarding task you can do The simplest way to do this is to keep a log of what you do each day While this may initially take you away from your work effective planning will help you complete your work more efficiently Just like you can t budget your money without knowing where you re currently spending it you can t budget your time without knowing where it s going either Check in daily weekly and monthly Pre plan your month paying attention to birthdays holidays and other non work commitments If you step back more often you can even schedule a me day to get that DMV appointment in or otherwise engage in self care while satisfied that your work obligations are being fulfilled Preparing ahead and then holding yourself accountable will enable you to get more work done Allowing yourself to modify the plan as you go aand as needed will give you achievement oriented short term satisfaction that will encourage you to commit to your plan A desk calendar is a handy visual accompaniment to your phone or computer based calendar and can help avoid screen fatigue Handle each piece of paper or email once When you have completed a task either file it away or pass it on to someone else Be decisive and move on to the next task Books like Eat That Frog by Brian Tracy are illustrative of avoiding procrastination Delegate wisely and efficiently When you delegate a task make sure the person you are delegating it to is given clear instructions on how to complete the job and they have enough resources and the authority to make decisions that might affect the outcome of the work Establish deadlines and accountability measures Workers compensation and risk management professionals are required to focus on technical skills but soft skills such as time management collaboration positivity building a strong work ethic and developing self discipline should not be overlooked We all Sin where these soft skills are involved but accepting this is the first step to creating a Win TIME MANAGEMENT Most of my daily schedule is committed before I even sit down just trying to meet deadlines It is impossible to 48 meet all my deadlines I don t even know where to start anymore Does this sound familiar Deadlines for claims examiners such as utilization review submission or reporting requirements to the state and federal authorities can keep you on your toes and occupy the majority of your day to day life especially in a world where the industry is highly regulated and highly procedural You are not alone The primary Sin Failure to value and organize your time Here are four tips to turn this into a Win EWC Magazine COLLABORATION AND POSITIVITY Sometimes it s easier to just do it myself than to work with a team The Sin here is the failure to value the input of the team and failure to recognize that multiple viewpoints often add depth to the final product The ability to lead and work effectively in teams is a highly valued skill in organizations and unfortunately quite rare The good news is with a little patience and a positive outlook you can turn otherwise uncomfortable collaboration into a winning proposition First realize collaboration takes many shapes and forms It does not always involve direct contribution or citation of another person in the final product but should still be the result of communication with key players In fact successful collaboration requires each participant to have a fundamental role and to understand their contribution According to their article in Organization Science titled Communication and Trust in Global Virtual Teams Sirkka Jarvenpaa and Dorothy Leidner highlight the importance of being responsive and supportive They recommend team members respond promptly to requests for input and feedback from other team members www ewcconference com ewc magazine provide meaningful input and feedback take the initiative to solve problems that arise in the team assign leadership roles based on expertise follow through on team commitments and demonstrate enthusiasm and positivity in working with the team Second identification of two roles is key a Motivator and a Decider Often the manager takes both roles The Motivator will keep the project moving and on track The Decider will provide accountability and will keep the team focused on results When collaborating most people tend to focus on the process e g how the team members are or are not communicating rather than on results Third positivity does not mean you have to be Pollyanna cheery in the face of tragedy nor that you always have to make the best out of a situation Sometimes confronting why things have gone wrong is the only way to move forward In fact think of positivity in the context of collaboration more scientifically Simply put it means you stay charged Staying charged means refueling regrouping and doing whatever it takes to keep the project moving forward regardless of negative forces that threaten to slow it down or prevent its success BUILDING A STRONG WORK ETHIC AND DEVELOPING SELF DISCIPLINE I will just get to it tomorrow The Sin Sloth and procrastination The Win Realizing hard work is just that hard but it is a decision not an innate talent Aside from being a park area at Disneyland Tomorrow Land is that mythical place where good ideas go to be forgotten You will not get to it tomorrow just like you will not likely forego the chocolate cake in the fridge and you will even less likely get up at 4 a m to start that workout routine you ve been putting off for years Organization and routine can be learned but the unfortunate fact about motivation and work ethic is that they cannot be taught You either care enough to do something the right way or you don t Winston Churchill said it well Some people dream of success others wake up and work hard at it When you step back to manage your time and when you have built good teams through conscientious collaboration you may still be able to meet deadlines even if you genuinely cannot get to the task today If however the task falls solely to you then you need to be your own coach Blow the whistle call the foul get yourself back in gear and in the words of the illustrious Larry the Cable Guy Git R Done J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Time management is most effective when done before engaging in a task l l Collaboration is worth the effort l Working hard is a decision not a talent 49

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MANAGEMENT CENTER MANAGEMENT CENTER How our employees communicate with TIPS AND TAKEAWAYS our clients vendors team members and injured workers sets the tone for our corporate reputations WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Teach management teams to communicate issues along with solutions and to deliver that information in a way that is meaningful and helpful l Providing training is not punishment If done correctly it benefits an employee by adding to their toolbox l Build a Team of Great Communicators Skilled communication enhances corporate culture and claims handling By D Diann Cohen Vice President of Client Relations at Macro Pro Inc I n all organizations there has to be a balance between hard and soft skills When the balance is correct it is like a symphony playing and each musician is on time in tune and complimenting the rest of the orchestra Hard skills are the technical skills your team members have and often why you hired them These skills include specific industry knowledge computer proficiency and the ability to complete a permanent disability rating If you have two candidates all things being equal on their resumes it is their soft skills that will likely lead you to choose one candidate over the other The way the person presented themselves how they interacted during the hiring process and their communication skills probably will and should impress you 50 In this article we re going to focus on communication skills Like it or not how our employees communicate with our clients vendors team members and injured workers sets the tone for our corporate reputations I have been serving claims departments for 30 years and have seen some claims offices that examiners can t wait to leave or will not interview at because the word in the industry is that the claims department is toxic No one is happy working in an environment like that As executives and management we are responsible for building the soft skills our organizations and people need From the receptionist to the upper manager how we train employees or don t sets our corporate atmosphere EWC Magazine Many years ago I had a claims examiner ask me if I would help her out Pat not her real name explained she had received several complaints about her performance and had been put on notice to improve quickly or she would be without a job Her boss gave her a few audio tapes of Pat s conversations with claimants so she could study them and improve After listening to the tapes over and over she had no clue what she was doing wrong In fact she became impressed by her ability to convey vital information quickly and succinctly She grew more impressed each time she listened to the recordings as it validated she hit every major point at first contact She introduced herself explained her role in the claim discussed the benefits described the process and what the claimant could expect and at the end of the conversation asked if the claimant had any questions To Pat the conversations seemed textbook perfect so why in the world was she being reprimanded She had no idea where she was failing and neither her supervisor nor her manager had told her what she needed to improve upon to save her job So I listened to the tapes Yes she had communicated the necessary information in full but we ve all heard the adage it s not what you say it s how you say it What Pat s manager had failed to explain to her was that while Pat was perfectly thorough in relaying vital information to claimants her communication style was abrupt cold matter of fact and not at all reassuring that the organization would do everything it could to make the claimant whole I told Pat what I had detected on the tapes beyond her words her soft skills Her tone phraseology and lack of empathy gave the impression of a claims handler in a hurry to get off the phone and start processing paperwork Over the next few weeks I helped Pat build better communication skills so that her claimants were more at ease and appreciative of her efforts on their behalf We rewrote the script she used when talking to claimants for the first time We chose words that were more empathetic and sympathetic practiced softening her tone with role playing built in pleasantries and even inspected her workspace She had plenty of room to work and be organized but her chair was old falling apart and uncomfortable I suggested she request a new one Believe it or not being uncomfortable in her chair for 8 hours a day was part of her tone issue Strong communication skills from the top down create healthy work environments and reflect the value we place on how clients business partners and injured workers are treated How will you stimulate growth in your organization s communication skills J www ewcconference com ewc magazine l Spend some money to replace old and worn out furniture Employees don t come to us as perfect It is our job to ensure they have the technical and soft skills training needed to make the employee and the organization successful l Consider paying an expert to come in from time to time It is an investment that pays for itself as it offers many benefits for the corporation including increased employee retention and client satisfaction l It is management s responsibility to develop a communication style and corporate culture that creates the best work environment possible l Survey your staff you may have a team member with excellent communication or soft skills If so consider starting a training program within your organization and supplement it with training from claims education experts l 51

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MANAGEMENT CENTER MANAGEMENT CENTER How our employees communicate with TIPS AND TAKEAWAYS our clients vendors team members and injured workers sets the tone for our corporate reputations WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Teach management teams to communicate issues along with solutions and to deliver that information in a way that is meaningful and helpful l Providing training is not punishment If done correctly it benefits an employee by adding to their toolbox l Build a Team of Great Communicators Skilled communication enhances corporate culture and claims handling By D Diann Cohen Vice President of Client Relations at Macro Pro Inc I n all organizations there has to be a balance between hard and soft skills When the balance is correct it is like a symphony playing and each musician is on time in tune and complimenting the rest of the orchestra Hard skills are the technical skills your team members have and often why you hired them These skills include specific industry knowledge computer proficiency and the ability to complete a permanent disability rating If you have two candidates all things being equal on their resumes it is their soft skills that will likely lead you to choose one candidate over the other The way the person presented themselves how they interacted during the hiring process and their communication skills probably will and should impress you 50 In this article we re going to focus on communication skills Like it or not how our employees communicate with our clients vendors team members and injured workers sets the tone for our corporate reputations I have been serving claims departments for 30 years and have seen some claims offices that examiners can t wait to leave or will not interview at because the word in the industry is that the claims department is toxic No one is happy working in an environment like that As executives and management we are responsible for building the soft skills our organizations and people need From the receptionist to the upper manager how we train employees or don t sets our corporate atmosphere EWC Magazine Many years ago I had a claims examiner ask me if I would help her out Pat not her real name explained she had received several complaints about her performance and had been put on notice to improve quickly or she would be without a job Her boss gave her a few audio tapes of Pat s conversations with claimants so she could study them and improve After listening to the tapes over and over she had no clue what she was doing wrong In fact she became impressed by her ability to convey vital information quickly and succinctly She grew more impressed each time she listened to the recordings as it validated she hit every major point at first contact She introduced herself explained her role in the claim discussed the benefits described the process and what the claimant could expect and at the end of the conversation asked if the claimant had any questions To Pat the conversations seemed textbook perfect so why in the world was she being reprimanded She had no idea where she was failing and neither her supervisor nor her manager had told her what she needed to improve upon to save her job So I listened to the tapes Yes she had communicated the necessary information in full but we ve all heard the adage it s not what you say it s how you say it What Pat s manager had failed to explain to her was that while Pat was perfectly thorough in relaying vital information to claimants her communication style was abrupt cold matter of fact and not at all reassuring that the organization would do everything it could to make the claimant whole I told Pat what I had detected on the tapes beyond her words her soft skills Her tone phraseology and lack of empathy gave the impression of a claims handler in a hurry to get off the phone and start processing paperwork Over the next few weeks I helped Pat build better communication skills so that her claimants were more at ease and appreciative of her efforts on their behalf We rewrote the script she used when talking to claimants for the first time We chose words that were more empathetic and sympathetic practiced softening her tone with role playing built in pleasantries and even inspected her workspace She had plenty of room to work and be organized but her chair was old falling apart and uncomfortable I suggested she request a new one Believe it or not being uncomfortable in her chair for 8 hours a day was part of her tone issue Strong communication skills from the top down create healthy work environments and reflect the value we place on how clients business partners and injured workers are treated How will you stimulate growth in your organization s communication skills J www ewcconference com ewc magazine l Spend some money to replace old and worn out furniture Employees don t come to us as perfect It is our job to ensure they have the technical and soft skills training needed to make the employee and the organization successful l Consider paying an expert to come in from time to time It is an investment that pays for itself as it offers many benefits for the corporation including increased employee retention and client satisfaction l It is management s responsibility to develop a communication style and corporate culture that creates the best work environment possible l Survey your staff you may have a team member with excellent communication or soft skills If so consider starting a training program within your organization and supplement it with training from claims education experts l 51

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MANAGEMENT CENTER MANAGEMENT CENTER Guide Your B Players to Success Help your claims adjusters go from good to great By Kiley Phillips Director of Marketing Web Development at TheBestIRS In the early stages of my management career I had thought employee engagement was achieved by treating all claims adjusters the same but after listening to an American Staffing Association webinar recently I learned that this was anything but the case T he webinar hosted by Tom Gimbel Founder and CEO of LaSalle Network focuses on B players and how to develop a strategic plan to increase their engagement Each employee and adjuster have different goals values and needs to be successful in their career Here are key points from the webinar on how to increase your B players engagement DEFINE WHAT A B PLAYER IS According to Gimbel B players are those employees that in a rough ranking are neither fast track A players who make up the top 10 percent nor the struggling C players who make up the bottom 10 percent This means that B players will consist of 80 percent of your claims adjuster team Gimbel gave a structured overview of the B player Often possesses little to no confidence but Is open to trying new things Responds well to and implements the feedback you give Excels with guidance B players on your team want feedback Incentives motivate them Is curious and interested they will attend networking events read books and listen to podcasts l l l l l l STACK RANK CLAIMS ADJUSTERS Your next step should be to stack rank your employees This will help you gain a sound understanding of where everyone on your team is positioned Remember 10 percent of your claims adjusters will be the A players 80 percent will be B players and the remaining 10 percent will be C players Gimbel suggests asking these questions to stack rank your employees appropriately Do they have potential Are they indispensable to your team of claims adjusters Do they implement feedback immediately When you re speaking to them do they have negative body language or become defensive Do they make the same mistakes more than once Are they engaged If they have an I don t care attitude it can become contagious throughout your team and eventually negatively affect the office Why would you keep an employee who doesn t care about your company or their position After asking yourself the above questions stack rank your employees into different sections Mix it up and stack rank by department Claims Adjusters Human Resources Sales Marketing Training IT etc You could rank them by seniority Managers Team Leads Senior Claims Adjusters and Adjusters By stack ranking your employees you will begin to develop an engagement plan for the adjusters who need it HAVE THE TOUGH TALKS The B players in your team thrive on guidance and constructive feedback B player claims adjusters need to know their strengths weaknesses goals improvement areas and their career paths based on their managers feedback As their manager it is up to you to support them so they can improve and excel Sit down individually with B players to discuss career paths Remember B players find great value in managers devoting time to them and their careers Many managers find that B players thrive on small boosts of confidence such as public encouragement or a monetary boost THE PLAN FOR YOUR B PLAYERS After you ve determined who your players are staff ranked your employees and had the tough talks with your claims adjusters you ll need to begin your plan to drive engagement Gimbel suggests the following Set deadlines and expectations right away with your B players to hold them accountable Due dates are vital when it comes to deadlines I ve found that if I don t put a due date on something for myself or my team it keeps getting pushed back so always add a due date Pair them with an A player The A player will see the B player has a valuable role in the company and in turn the B player will be spending quality time with someone who has achieved a high level of success and can offer guidance on how to improve Continue to offer your time for guidance feedback and Q A sessions with your B players Offer praise and encouragement when your claims adjuster has done a great job or shown improvement J l l l l l l TIPS AND TAKEAWAYS l l WHAT TO CONSIDER l RED FLAGS STEPS TO TAKE DON T FORGET l 52 EWC Magazine www ewcconference com ewc magazine No plan will work for every employee Each adjuster or employee is different and values different aspects of their career This is necessary to understand when working with your B players as some might want to stay in their position and keep their current role By not being a high performing A player or in the lower category of the C players they might feel like they re in their groove and happy with it l To encourage your employees to do more and excel at their jobs you ll have to dig deep to find what they value Is it more money or more PTO Maybe they want the flexibility to work from home on Fridays or they d love to add a few additional licenses under their belt l 53

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MANAGEMENT CENTER MANAGEMENT CENTER Guide Your B Players to Success Help your claims adjusters go from good to great By Kiley Phillips Director of Marketing Web Development at TheBestIRS In the early stages of my management career I had thought employee engagement was achieved by treating all claims adjusters the same but after listening to an American Staffing Association webinar recently I learned that this was anything but the case T he webinar hosted by Tom Gimbel Founder and CEO of LaSalle Network focuses on B players and how to develop a strategic plan to increase their engagement Each employee and adjuster have different goals values and needs to be successful in their career Here are key points from the webinar on how to increase your B players engagement DEFINE WHAT A B PLAYER IS According to Gimbel B players are those employees that in a rough ranking are neither fast track A players who make up the top 10 percent nor the struggling C players who make up the bottom 10 percent This means that B players will consist of 80 percent of your claims adjuster team Gimbel gave a structured overview of the B player Often possesses little to no confidence but Is open to trying new things Responds well to and implements the feedback you give Excels with guidance B players on your team want feedback Incentives motivate them Is curious and interested they will attend networking events read books and listen to podcasts l l l l l l STACK RANK CLAIMS ADJUSTERS Your next step should be to stack rank your employees This will help you gain a sound understanding of where everyone on your team is positioned Remember 10 percent of your claims adjusters will be the A players 80 percent will be B players and the remaining 10 percent will be C players Gimbel suggests asking these questions to stack rank your employees appropriately Do they have potential Are they indispensable to your team of claims adjusters Do they implement feedback immediately When you re speaking to them do they have negative body language or become defensive Do they make the same mistakes more than once Are they engaged If they have an I don t care attitude it can become contagious throughout your team and eventually negatively affect the office Why would you keep an employee who doesn t care about your company or their position After asking yourself the above questions stack rank your employees into different sections Mix it up and stack rank by department Claims Adjusters Human Resources Sales Marketing Training IT etc You could rank them by seniority Managers Team Leads Senior Claims Adjusters and Adjusters By stack ranking your employees you will begin to develop an engagement plan for the adjusters who need it HAVE THE TOUGH TALKS The B players in your team thrive on guidance and constructive feedback B player claims adjusters need to know their strengths weaknesses goals improvement areas and their career paths based on their managers feedback As their manager it is up to you to support them so they can improve and excel Sit down individually with B players to discuss career paths Remember B players find great value in managers devoting time to them and their careers Many managers find that B players thrive on small boosts of confidence such as public encouragement or a monetary boost THE PLAN FOR YOUR B PLAYERS After you ve determined who your players are staff ranked your employees and had the tough talks with your claims adjusters you ll need to begin your plan to drive engagement Gimbel suggests the following Set deadlines and expectations right away with your B players to hold them accountable Due dates are vital when it comes to deadlines I ve found that if I don t put a due date on something for myself or my team it keeps getting pushed back so always add a due date Pair them with an A player The A player will see the B player has a valuable role in the company and in turn the B player will be spending quality time with someone who has achieved a high level of success and can offer guidance on how to improve Continue to offer your time for guidance feedback and Q A sessions with your B players Offer praise and encouragement when your claims adjuster has done a great job or shown improvement J l l l l l l TIPS AND TAKEAWAYS l l WHAT TO CONSIDER l RED FLAGS STEPS TO TAKE DON T FORGET l 52 EWC Magazine www ewcconference com ewc magazine No plan will work for every employee Each adjuster or employee is different and values different aspects of their career This is necessary to understand when working with your B players as some might want to stay in their position and keep their current role By not being a high performing A player or in the lower category of the C players they might feel like they re in their groove and happy with it l To encourage your employees to do more and excel at their jobs you ll have to dig deep to find what they value Is it more money or more PTO Maybe they want the flexibility to work from home on Fridays or they d love to add a few additional licenses under their belt l 53

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LEGAL LEGAL New Law Now What Tips to know if it hurts or helps your case By James Rossi Rossi Law Group O ver the years you have probably heard or read about changes in the law big cases that have come down and the like Each time a new legal authority comes down it is important to know the impact that authority has on the state of the law To assist in determining the value of a legal authority this article discusses the relevance of the most common types of legal authorities in California workers compensation For starters the mother of all legal authority in California workers compensation is the California Constitution The Constitution provides the legislature with the power to create the workers compensation system All statutes rules and court decisions must be consistent with the Constitution Next in line are the statutes passed by the California Legislature Assembly and Senate which can only be invalidated if they are unconstitutional Although it addresses more than just workers compensation the Labor Code is the primary statutory authority for workers compensation Then there are California Codes of Regulations which include numerous rules that serve to codify the rules and procedures of administrative law Only a portion of the rules pertain to workers compensation They are enforceable law but must be consistent with the Labor Code Statutory authority to adopt or change codes is granted to the administrative director and the appeals board Public hearings are generally required to go forward before adoption Once the legislature passes the statutes and the rules are created the laws must somehow be enforced This is where the various courts come in The courts issue opinions that interpret the law A case starts in the WCAB and once all levels of the WCAB are exhausted as discussed below the case can go to the California Court of Appeal and on very rare occasion all the way up to the California Supreme Court There are various types of court decisions rendered it is very important to know the type of opinion and which court issued it to know its persuasive value THE WCAB The case will start in a local district office of the WCAB A local workers compensation judge WCJ will issue a decision at the trial level Q Is the decision of a local WCJ judge citable and considered binding precedent The decision of a local judge is not binding precedent and only indicates what that judge believes on a specific issue Typically only parties to a case are privy to these decisions If one of the parties disagrees with the decision of the WCJ their remedy is to file a petition for reconsideration Once a petition is filed the case moves up to the WCAB which is usually comprised of seven commissioners There are various types of decisions that the WCAB can issue Most decisions issued by the WCAB are WCAB panel decisions WCAB panel decisions are opinions of three commissioners assigned to a case that has been appealed from the trial court level Q Are WCAB panel decisions citable and considered binding precedent These decisions have no binding precedential effect and are not binding on other panels However these opinions do have significant value as they may be cited and are even admissible in appeals board proceedings Many of the panel decisions are published in the California Compensation Cases CCCs and California Workers Compensation Reporter CWCR The next level of decision is a significant panel decision These are decisions on cases presenting novel or recurring issues that are important to the community they are reviewed by all of the commissioners Q Are WCAB significant panel decisions citable and considered binding precedent The decisions are not binding but are commonly cited on issues where the law is otherwise quiet and have significant value The most important decision issued by the WCAB is an en banc decision These are decisions issued when the entire group of commissioners sits to decide a case to clear up conflicts or to decide novel issues Q Are WCAB en banc decisions citable and considered binding precedent When a decision is declared en banc the decision has the binding force of law on WCAB panels and WCJs unless the California Appellate Court or Supreme Court issues an opinion that overrules or suspends the opinion 54 EWC Magazine www ewcconference com ewc magazine THE CALIFORNIA COURT OF APPEAL Once a case has worked its way through the WCAB an aggrieved party can file a writ to the California Appellate Court to challenge the decision of the WCAB Most writs are summarily denied with no discussion whatsoever There are various types of opinions of the Court of Appeal each with a different persuasive and binding effect Oftentimes the Court of Appeal will reject the appeal and deny the writ In some cases summaries will be published in the CCCs These cases are known as writ denied opinions Q Are Court of Appeal writ denied opinions citable and considered binding precedent The denial of the writ does not mean the Court of Appeal agreed with the WCAB but the opinions may be cited in appellate argument to show what the WCAB has done in the past They carry great weight and should be followed unless the interpretations are clearly erroneous Q Are Court of Appeal unpublished opinions citable and considered binding Sometimes the Court of Appeal will issue an opinion that is not certified for publication These are called unpublished opinions and are not binding nor citable by the parties in other cases Attorneys are required to point out that the decision is unpublished The opinions can provide some guidance but are not controlling precedent Most importantly the Court of Appeal will sometimes issue opinions certified for publication called published opinions Q Are Court of Appeal published opinions citable and considered binding precedent These opinions are citable and are binding on the WCAB With that said the published opinions of one district are not binding on other districts of the Court of Appeal California has six districts Sometimes this results in conflicts between the various districts of the Court of Appeal When this happens the WCAB must decide which of the conflicting opinions is correct Sometimes the California Supreme Court will step in to resolve the conflict CALIFORNIA SUPREME COURT The highest court in California is the California Supreme Court It is the ultimate authority in interpreting statutes and CCRs Most cases petitioned for writ of certiorari to the California Supreme Court are denied Every now and then the Supreme Court will accept a case usually to clear up a conflict in the appellate district courts or to decide a very important issue Q Are decisions of the California Supreme Court citable and considered binding precedent Decisions of the California Supreme Court are binding on the WCAB and all appellate district courts unless overturned by a subsequent decision of the Supreme Court J 55

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LEGAL LEGAL New Law Now What Tips to know if it hurts or helps your case By James Rossi Rossi Law Group O ver the years you have probably heard or read about changes in the law big cases that have come down and the like Each time a new legal authority comes down it is important to know the impact that authority has on the state of the law To assist in determining the value of a legal authority this article discusses the relevance of the most common types of legal authorities in California workers compensation For starters the mother of all legal authority in California workers compensation is the California Constitution The Constitution provides the legislature with the power to create the workers compensation system All statutes rules and court decisions must be consistent with the Constitution Next in line are the statutes passed by the California Legislature Assembly and Senate which can only be invalidated if they are unconstitutional Although it addresses more than just workers compensation the Labor Code is the primary statutory authority for workers compensation Then there are California Codes of Regulations which include numerous rules that serve to codify the rules and procedures of administrative law Only a portion of the rules pertain to workers compensation They are enforceable law but must be consistent with the Labor Code Statutory authority to adopt or change codes is granted to the administrative director and the appeals board Public hearings are generally required to go forward before adoption Once the legislature passes the statutes and the rules are created the laws must somehow be enforced This is where the various courts come in The courts issue opinions that interpret the law A case starts in the WCAB and once all levels of the WCAB are exhausted as discussed below the case can go to the California Court of Appeal and on very rare occasion all the way up to the California Supreme Court There are various types of court decisions rendered it is very important to know the type of opinion and which court issued it to know its persuasive value THE WCAB The case will start in a local district office of the WCAB A local workers compensation judge WCJ will issue a decision at the trial level Q Is the decision of a local WCJ judge citable and considered binding precedent The decision of a local judge is not binding precedent and only indicates what that judge believes on a specific issue Typically only parties to a case are privy to these decisions If one of the parties disagrees with the decision of the WCJ their remedy is to file a petition for reconsideration Once a petition is filed the case moves up to the WCAB which is usually comprised of seven commissioners There are various types of decisions that the WCAB can issue Most decisions issued by the WCAB are WCAB panel decisions WCAB panel decisions are opinions of three commissioners assigned to a case that has been appealed from the trial court level Q Are WCAB panel decisions citable and considered binding precedent These decisions have no binding precedential effect and are not binding on other panels However these opinions do have significant value as they may be cited and are even admissible in appeals board proceedings Many of the panel decisions are published in the California Compensation Cases CCCs and California Workers Compensation Reporter CWCR The next level of decision is a significant panel decision These are decisions on cases presenting novel or recurring issues that are important to the community they are reviewed by all of the commissioners Q Are WCAB significant panel decisions citable and considered binding precedent The decisions are not binding but are commonly cited on issues where the law is otherwise quiet and have significant value The most important decision issued by the WCAB is an en banc decision These are decisions issued when the entire group of commissioners sits to decide a case to clear up conflicts or to decide novel issues Q Are WCAB en banc decisions citable and considered binding precedent When a decision is declared en banc the decision has the binding force of law on WCAB panels and WCJs unless the California Appellate Court or Supreme Court issues an opinion that overrules or suspends the opinion 54 EWC Magazine www ewcconference com ewc magazine THE CALIFORNIA COURT OF APPEAL Once a case has worked its way through the WCAB an aggrieved party can file a writ to the California Appellate Court to challenge the decision of the WCAB Most writs are summarily denied with no discussion whatsoever There are various types of opinions of the Court of Appeal each with a different persuasive and binding effect Oftentimes the Court of Appeal will reject the appeal and deny the writ In some cases summaries will be published in the CCCs These cases are known as writ denied opinions Q Are Court of Appeal writ denied opinions citable and considered binding precedent The denial of the writ does not mean the Court of Appeal agreed with the WCAB but the opinions may be cited in appellate argument to show what the WCAB has done in the past They carry great weight and should be followed unless the interpretations are clearly erroneous Q Are Court of Appeal unpublished opinions citable and considered binding Sometimes the Court of Appeal will issue an opinion that is not certified for publication These are called unpublished opinions and are not binding nor citable by the parties in other cases Attorneys are required to point out that the decision is unpublished The opinions can provide some guidance but are not controlling precedent Most importantly the Court of Appeal will sometimes issue opinions certified for publication called published opinions Q Are Court of Appeal published opinions citable and considered binding precedent These opinions are citable and are binding on the WCAB With that said the published opinions of one district are not binding on other districts of the Court of Appeal California has six districts Sometimes this results in conflicts between the various districts of the Court of Appeal When this happens the WCAB must decide which of the conflicting opinions is correct Sometimes the California Supreme Court will step in to resolve the conflict CALIFORNIA SUPREME COURT The highest court in California is the California Supreme Court It is the ultimate authority in interpreting statutes and CCRs Most cases petitioned for writ of certiorari to the California Supreme Court are denied Every now and then the Supreme Court will accept a case usually to clear up a conflict in the appellate district courts or to decide a very important issue Q Are decisions of the California Supreme Court citable and considered binding precedent Decisions of the California Supreme Court are binding on the WCAB and all appellate district courts unless overturned by a subsequent decision of the Supreme Court J 55

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LEGISLATIVE LEGISLATIVE SB 1160 The Road to Exemption By Glenn Crafts DC QME Assistant Vice President Utilization Review Quality Assurance at EK Health 56 EWC Magazine O nce upon a time health care providers roamed workers compensation freely and without restraint treating without limitations that is until SB 228 became effective in 2004 and the implementation of what is now known as utilization review UR based on Evidence Based Medicine EBM Costly medically unnecessary treatment was being rendered with reckless abandon across multiple specialties A playbook was needed to rein in the questionable providers and help ensure that only medically necessary care was given and more importantly contain unreasonable costs burdening the claims administrator Thus the Medical Treatment Utilization Schedule MTUS a proprietary medical treatment guideline was established This playbook enables health care providers to all be on the same page in determining what type of treatment is appropriate The MTUS is driven by the diagnosis and the concomitant medical treatment guideline that corresponds Frequency and duration of care were no longer a mystery However with great power comes great responsibility While utilization review helped to curtail unnecessary treatment it also placed limitations and delays on medically necessary treatment Utilization review was required should the claims administrator not be able to authorize the treatment requested This created somewhat of a conundrum when causation arose In 2013 SB 863 repealed the findings of the Simmons 2005 en banc case whereby new body part s were required to go through formal UR first followed by a subsequent objection by the claims administrator With SB 863 the questionable body part may be deferred absent the need for formal UR pending the claims administrator s investigation into causation Formal UR could still be applied in these cases strictly to determine medical necessity and if denied would still be precluded from the Independent Medical Review IMR process due to the question of causation SB 863 rightfully allowed the issue of causation to be determined by the claims administrator without the immediate need to go through UR For all intents and purposes this eliminated the potential risk of medically necessary approvals by a UR physician while causation was still being investigated In 2018 SB 1160 continued to make positive gains related to expedited treatment requests and treatment in the initial 30 days from the date of injury DOI SB 1160 identified treatment that was considered exempt from formal prospective utilization review This enabled obvious medically necessary care to be rendered without going through a formal UR process eliminating delay of care to the injured worker Specific exempt treatment included emergency services medications designated under the MTUS drug formulary and services provided by a predesignated physician Medical Provider Network MPN or Health Care Organization www ewcconference com ewc magazine HCO provider or employer selected physician or facility Other significant criteria must also be met treatment must be related to an accepted body part or condition that is addressed by the MTUS the treatment plan must be outlined within the physician s report usually a Doctor s First Report of Occupational Injury or Illness DFR and accompanying Request for Authorization RFA that is submitted to the claims administrator or employer and most importantly all treatment to be considered exempt must be consistent with the MTUS So what about treatment requested beyond the 30 days from the date of injury after 01 01 2018 For any SB 1160 exempt related treatment after the initial 30 days from DOI the MTUS would be applied and the required guideline hierarchy must be adhered to The MTUS is presumptively correct followed by current American College of Occupational and Environmental Medicine ACOEM or Official Disability Guidelines ODG then other EBM guidelines www guideline gov and finally peer reviewed journals www ncbi nih gov pubmed The MTUS drug formulary would be of paramount importance in leading the path to enabling care of injured workers by defining a clear route of exemption The MTUS drug formulary clearly delineates exempt vs non exempt medications which not only expedites care but also provides a consistent manner in determining which medications are in fact exempt However the most significant prerequisite often missed is the recognition that exempt medication and exempt treatment are only considered exempt if they are consistent with the MTUS In other words even if a treatment is listed as exempt it must still meet the medical necessity of the guidelines This means that the burden remains with the requesting treating physician to clearly document both subjective and objective factors and findings to substantiate the medical necessity of the treatment being requested J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Understanding which exempt treatment and medications do not require formal prospective utilization review will avoid unnecessary fees by escalating to a physician reviewer l Appropriate recognition of exempt treatment and medication eliminates the unnecessary delay of medically necessary care to the injured worker l Causation should be addressed by the claims administrator before going through utilization review to avoid potential approvals based solely on medical necessity l 57

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LEGISLATIVE LEGISLATIVE SB 1160 The Road to Exemption By Glenn Crafts DC QME Assistant Vice President Utilization Review Quality Assurance at EK Health 56 EWC Magazine O nce upon a time health care providers roamed workers compensation freely and without restraint treating without limitations that is until SB 228 became effective in 2004 and the implementation of what is now known as utilization review UR based on Evidence Based Medicine EBM Costly medically unnecessary treatment was being rendered with reckless abandon across multiple specialties A playbook was needed to rein in the questionable providers and help ensure that only medically necessary care was given and more importantly contain unreasonable costs burdening the claims administrator Thus the Medical Treatment Utilization Schedule MTUS a proprietary medical treatment guideline was established This playbook enables health care providers to all be on the same page in determining what type of treatment is appropriate The MTUS is driven by the diagnosis and the concomitant medical treatment guideline that corresponds Frequency and duration of care were no longer a mystery However with great power comes great responsibility While utilization review helped to curtail unnecessary treatment it also placed limitations and delays on medically necessary treatment Utilization review was required should the claims administrator not be able to authorize the treatment requested This created somewhat of a conundrum when causation arose In 2013 SB 863 repealed the findings of the Simmons 2005 en banc case whereby new body part s were required to go through formal UR first followed by a subsequent objection by the claims administrator With SB 863 the questionable body part may be deferred absent the need for formal UR pending the claims administrator s investigation into causation Formal UR could still be applied in these cases strictly to determine medical necessity and if denied would still be precluded from the Independent Medical Review IMR process due to the question of causation SB 863 rightfully allowed the issue of causation to be determined by the claims administrator without the immediate need to go through UR For all intents and purposes this eliminated the potential risk of medically necessary approvals by a UR physician while causation was still being investigated In 2018 SB 1160 continued to make positive gains related to expedited treatment requests and treatment in the initial 30 days from the date of injury DOI SB 1160 identified treatment that was considered exempt from formal prospective utilization review This enabled obvious medically necessary care to be rendered without going through a formal UR process eliminating delay of care to the injured worker Specific exempt treatment included emergency services medications designated under the MTUS drug formulary and services provided by a predesignated physician Medical Provider Network MPN or Health Care Organization www ewcconference com ewc magazine HCO provider or employer selected physician or facility Other significant criteria must also be met treatment must be related to an accepted body part or condition that is addressed by the MTUS the treatment plan must be outlined within the physician s report usually a Doctor s First Report of Occupational Injury or Illness DFR and accompanying Request for Authorization RFA that is submitted to the claims administrator or employer and most importantly all treatment to be considered exempt must be consistent with the MTUS So what about treatment requested beyond the 30 days from the date of injury after 01 01 2018 For any SB 1160 exempt related treatment after the initial 30 days from DOI the MTUS would be applied and the required guideline hierarchy must be adhered to The MTUS is presumptively correct followed by current American College of Occupational and Environmental Medicine ACOEM or Official Disability Guidelines ODG then other EBM guidelines www guideline gov and finally peer reviewed journals www ncbi nih gov pubmed The MTUS drug formulary would be of paramount importance in leading the path to enabling care of injured workers by defining a clear route of exemption The MTUS drug formulary clearly delineates exempt vs non exempt medications which not only expedites care but also provides a consistent manner in determining which medications are in fact exempt However the most significant prerequisite often missed is the recognition that exempt medication and exempt treatment are only considered exempt if they are consistent with the MTUS In other words even if a treatment is listed as exempt it must still meet the medical necessity of the guidelines This means that the burden remains with the requesting treating physician to clearly document both subjective and objective factors and findings to substantiate the medical necessity of the treatment being requested J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Understanding which exempt treatment and medications do not require formal prospective utilization review will avoid unnecessary fees by escalating to a physician reviewer l Appropriate recognition of exempt treatment and medication eliminates the unnecessary delay of medically necessary care to the injured worker l Causation should be addressed by the claims administrator before going through utilization review to avoid potential approvals based solely on medical necessity l 57

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LEGISLATIVE LEGISLATIVE Evolution C alifornians live in a state whose economy is ranked fifth largest in the world Nearly 40 million residents make California more populous than 35 nations Its population is 12 percent of the U S population and of the 17 9 billion in workers compensation insurance premiums spent every year by the nation California s share is 29 percent or 5 2 billion from a Revolution THE BEGINNING It is difficult to conceptualize a world in which our workers compensation system did not exist It is the next to largest benefit delivery system in the world second only to Social Security A century ago the system did not exist At the time of the American Revolution a workers compensation System was not needed It was only with the advent of the Industrial Revolution that required work related injuries to be treated differently from non work related injuries that the workers compensation system evolved The social ramifications of the Industrial Revolution afforded farm laborers the opportunity to seek work in the cities factories Initially these factories were dangerous places as production was in its infancy stage and required fine tuning Safety of the workers around machinery became a top priority as workers were injured at a high rate without recourse Workers were typically providers of one income family units Without that income families became destitute and ultimately relied on state welfare programs Moreover the employer lost skilled workers that impacted production due to prolonged absences from work as a result of lack of immediate medical care Enter the civil suit era As civil verdicts were difficult to predict reserves and outcomes became problematic because of the unforeseen long recovery time Ultimately fledgling businesses became victims of a single inflated verdict and doors closed The larger established factories that survived the unfavorable political climate were notable titans of business called Robber Barons In 1911 California adopted its first workers compensation system the Roseberry Act only for it to be superseded by the Boynton Act in 1913 The laws enacted at the time were then codified into the Labor Code sometime in the 1930s The system involved the worker employer and the State who administered the benefits Fault and excessive damages for pain and suffering were removed from the equation The damages and benefits were clearly defined into Temporary Disability Medical Care and Permanent Disability The State s role was to monitor and legislate safety regulations as well as adjudicate disputes between employer and employee The plan provided the injured worker immediate medical care to resolve the injury in a timely fashion and return the worker back to work The system limited the recovery benefits and the employer was By Stacey Tokunaga Principal Attorney with Donald P Liebherr Associate Attorney The Law Offices of Stacey L Tokunaga 58 EWC Magazine www ewcconference com ewc magazine 59

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LEGISLATIVE LEGISLATIVE Evolution C alifornians live in a state whose economy is ranked fifth largest in the world Nearly 40 million residents make California more populous than 35 nations Its population is 12 percent of the U S population and of the 17 9 billion in workers compensation insurance premiums spent every year by the nation California s share is 29 percent or 5 2 billion from a Revolution THE BEGINNING It is difficult to conceptualize a world in which our workers compensation system did not exist It is the next to largest benefit delivery system in the world second only to Social Security A century ago the system did not exist At the time of the American Revolution a workers compensation System was not needed It was only with the advent of the Industrial Revolution that required work related injuries to be treated differently from non work related injuries that the workers compensation system evolved The social ramifications of the Industrial Revolution afforded farm laborers the opportunity to seek work in the cities factories Initially these factories were dangerous places as production was in its infancy stage and required fine tuning Safety of the workers around machinery became a top priority as workers were injured at a high rate without recourse Workers were typically providers of one income family units Without that income families became destitute and ultimately relied on state welfare programs Moreover the employer lost skilled workers that impacted production due to prolonged absences from work as a result of lack of immediate medical care Enter the civil suit era As civil verdicts were difficult to predict reserves and outcomes became problematic because of the unforeseen long recovery time Ultimately fledgling businesses became victims of a single inflated verdict and doors closed The larger established factories that survived the unfavorable political climate were notable titans of business called Robber Barons In 1911 California adopted its first workers compensation system the Roseberry Act only for it to be superseded by the Boynton Act in 1913 The laws enacted at the time were then codified into the Labor Code sometime in the 1930s The system involved the worker employer and the State who administered the benefits Fault and excessive damages for pain and suffering were removed from the equation The damages and benefits were clearly defined into Temporary Disability Medical Care and Permanent Disability The State s role was to monitor and legislate safety regulations as well as adjudicate disputes between employer and employee The plan provided the injured worker immediate medical care to resolve the injury in a timely fashion and return the worker back to work The system limited the recovery benefits and the employer was By Stacey Tokunaga Principal Attorney with Donald P Liebherr Associate Attorney The Law Offices of Stacey L Tokunaga 58 EWC Magazine www ewcconference com ewc magazine 59

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LEGISLATIVE able to reserve for its exposure easily The State benefited with the removal of families of injured workers from its social welfare system MATURATION PROCESS or WORK IN PROGRESS This system moved right along first as the Industrial Occupation Commission IOC then as the Industrial Accident Commission IAC and ultimately as the Department of Industrial Relations DIR As California grew in population so did the workers compensation system In 1850 California became a state with a population of 92 597 residents At the onset of the Boynton Act in 1913 the population soared to 3 million and by 1990 accelerated to 29 million Today California boasts a population of 39 5 million The State of California and its employers pay the highest premiums in the nation and it is ludicrous to be near the bottom of the list in benefits that actually get to the injured worker This remains a fact that continues to tarnish California s workers compensation delivery system Did you know that it costs 53 cents to deliver a dollar s worth of benefits to its injured workers REFORM ACT ONE 1993 In the 1990s California had the second highest workers compensation cost in the nation Yet it was ranked 45th out of 46 states studied in temporary total disability TTD benefits paid For permanent disability PD benefits it ranked 39th In response to the above statistics the Legislature created Labor Code 4062 9 to stabilize the cost of a system believed to be out of control resulting in exorbitant amounts of dollars spent on litigation medical and medical legal costs Medicallegal reporting at that time cost the system 600 million a year and minimal dollars reached the injured worker The primary purposes of the reforms were to Reduce insurance costs by deregulating workers compensation insurance rates and eliminating the minimum rate law Decrease the cost of medical care by tightening the medical fee schedule and increasing the use of managed care for workers compensation cases Cut the cost of medical legal evaluations and reduce the number of evaluations Decrease overall compensation costs by requiring greater emphasis on workplace safety Increase penalties for workers compensation fraud Sound familiar The treating doctor s Presumption of Correctness seemed like a good idea as the doctor sees the injured worker on multiple occasions and should be able to assess the patient s condition better than doctors who see the injured worker on one occasion for a couple of hours if that much The Presumption of Correctness system was a great idea that didn t work but produced a fertile field for corruption and abuse By 2003 the workers compensation system in l l l l l 60 DOCTORS PERSPECTIVE California spent 8 2 billion in medical costs each year When treatment was in the hands of the employee and certain groups of service providers costs rose 11 percent each year That s an increase of 287 million each year Overall the treating doctor s presumption cost the system an extra 3 billion The calculation of treatment and impairment was entirely subjective as there was no utilization review or cost controls in place REFORM ACT TWO 2004 To combat the resulting outcomes SB 899 was implemented and utilization review was first used The AMA Guides were adopted the two year cap on TTD implemented and Vocational Rehabilitation was changed to the Supplemental Job Displacement Benefit and a reimbursement voucher in the amount of 6 000 REFORM ACT THREE 2013 SB 863 passed and became effective in 2013 independent medical review IMR removed medical treatment decisions for the workers compensation judge WCJ and a new lien statute of limitations was utilized REFORM ACT FOUR 2017 The recent passage of SB 1160 and AB 1244 has given the DIR power to exclude providers who abuse the system Has this really stopped the abuses Not really but it has slowed down the perpetrators This new Lien Stay system is being challenged in the federal courts The criminally charged perpetrators are not crying foul but are utilizing every protection available to allow them to continue to divert the dollars away from employers and injured workers The system continues to indict participants for fraud and capping violations as evidenced in news articles that flood the newspapers daily CURRENT REFORM STATUS AB 2046 requires more data sharing among government agencies involved in combating fraud and allows the Fraud Commission to use leftover funds from prior assessments Additionally a new workers compensation prescription drug formulary is in effect since January 2018 This is extremely important in a state where pharmaceuticals are 46 percent of the medical services sent to IMR in 2017 Finally several ongoing studies by the RAND Institute are focusing on how to improve the system CONCLUSION The system of compromise is but a century old The intent of the compromise was to benefit all California s injured workers and employers not line the pockets of abusers who fatten their bank accounts at the expense of the injured workers and employers who are responsible for making the State of California the fifth largest economy in the world The system is far from perfect Improvements based on continuous learning will be the basis of our collective effort to make the compromise work J EWC Magazine Taking the Occupational Medicine History of the Injured Worker By Max Lebow MD MPH FACEP FACPM President and Medical Director at Insight Practice Partners Inc Reliant Immediate Care Medical Group L ike any medical history the occupational medicine history is meant to guide the clinician to the proper diagnosis and treatment for the patient However it is set apart from the typical history in that several other goals must be achieved in the process Not only are the duties and responsibilities of the occupational primary treating physician often mandated by law gathering the proper historical information at the beginning of the case will lead to a timely resolution and rapid return to work for the injured worker help avoid an adversarial relationship between the employer and the employee and identify any red flags to assure the subjective complaints and description of the injury match the objective findings of the physical exam Finally healthy respectful skepticism is helpful in determining if the claimed injury or illness occurred out of and in the course of employment versus the result of off duty activities Note the specific words arising out of and in the www ewcconference com ewc magazine course of is the term often used to make the determination of on duty versus off duty injury Here we discuss some of the key requirements and nuances of obtaining an occupational medicine history in the urgent care setting GOALS OF OCCUPATIONAL HISTORY Establish the precise onset of symptoms Understand the patient s job duties Obtain detailed mechanism of injury Determine if the illness or injury is work related Determine if the case meets OSHA first aid requirements Determine work status full versus modified duty or temporary total disability TTD Determine treatment options Estimate time to Maximum Medical Improvement Identify any red flags l l l l l l l l l 61

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LEGISLATIVE able to reserve for its exposure easily The State benefited with the removal of families of injured workers from its social welfare system MATURATION PROCESS or WORK IN PROGRESS This system moved right along first as the Industrial Occupation Commission IOC then as the Industrial Accident Commission IAC and ultimately as the Department of Industrial Relations DIR As California grew in population so did the workers compensation system In 1850 California became a state with a population of 92 597 residents At the onset of the Boynton Act in 1913 the population soared to 3 million and by 1990 accelerated to 29 million Today California boasts a population of 39 5 million The State of California and its employers pay the highest premiums in the nation and it is ludicrous to be near the bottom of the list in benefits that actually get to the injured worker This remains a fact that continues to tarnish California s workers compensation delivery system Did you know that it costs 53 cents to deliver a dollar s worth of benefits to its injured workers REFORM ACT ONE 1993 In the 1990s California had the second highest workers compensation cost in the nation Yet it was ranked 45th out of 46 states studied in temporary total disability TTD benefits paid For permanent disability PD benefits it ranked 39th In response to the above statistics the Legislature created Labor Code 4062 9 to stabilize the cost of a system believed to be out of control resulting in exorbitant amounts of dollars spent on litigation medical and medical legal costs Medicallegal reporting at that time cost the system 600 million a year and minimal dollars reached the injured worker The primary purposes of the reforms were to Reduce insurance costs by deregulating workers compensation insurance rates and eliminating the minimum rate law Decrease the cost of medical care by tightening the medical fee schedule and increasing the use of managed care for workers compensation cases Cut the cost of medical legal evaluations and reduce the number of evaluations Decrease overall compensation costs by requiring greater emphasis on workplace safety Increase penalties for workers compensation fraud Sound familiar The treating doctor s Presumption of Correctness seemed like a good idea as the doctor sees the injured worker on multiple occasions and should be able to assess the patient s condition better than doctors who see the injured worker on one occasion for a couple of hours if that much The Presumption of Correctness system was a great idea that didn t work but produced a fertile field for corruption and abuse By 2003 the workers compensation system in l l l l l 60 DOCTORS PERSPECTIVE California spent 8 2 billion in medical costs each year When treatment was in the hands of the employee and certain groups of service providers costs rose 11 percent each year That s an increase of 287 million each year Overall the treating doctor s presumption cost the system an extra 3 billion The calculation of treatment and impairment was entirely subjective as there was no utilization review or cost controls in place REFORM ACT TWO 2004 To combat the resulting outcomes SB 899 was implemented and utilization review was first used The AMA Guides were adopted the two year cap on TTD implemented and Vocational Rehabilitation was changed to the Supplemental Job Displacement Benefit and a reimbursement voucher in the amount of 6 000 REFORM ACT THREE 2013 SB 863 passed and became effective in 2013 independent medical review IMR removed medical treatment decisions for the workers compensation judge WCJ and a new lien statute of limitations was utilized REFORM ACT FOUR 2017 The recent passage of SB 1160 and AB 1244 has given the DIR power to exclude providers who abuse the system Has this really stopped the abuses Not really but it has slowed down the perpetrators This new Lien Stay system is being challenged in the federal courts The criminally charged perpetrators are not crying foul but are utilizing every protection available to allow them to continue to divert the dollars away from employers and injured workers The system continues to indict participants for fraud and capping violations as evidenced in news articles that flood the newspapers daily CURRENT REFORM STATUS AB 2046 requires more data sharing among government agencies involved in combating fraud and allows the Fraud Commission to use leftover funds from prior assessments Additionally a new workers compensation prescription drug formulary is in effect since January 2018 This is extremely important in a state where pharmaceuticals are 46 percent of the medical services sent to IMR in 2017 Finally several ongoing studies by the RAND Institute are focusing on how to improve the system CONCLUSION The system of compromise is but a century old The intent of the compromise was to benefit all California s injured workers and employers not line the pockets of abusers who fatten their bank accounts at the expense of the injured workers and employers who are responsible for making the State of California the fifth largest economy in the world The system is far from perfect Improvements based on continuous learning will be the basis of our collective effort to make the compromise work J EWC Magazine Taking the Occupational Medicine History of the Injured Worker By Max Lebow MD MPH FACEP FACPM President and Medical Director at Insight Practice Partners Inc Reliant Immediate Care Medical Group L ike any medical history the occupational medicine history is meant to guide the clinician to the proper diagnosis and treatment for the patient However it is set apart from the typical history in that several other goals must be achieved in the process Not only are the duties and responsibilities of the occupational primary treating physician often mandated by law gathering the proper historical information at the beginning of the case will lead to a timely resolution and rapid return to work for the injured worker help avoid an adversarial relationship between the employer and the employee and identify any red flags to assure the subjective complaints and description of the injury match the objective findings of the physical exam Finally healthy respectful skepticism is helpful in determining if the claimed injury or illness occurred out of and in the course of employment versus the result of off duty activities Note the specific words arising out of and in the www ewcconference com ewc magazine course of is the term often used to make the determination of on duty versus off duty injury Here we discuss some of the key requirements and nuances of obtaining an occupational medicine history in the urgent care setting GOALS OF OCCUPATIONAL HISTORY Establish the precise onset of symptoms Understand the patient s job duties Obtain detailed mechanism of injury Determine if the illness or injury is work related Determine if the case meets OSHA first aid requirements Determine work status full versus modified duty or temporary total disability TTD Determine treatment options Estimate time to Maximum Medical Improvement Identify any red flags l l l l l l l l l 61

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DOCTORS PERSPECTIVE UNDERSTAND YOUR PATIENT S JOB DUTIES Injured employees often present with paperwork that identifies their job title What does that actually mean though Job titles can be ambiguous and often do not describe what the employee your patient actually does Questions such as the amount of time spent standing versus sitting lifting requirements of the job including how much and how often and description of any particularly awkward motions such as cleaning behind sinks help define the worker s actual duties This information is obtained in three different ways First ask specific questions during your history For example if someone is claiming a knee injury it is essential to know whether most of their time is spent sitting or standing and if they are carrying heavy loads Second talk to your client company The examining physician should speak to the company contact to obtain job duty information or better yet obtain a copy of the defined job duties which will generally describe the percentage of time spent sitting versus standing the usual loads the employee is expected to lift during the day and other valuable information about the physical demands of the job Understanding a patient s job duties can illuminate how the injury occurred and help the provider formulate a treatment plan to optimize recovery and return to full duty as quickly as possible Finally scheduling a visit to the job site provides invaluable information about the work environment and insights into the daily activities of the workers It s also an opportunity to meet the supervisors safety officers and those you will communicate with in the future to facilitate better relations Especially noteworthy is the determination of whether the job is safety sensitive Does the employee drive operate machinery or work around toxic materials The answers to these questions not only help reveal the mechanisms of some injuries but also help the occupational medicine provider create a modified duty program that can keep the injured employee at work and active during the recovery period All this information can illuminate how the injury or illness occurred and help the occupational medicine provider formulate a treatment plan to optimize recovery and return to full duty at preinjury levels as quickly and safely as possible LENGTH OF TIME WITH CURRENT EMPLOYER AND AT CURRENT POSITION The length of time the patient has been on the job can be a predictive indicator of how quickly recovery will progress For example an employee claiming an overuse injury in www ewcconference com ewc magazine the first few weeks of employment represents the need for strengthening rather than treatment for repetitive strain injury An injury shortly after hiring may also be a red flag for possible workers compensation fraud The length of time a worker has been performing a task may also offer more subtle clues that the root of the complaint may not be physical For example long term employees who have had a recent change in their job function or a shift change may be dissatisfied with the move and more likely to claim a work related injury Only close attention to the details of the mechanism of injury and the subjective complaints and objective findings can make these critical differentiations Full or part time employment One factor that may be overlooked by the occupational medicine provider is that many people now may hold two or three part time jobs simultaneously This is a common reason for delay in recovery from musculoskeletal injuries Patients who have jobs outside of the one related to their treatment may be unable to rest adequately between shifts have frequent missed appointments or missed physical therapy treatments or be nonadherent with self treatments such as stretching and home exercise HISTORY OF THE CURRENT ILLNESS OR INJURY Understanding precisely when the injury began is an integral part of the occupational medicine history Gradual versus sudden onset can help differentiate repetitive stress injury from acute musculoskeletal strain and help predict the timeline and outcome of the case Delay in reporting may represent a red flag for deception or secondary gain associated with the injury Most serious injuries are reported immediately and treatment can begin quickly If there is no apparent reason for a delay in the injured worker presenting to the clinic probe for a reasonable explanation One method of probing for issues such as workplace dissatisfaction is to ask What is it like to work for company ABC An open ended question is less likely to elicit a defensive response and more likely to give a frank answer Is this injury new or a recurrence A good description of any previous injuries especially in the last 36 months can help differentiate a new injury from a recurrence of an old injury and therefore help direct treatment decisions The differentiation can be difficult but a reasonable decision can be made with patient questioning and a review of thorough records OBTAIN A DETAILED MECHANISM OF INJURY For an urgent care patient it is adequate to document that the patient experienced back pain after lifting or hurt ankle climbing steps In a typical urgent care setting there is little riding on where or when an injury occurred By contrast the workplace injury should be described in greater detail to assure that the mechanism can reasonably explain the patient s injury claim For example understanding the approximate weight of an object can help determine whether this injury occurred during routine job activities was an unusual event or occurred 63

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DOCTORS PERSPECTIVE UNDERSTAND YOUR PATIENT S JOB DUTIES Injured employees often present with paperwork that identifies their job title What does that actually mean though Job titles can be ambiguous and often do not describe what the employee your patient actually does Questions such as the amount of time spent standing versus sitting lifting requirements of the job including how much and how often and description of any particularly awkward motions such as cleaning behind sinks help define the worker s actual duties This information is obtained in three different ways First ask specific questions during your history For example if someone is claiming a knee injury it is essential to know whether most of their time is spent sitting or standing and if they are carrying heavy loads Second talk to your client company The examining physician should speak to the company contact to obtain job duty information or better yet obtain a copy of the defined job duties which will generally describe the percentage of time spent sitting versus standing the usual loads the employee is expected to lift during the day and other valuable information about the physical demands of the job Understanding a patient s job duties can illuminate how the injury occurred and help the provider formulate a treatment plan to optimize recovery and return to full duty as quickly as possible Finally scheduling a visit to the job site provides invaluable information about the work environment and insights into the daily activities of the workers It s also an opportunity to meet the supervisors safety officers and those you will communicate with in the future to facilitate better relations Especially noteworthy is the determination of whether the job is safety sensitive Does the employee drive operate machinery or work around toxic materials The answers to these questions not only help reveal the mechanisms of some injuries but also help the occupational medicine provider create a modified duty program that can keep the injured employee at work and active during the recovery period All this information can illuminate how the injury or illness occurred and help the occupational medicine provider formulate a treatment plan to optimize recovery and return to full duty at preinjury levels as quickly and safely as possible LENGTH OF TIME WITH CURRENT EMPLOYER AND AT CURRENT POSITION The length of time the patient has been on the job can be a predictive indicator of how quickly recovery will progress For example an employee claiming an overuse injury in www ewcconference com ewc magazine the first few weeks of employment represents the need for strengthening rather than treatment for repetitive strain injury An injury shortly after hiring may also be a red flag for possible workers compensation fraud The length of time a worker has been performing a task may also offer more subtle clues that the root of the complaint may not be physical For example long term employees who have had a recent change in their job function or a shift change may be dissatisfied with the move and more likely to claim a work related injury Only close attention to the details of the mechanism of injury and the subjective complaints and objective findings can make these critical differentiations Full or part time employment One factor that may be overlooked by the occupational medicine provider is that many people now may hold two or three part time jobs simultaneously This is a common reason for delay in recovery from musculoskeletal injuries Patients who have jobs outside of the one related to their treatment may be unable to rest adequately between shifts have frequent missed appointments or missed physical therapy treatments or be nonadherent with self treatments such as stretching and home exercise HISTORY OF THE CURRENT ILLNESS OR INJURY Understanding precisely when the injury began is an integral part of the occupational medicine history Gradual versus sudden onset can help differentiate repetitive stress injury from acute musculoskeletal strain and help predict the timeline and outcome of the case Delay in reporting may represent a red flag for deception or secondary gain associated with the injury Most serious injuries are reported immediately and treatment can begin quickly If there is no apparent reason for a delay in the injured worker presenting to the clinic probe for a reasonable explanation One method of probing for issues such as workplace dissatisfaction is to ask What is it like to work for company ABC An open ended question is less likely to elicit a defensive response and more likely to give a frank answer Is this injury new or a recurrence A good description of any previous injuries especially in the last 36 months can help differentiate a new injury from a recurrence of an old injury and therefore help direct treatment decisions The differentiation can be difficult but a reasonable decision can be made with patient questioning and a review of thorough records OBTAIN A DETAILED MECHANISM OF INJURY For an urgent care patient it is adequate to document that the patient experienced back pain after lifting or hurt ankle climbing steps In a typical urgent care setting there is little riding on where or when an injury occurred By contrast the workplace injury should be described in greater detail to assure that the mechanism can reasonably explain the patient s injury claim For example understanding the approximate weight of an object can help determine whether this injury occurred during routine job activities was an unusual event or occurred 63

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DOCTORS PERSPECTIVE in an activity unrelated to the job This information can also help determine work modifications at discharge DOCUMENT A THOROUGH LIST OF SUBJECTIVE COMPLAINTS In urgent care or emergency medicine the provider will perform a clinical triaging to distinguish serious injuries from minor injuries that may not need immediate attention By contrast in occupational medicine all subjective complaints and injured body parts and locations should be recorded One way to accomplish this and help organize your eventual treatment plan is to ask the patient to list areas of pain from worst to least troublesome It is important to ask this question again at every subsequent visit to help monitor recovery or identify more persistent areas of pain that may need special attention Also a great deal of inconsistency may be a red flag to identify exaggeration of the injury Finally when this process is completed the occupational medicine provider should document No other injuries present This statement is intended to assure no non workrelated illness or injuries are later injected into the case PAST OCCUPATIONAL HISTORY Similar to a past medical history the goal of the past occupational history is to identify previous injuries both work related and non work related that may interfere with the patient s timely recovery DOCTORS PERSPECTIVE Akin to this consider whether the patient is being treated for any other work injury currently has any disabilities caused by a previous work injury or has any current restrictions or accommodations in the workplace An injured worker could have multiple workers compensation cases running at the same time Multiple previous or concurrent workplace claims may be a clue the patient is trying to manipulate the work comp system J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Once the provider becomes familiar with the process and understands the rationale of the occupational medicine history it takes only a few minutes to get the relevant facts l Because the occupational medicine physician has many administrative and medical decisions to make having all the information together at the beginning of the case will facilitate correct diagnosis and proper treatment of workrelated injuries while also assuring that the injured worker and the employer are both treated fairly l The QME Appointment Dissected What you really need to know By Paul Marsh DC QME Arrowhead Evaluations Inc W hat should the qualified medical examiner QME be expected to do What is needed from the report and the exam itself And what can the claims examiner get out of this report to better serve their insured As a chiropractor I m going to break these questions down and tell you what you need to know Whether you choose a chiropractor or a medical specialist we all have the same goals First we must establish trust with the claimant We need to get the claimant to open up and share information We must collect the facts without judgment and remain neutral to all parties After this we must issue a complete report with substantial evidence to all parties within 30 days Substantial evidence is defined as evidence of a medical opinion which must be predicated on reasonable medical probability It is not substantial evidence if it is based upon facts no longer germane to the case inadequate medical history or examinations incorrect legal theories surmise speculation conjecture or guess Lastly it is not substantial evidence unless it sets forth the reasoning behind the physician s opinion 64 EWC Magazine www ewcconference com ewc magazine This means the physician has to explain how and why they came up with their conclusions Remember it s about accuracy not fairness to all parties The physicians should cite figures tables and pages supporting their medical opinion To do this the QME will summarize everything in a timeline of events called the history This is helpful when determining causation or AOE COE and which body parts are from a direct result of the injury or may be compensatory in nature Zemek v WCAB 1968 33 Cal comp cases 358 a medical report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises Hegglin v WCAB 1971 36 Cal comp cases 93 Medical reports and opinions are not substantial evidence if they are based on inadequate medical histories After the history the QME should then dig deeper into the claimant s past to summarize for all parties a complete review of systems and comorbidities prior accidents such 65

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DOCTORS PERSPECTIVE in an activity unrelated to the job This information can also help determine work modifications at discharge DOCUMENT A THOROUGH LIST OF SUBJECTIVE COMPLAINTS In urgent care or emergency medicine the provider will perform a clinical triaging to distinguish serious injuries from minor injuries that may not need immediate attention By contrast in occupational medicine all subjective complaints and injured body parts and locations should be recorded One way to accomplish this and help organize your eventual treatment plan is to ask the patient to list areas of pain from worst to least troublesome It is important to ask this question again at every subsequent visit to help monitor recovery or identify more persistent areas of pain that may need special attention Also a great deal of inconsistency may be a red flag to identify exaggeration of the injury Finally when this process is completed the occupational medicine provider should document No other injuries present This statement is intended to assure no non workrelated illness or injuries are later injected into the case PAST OCCUPATIONAL HISTORY Similar to a past medical history the goal of the past occupational history is to identify previous injuries both work related and non work related that may interfere with the patient s timely recovery DOCTORS PERSPECTIVE Akin to this consider whether the patient is being treated for any other work injury currently has any disabilities caused by a previous work injury or has any current restrictions or accommodations in the workplace An injured worker could have multiple workers compensation cases running at the same time Multiple previous or concurrent workplace claims may be a clue the patient is trying to manipulate the work comp system J TIPS AND TAKEAWAYS WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET Once the provider becomes familiar with the process and understands the rationale of the occupational medicine history it takes only a few minutes to get the relevant facts l Because the occupational medicine physician has many administrative and medical decisions to make having all the information together at the beginning of the case will facilitate correct diagnosis and proper treatment of workrelated injuries while also assuring that the injured worker and the employer are both treated fairly l The QME Appointment Dissected What you really need to know By Paul Marsh DC QME Arrowhead Evaluations Inc W hat should the qualified medical examiner QME be expected to do What is needed from the report and the exam itself And what can the claims examiner get out of this report to better serve their insured As a chiropractor I m going to break these questions down and tell you what you need to know Whether you choose a chiropractor or a medical specialist we all have the same goals First we must establish trust with the claimant We need to get the claimant to open up and share information We must collect the facts without judgment and remain neutral to all parties After this we must issue a complete report with substantial evidence to all parties within 30 days Substantial evidence is defined as evidence of a medical opinion which must be predicated on reasonable medical probability It is not substantial evidence if it is based upon facts no longer germane to the case inadequate medical history or examinations incorrect legal theories surmise speculation conjecture or guess Lastly it is not substantial evidence unless it sets forth the reasoning behind the physician s opinion 64 EWC Magazine www ewcconference com ewc magazine This means the physician has to explain how and why they came up with their conclusions Remember it s about accuracy not fairness to all parties The physicians should cite figures tables and pages supporting their medical opinion To do this the QME will summarize everything in a timeline of events called the history This is helpful when determining causation or AOE COE and which body parts are from a direct result of the injury or may be compensatory in nature Zemek v WCAB 1968 33 Cal comp cases 358 a medical report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises Hegglin v WCAB 1971 36 Cal comp cases 93 Medical reports and opinions are not substantial evidence if they are based on inadequate medical histories After the history the QME should then dig deeper into the claimant s past to summarize for all parties a complete review of systems and comorbidities prior accidents such 65

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DOCTORS PERSPECTIVE as motor vehicle accidents slip and fall etc hospitalizations surgeries and medications Here is where the trained and experienced QMEs really get a chance to shine Trust needs to be established questions often have to be worded differently and asked multiple times in different fashions It s not a substitute for the above but a physician may incorporate questionnaires These are sometimes helpful tools and can guide the clinician to paint a bigger picture of the claimant s character They can also help to identify symptom magnification or if Waddell s signs malingering are present Next comes the examination Vitals are important Did you know that taking blood pressure is a good gauge of whether the claimant is genuinely in pain With increased pain comes increased blood pressure Mood affect and orientation help us to understand if there is a psychological overlay or if the claimant is possibly under the influence of controlled substances Peripheral vascular inspection helps to show if the claimant is healing nicely after their surgery or if pre existing vascular disorders such as varicose veins or complex regional pain syndromes i e RSD are present A good clinician will also note how long the claimant was sitting or standing prior to changing position due to increased pain When it comes time to do orthopedic and neurologic testing the skilled clinician will note the findings and what they indicate For example straight leg raising SLR was positive on the right at 85 with pain radiating down the leg in a dermatomal fashion L5 indicative of L5 radiculopathy on the right A poor example would be SLR was on the right After the exam you should see a thorough record review section summarizing the records in a bulleted format with a summary to follow To render the diagnosis a skilled QME will list the initial or working diagnosis along with the final diagnosis whether the injuries appear industrial or not and let all parties know if each individual condition was resolved or if residuals remain To address causation AOE COE a skilled QME will have a brief paragraph on how the medical evidence presented before him has led to his conclusions Keep in mind of course that a presumption exists for the safety of employees the defendant must prove that no reasonable link exists not merely state that there is no evidence To address apportionment the QME must take into consideration SB 899 and labor code section 4663 changes l l l l l Apportionment is based upon causation of disability The physician shall address the issue of causation of permanent disability Apportionment must take into account the findings of the percentage of disability caused by the industrial injury and the percentage of disability caused by other factors both before and subsequent to the industrial injury The medical opinion must disclose familiarity with the concepts of apportionment describe in detail the nature of the disability and set forth the basis for the opinion The medical opinion must be framed in terms of reasonable medical probability and cannot be speculative It must be based on facts and an adequate examination and history 66 CARL S CORNER Escobedo Case 2005 Analysis of causation of disability for apportionment purposes is not the same as analysis of causal factors of the injury itself Each party bears their burden of proof The Applicant must show the percentage of disability due to their industrial injury The Defense must show the percentage of disability due to other factors Don t forget The physician may include apportionment to pathology asymptomatic pre existing conditions etc When it comes time to address impairment WPI the physician should not comment on the old schedule The physician must show their work and how they came to their conclusions including citing page numbers sections and charts If there is to be an add on for pain the QME can add up to 3 percent for pain They cannot give the add on unless there is some disability The 3 percent add on is a one time use and cannot be added on for each body part Lastly the QME must explain why they came to this conclusion A good example is how it affects activities of daily living ADL and how it is different than what is described in the Guides Beware the rabbit hole Almaraz Guzman In situations where impairment ratings are not provided the Guides permit the physicians to use clinical judgment comparing measurable impairment results from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living Guides section 1 5 How does Almaraz Guzman AG work AG is rating by analogy when the standard ratings simply do not work AG does not apply if the injured worker s presentation is similar to or described in the Guides AG is a last resort and as stated before The physician must explain how and why they came to this conclusion Last comes the section on future medical care A quality QME report will include in detail the following type of physician and care needed therapy type and frequency number of episodes expected per year medications oral injections etc need for diagnostic testing and medical probability for surgery in the near future J Carl s Corner Negotiation Tips for Workers Compensation In part one of a three part series Carl shares negotiation tips for the claims professional Asking the right questions in the right way can help claims adjusters win more favorable settlements Sheldon How about 95 000 then Amy Still too high When negotiating a workers compensation claim with an injured worker sometimes they will contend that their settlement figure isn t high enough It s important to discuss with the worker why they feel that way without the dialogue leading to an unreasonable demand Staying in your conversation helps the injured worker remain realistic Successful negotiation hinges on how you direct the conversation Did you notice that because Amy asked Sheldon why he wanted 100 000 the entire conversation centered around that figure Moreover every word that comes out of Sheldon s mouth is convincing him that 100 000 is deserved And worse now that Amy has allowed Sheldon to talk in terms of 100 000 she has to prove him wrong to get him to reduce his valuation However you never have to prove anyone wrong you only have to prove yourself right But proving Sheldon wrong is exactly what Amy has to do because she is not in her conversation The question isn t Why do you want 100 000 The question is Why isn t 39 000 enough If Amy asks the right question she acknowledges what Sheldon says to prove herself right instead of having to prove Sheldon wrong CLAIMS NEGOTIATIONS WITH INJURED WORKERS IS A MATTER OF TIME The more time you spend talking about your facts and figures the closer settlement will be to your figure The more time you talk about another person s facts and figures the closer settlement will be to their figure Sometimes adjusters ask the right questions but in the wrong way Here Amy the claims adjuster is trying to settle with Sheldon an injured worker Amy Sheldon we have evaluated your case Based on the disability rating your slightly lower rate of pay in your new job and the possibility of future treatments we ve put a value of 39 322 11 on this case How does that sound Sheldon Well I believe that my claim is worth at least 100 000 TIPS AND TAKEAWAYS Amy Can you tell me why you believe it is worth 100 000 WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET The QME report must be based upon substantial evidence a medical opinion which must be predicated on reasonable medical probability l The physician has to explain how and why they came up with their conclusions Remember it s about accuracy not fairness to all parties The physicians should cite figures tables and pages supporting their medical opinion l The medical opinion must be framed in terms of reasonable medical probability and cannot be speculative It must be based on facts and an adequate examination and history l EWC Magazine By Carl Van Sheldon I mean none of this was my fault I might have to have surgery later I can t move my hand like I used to I had to go to the doctor tons of times It was pretty traumatic for me Besides the guy in the warehouse got 50 000 and he only had a stubbed toe I think 100 000 seems fair Amy 100 000 is too much I m sure it wasn t traumatic You ve healed pretty well As for being off work we re paying you for that and you don t even pay taxes on it As far as the guy in the warehouse goes nobody would pay 50 000 for a stubbed toe www ewcconference com ewc magazine Amy Sheldon we have evaluated your case Based on the disability rating your slightly lower rate of pay in your new job and the possibility of future treatments we ve put a value of 39 322 11 on this case How does that sound Sheldon I really believe that my claim is worth 100 000 Amy Can you tell me why you believe 39 000 does not seem fair Sheldon It s got to be worth more than 39 000 I mean none of this was my fault I might have to have surgery later I can t move my hand like I used to I had to go to the doctor tons of times It was pretty traumatic for me Besides the guy in the warehouse got 50 000 and only had a stubbed toe I think 100 000 seems fair Amy I appreciate what you just said If you believe your case is worth more than 39 000 because of what the guy in the warehouse got I can understand that But since neither of us knows anything about that claim would you agree that it makes sense to focus on your injuries your medical treatment and how this affected you and not get distracted by the guy in the warehouse Sheldon I guess so 67

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DOCTORS PERSPECTIVE as motor vehicle accidents slip and fall etc hospitalizations surgeries and medications Here is where the trained and experienced QMEs really get a chance to shine Trust needs to be established questions often have to be worded differently and asked multiple times in different fashions It s not a substitute for the above but a physician may incorporate questionnaires These are sometimes helpful tools and can guide the clinician to paint a bigger picture of the claimant s character They can also help to identify symptom magnification or if Waddell s signs malingering are present Next comes the examination Vitals are important Did you know that taking blood pressure is a good gauge of whether the claimant is genuinely in pain With increased pain comes increased blood pressure Mood affect and orientation help us to understand if there is a psychological overlay or if the claimant is possibly under the influence of controlled substances Peripheral vascular inspection helps to show if the claimant is healing nicely after their surgery or if pre existing vascular disorders such as varicose veins or complex regional pain syndromes i e RSD are present A good clinician will also note how long the claimant was sitting or standing prior to changing position due to increased pain When it comes time to do orthopedic and neurologic testing the skilled clinician will note the findings and what they indicate For example straight leg raising SLR was positive on the right at 85 with pain radiating down the leg in a dermatomal fashion L5 indicative of L5 radiculopathy on the right A poor example would be SLR was on the right After the exam you should see a thorough record review section summarizing the records in a bulleted format with a summary to follow To render the diagnosis a skilled QME will list the initial or working diagnosis along with the final diagnosis whether the injuries appear industrial or not and let all parties know if each individual condition was resolved or if residuals remain To address causation AOE COE a skilled QME will have a brief paragraph on how the medical evidence presented before him has led to his conclusions Keep in mind of course that a presumption exists for the safety of employees the defendant must prove that no reasonable link exists not merely state that there is no evidence To address apportionment the QME must take into consideration SB 899 and labor code section 4663 changes l l l l l Apportionment is based upon causation of disability The physician shall address the issue of causation of permanent disability Apportionment must take into account the findings of the percentage of disability caused by the industrial injury and the percentage of disability caused by other factors both before and subsequent to the industrial injury The medical opinion must disclose familiarity with the concepts of apportionment describe in detail the nature of the disability and set forth the basis for the opinion The medical opinion must be framed in terms of reasonable medical probability and cannot be speculative It must be based on facts and an adequate examination and history 66 CARL S CORNER Escobedo Case 2005 Analysis of causation of disability for apportionment purposes is not the same as analysis of causal factors of the injury itself Each party bears their burden of proof The Applicant must show the percentage of disability due to their industrial injury The Defense must show the percentage of disability due to other factors Don t forget The physician may include apportionment to pathology asymptomatic pre existing conditions etc When it comes time to address impairment WPI the physician should not comment on the old schedule The physician must show their work and how they came to their conclusions including citing page numbers sections and charts If there is to be an add on for pain the QME can add up to 3 percent for pain They cannot give the add on unless there is some disability The 3 percent add on is a one time use and cannot be added on for each body part Lastly the QME must explain why they came to this conclusion A good example is how it affects activities of daily living ADL and how it is different than what is described in the Guides Beware the rabbit hole Almaraz Guzman In situations where impairment ratings are not provided the Guides permit the physicians to use clinical judgment comparing measurable impairment results from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living Guides section 1 5 How does Almaraz Guzman AG work AG is rating by analogy when the standard ratings simply do not work AG does not apply if the injured worker s presentation is similar to or described in the Guides AG is a last resort and as stated before The physician must explain how and why they came to this conclusion Last comes the section on future medical care A quality QME report will include in detail the following type of physician and care needed therapy type and frequency number of episodes expected per year medications oral injections etc need for diagnostic testing and medical probability for surgery in the near future J Carl s Corner Negotiation Tips for Workers Compensation In part one of a three part series Carl shares negotiation tips for the claims professional Asking the right questions in the right way can help claims adjusters win more favorable settlements Sheldon How about 95 000 then Amy Still too high When negotiating a workers compensation claim with an injured worker sometimes they will contend that their settlement figure isn t high enough It s important to discuss with the worker why they feel that way without the dialogue leading to an unreasonable demand Staying in your conversation helps the injured worker remain realistic Successful negotiation hinges on how you direct the conversation Did you notice that because Amy asked Sheldon why he wanted 100 000 the entire conversation centered around that figure Moreover every word that comes out of Sheldon s mouth is convincing him that 100 000 is deserved And worse now that Amy has allowed Sheldon to talk in terms of 100 000 she has to prove him wrong to get him to reduce his valuation However you never have to prove anyone wrong you only have to prove yourself right But proving Sheldon wrong is exactly what Amy has to do because she is not in her conversation The question isn t Why do you want 100 000 The question is Why isn t 39 000 enough If Amy asks the right question she acknowledges what Sheldon says to prove herself right instead of having to prove Sheldon wrong CLAIMS NEGOTIATIONS WITH INJURED WORKERS IS A MATTER OF TIME The more time you spend talking about your facts and figures the closer settlement will be to your figure The more time you talk about another person s facts and figures the closer settlement will be to their figure Sometimes adjusters ask the right questions but in the wrong way Here Amy the claims adjuster is trying to settle with Sheldon an injured worker Amy Sheldon we have evaluated your case Based on the disability rating your slightly lower rate of pay in your new job and the possibility of future treatments we ve put a value of 39 322 11 on this case How does that sound Sheldon Well I believe that my claim is worth at least 100 000 TIPS AND TAKEAWAYS Amy Can you tell me why you believe it is worth 100 000 WHAT TO CONSIDER RED FLAGS STEPS TO TAKE DON T FORGET The QME report must be based upon substantial evidence a medical opinion which must be predicated on reasonable medical probability l The physician has to explain how and why they came up with their conclusions Remember it s about accuracy not fairness to all parties The physicians should cite figures tables and pages supporting their medical opinion l The medical opinion must be framed in terms of reasonable medical probability and cannot be speculative It must be based on facts and an adequate examination and history l EWC Magazine By Carl Van Sheldon I mean none of this was my fault I might have to have surgery later I can t move my hand like I used to I had to go to the doctor tons of times It was pretty traumatic for me Besides the guy in the warehouse got 50 000 and he only had a stubbed toe I think 100 000 seems fair Amy 100 000 is too much I m sure it wasn t traumatic You ve healed pretty well As for being off work we re paying you for that and you don t even pay taxes on it As far as the guy in the warehouse goes nobody would pay 50 000 for a stubbed toe www ewcconference com ewc magazine Amy Sheldon we have evaluated your case Based on the disability rating your slightly lower rate of pay in your new job and the possibility of future treatments we ve put a value of 39 322 11 on this case How does that sound Sheldon I really believe that my claim is worth 100 000 Amy Can you tell me why you believe 39 000 does not seem fair Sheldon It s got to be worth more than 39 000 I mean none of this was my fault I might have to have surgery later I can t move my hand like I used to I had to go to the doctor tons of times It was pretty traumatic for me Besides the guy in the warehouse got 50 000 and only had a stubbed toe I think 100 000 seems fair Amy I appreciate what you just said If you believe your case is worth more than 39 000 because of what the guy in the warehouse got I can understand that But since neither of us knows anything about that claim would you agree that it makes sense to focus on your injuries your medical treatment and how this affected you and not get distracted by the guy in the warehouse Sheldon I guess so 67

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CARL S CORNER Amy As I said I appreciate what you just said And you re right this injury was not your fault I realize this was difficult for you I recognize you can t move your hand like you used to I certainly agree that you make less money now and that there might be some future treatment needed Those were all factors that make this case worth 39 000 So 39 322 11 does seem to be accurate Sheldon No 39 000 is not going to cut it How much can you come up instead of the adjuster s evaluation Here is a typical conversation between attorney Mark Steely and adjuster Dan Dan Mr Steely this is Dan from FM Insurance Company I m calling to discuss settlement of your client Mr Dupree Mr Steely Great did you get my demand package for 100 000 Dan Yes I got it But there is no way this is worth 100 000 Amy Okay I can alter the evaluation a little if we can justify why 39 000 is not right In this conversation Amy was able to get Sheldon to stop talking about why he wants 100 000 and start talking about why he wants more than 39 000 That s exactly where Amy wants this conversation to go It s okay that Sheldon wants more than 39 000 Amy has more than 39 000 What she doesn t have is 100 000 In just one conversation Amy changed Sheldon s focus That s a very powerful skill Amy was able to get Sheldon into her conversation Will it work 100 percent of the time No nothing does But it works often You are always better off discussing settlement in terms of your figure rather than theirs CLAIMS NEGOTIATIONS WITH ATTORNEYS IS A MATTER OF TIME Claims adjusters are also on the losing end when the conversation centers around the attorney s demand Mr Steely Why not Give me one reason Dan I ll give you several Dan then explains why the claim isn t worth 100 000 They will go back and forth and Mr Steely might come down a little After 45 minutes maybe Dan will mention his 20 000 figure By the time they have finished talking about 100 000 for 45 minutes that 20 000 is going to seem like a paltry figure even to Dan Even with attorneys negotiation is a matter of time Stop talking about demands and start talking about the value of the claim You have reviewed the case evaluated the information and done your research Talk about your figure not theirs Let s give Dan another try after teaching him the value of staying in his conversation Dan Mr Steely this is Dan from FM Insurance Company I m calling to discuss settlement of your client Mr Dupree Mr Steely Great did you get my demand package for 100 000 Dan Yes but I d rather talk about the value of the claim Based on the information you provided the disability rating and the favorable report from the doctor we have evaluated this case at 20 321 33 I would like to extend that amount to your client now Mr Steely This isn t going to settle for 20 000 My client will never take it Dan Why doesn t 20 000 seem fair Dan isn t going to settle this case for 20 000 But that s okay At least he isn t talking about 100 000 for the next 45 minutes The longer he can get Mr Steely to talk about wanting more than 20 000 the more that the demand of 100 000 is going to seem unreasonable to both of them J Carl is President and CEO of International Insurance Institute an international training company Mr Van is an instructor author and conference speaker He is the dean of the School of Performance produces an educational magazine and conference and owns an Executive Management Academy For fun he writes songs that he performs with the Awesome Adjuster Band He can be reached at carlvan insuranceinstitute com 68 EWC Magazine

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CARL S CORNER Amy As I said I appreciate what you just said And you re right this injury was not your fault I realize this was difficult for you I recognize you can t move your hand like you used to I certainly agree that you make less money now and that there might be some future treatment needed Those were all factors that make this case worth 39 000 So 39 322 11 does seem to be accurate Sheldon No 39 000 is not going to cut it How much can you come up instead of the adjuster s evaluation Here is a typical conversation between attorney Mark Steely and adjuster Dan Dan Mr Steely this is Dan from FM Insurance Company I m calling to discuss settlement of your client Mr Dupree Mr Steely Great did you get my demand package for 100 000 Dan Yes I got it But there is no way this is worth 100 000 Amy Okay I can alter the evaluation a little if we can justify why 39 000 is not right In this conversation Amy was able to get Sheldon to stop talking about why he wants 100 000 and start talking about why he wants more than 39 000 That s exactly where Amy wants this conversation to go It s okay that Sheldon wants more than 39 000 Amy has more than 39 000 What she doesn t have is 100 000 In just one conversation Amy changed Sheldon s focus That s a very powerful skill Amy was able to get Sheldon into her conversation Will it work 100 percent of the time No nothing does But it works often You are always better off discussing settlement in terms of your figure rather than theirs CLAIMS NEGOTIATIONS WITH ATTORNEYS IS A MATTER OF TIME Claims adjusters are also on the losing end when the conversation centers around the attorney s demand Mr Steely Why not Give me one reason Dan I ll give you several Dan then explains why the claim isn t worth 100 000 They will go back and forth and Mr Steely might come down a little After 45 minutes maybe Dan will mention his 20 000 figure By the time they have finished talking about 100 000 for 45 minutes that 20 000 is going to seem like a paltry figure even to Dan Even with attorneys negotiation is a matter of time Stop talking about demands and start talking about the value of the claim You have reviewed the case evaluated the information and done your research Talk about your figure not theirs Let s give Dan another try after teaching him the value of staying in his conversation Dan Mr Steely this is Dan from FM Insurance Company I m calling to discuss settlement of your client Mr Dupree Mr Steely Great did you get my demand package for 100 000 Dan Yes but I d rather talk about the value of the claim Based on the information you provided the disability rating and the favorable report from the doctor we have evaluated this case at 20 321 33 I would like to extend that amount to your client now Mr Steely This isn t going to settle for 20 000 My client will never take it Dan Why doesn t 20 000 seem fair Dan isn t going to settle this case for 20 000 But that s okay At least he isn t talking about 100 000 for the next 45 minutes The longer he can get Mr Steely to talk about wanting more than 20 000 the more that the demand of 100 000 is going to seem unreasonable to both of them J Carl is President and CEO of International Insurance Institute an international training company Mr Van is an instructor author and conference speaker He is the dean of the School of Performance produces an educational magazine and conference and owns an Executive Management Academy For fun he writes songs that he performs with the Awesome Adjuster Band He can be reached at carlvan insuranceinstitute com 68 EWC Magazine

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