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In every state, two investigative forms have an enormous impact on helping employers save money and win cases in workers’ compensation: first, a detailed Employee Accident Form filled out entirely by the injured employee and signed by the employee, and second, a detailed Supervisor’s Report Form. This practitioner has tailored both forms for the use of firm clients. I have written extensively in the past about the enormous value of an effective Employee Accident Form, and this blog will explore why a Supervisor’s Report Form also helps win cases and reduces workers’ compensation costs. Clients who use both forms have enhanced their chances of prevailing geometrically.
Many employers traditionally have a combined one-page form for the supervisor to fill out one section and for the employee to fill out another section. Sometimes the supervisor writes what the employee tells him or her, and then the employee only signs the form. This is not effective in court because the employee can reject what the supervisor wrote as inaccurate. It is always better for the employee to complete the Employee Report in his or her own handwriting. It is also hard to tell if the supervisor is writing what he or she thinks or what he or she was told. The abbreviated Supervisor’s Form will ask “How did the accident happen?” and the supervisor may write: “Employee slipped on ice.” Much later it may become clear to defense counsel that the supervisor really did not think this accident ever happened. He wrote just what the employee told him, but the form had no place for the supervisor to raise doubts. So cases get accepted, bills get paid, and surgery ensues when all of this should have been denied. In short, these abbreviated forms are like an appetizer to an entrée. You get much more out of two separate and detailed forms filled out as close as possible to the time of the incident.
So what makes an effective Supervisor’s Report Form? To ask it another way, what information should an employer strive to obtain in a supervisor’s form that will help prepare the defense of a workers’ compensation claim and often help win the claim? In this practitioner’s view, these are the essential elements in a powerful Supervisor’s Report Form:
§ Information that would determine if there is a notice defense or late reporting issue;
§ Detailed information on the time, date and mechanism of injury;
§ A list of witnesses to the incident, if any;
§ Detailed information on what others saw or were told by the employee about the incident or accident;
§ Specific information about the employee’s job duties generally and on the date of the incident;
§ Information on second jobs or other physical activities engaged in by the employee in the years prior to the incident or accident;
§ Information on motor vehicle accidents, home injuries or sports injuries that the employee was involved in during the past few years;
§ Information on whether the employee was offered or declined medical attention.
All of this information – and more — can be easily captured within two pages, and this approach can be used in any state. But in states like New Jersey, where there are no depositions or interrogatories permitted in traumatic claims, a comprehensive Supervisor’s Report Form is imperative! This form and the Employee Accident Form will often be the only useful discovery that employer will ever get in many cases. For employers with a high volume of comp claims, using these two forms will consistently lead to success because patterns develop, and supervisors become more adept at understanding the workers’ compensation process. The carrier, TPA, self-insured employer and defense counsel will be able to make intelligent decisions on whether to deny the claim or accept it, and if denied, how to win the case and not pay for unrelated surgery, lost time and permanency benefits.
There are no reliable statistics on how many comp claims involve some kind of legal issue as opposed to clearly witnessed accidents where there really are no issues other than the extent of permanency. This practitioner believes that perhaps fifty percent to two thirds of claims are unwitnessed or are questionable because the injured employee was known by the employer to have the health condition prior to the accident, or the mechanism of injury simply makes no sense. These are the kinds of claims that bedevil employers and can wreck budgets and explode reserves. Most employers know their employees pretty well and have an instinctive sense when there is something wrong with a claim. Defense attorneys get litigation files well after the claim occurs, and they pore over the supervisor’s report form, only to conclude that there just is far too little information on the form to win the case. Memories fade quickly, and any claims professional or defense lawyer knows how hard it is to resurrect the facts of a claim with a supervisor or witness in a discussion that occurs 12 or 24 months later.
The solution is simple: require a few extra minutes to obtain a more detailed series of questions right up front. Some of the 22 questions on this practitioner’s two-page form require simple yes or no answers, such as “Did you personally observe the incident involving this employee?” and “To your knowledge, was this accident witnessed or unwitnessed?” Some of the questions require a few sentences of description: for example, “If you did not witness the incident but others told you about it, describe exactly what they told you, who spoke with you, and what that individual said.”
How much does this cost to implement? The answer is it costs nothing. This is what it requires: an extra two or three minutes to complete over the traditional one page form. In exchange for an investment of two or three more minutes, employers get a useful form that paints a clear picture of whether the claim should be denied, whether there are strong defenses, and who the witnesses will be to help the employer win the case. It doesn’t matter what state the employer is in, as this approach is universal. There is no training required for supervisors because this kind of supervisor’s form must be self-explanatory and simple.
Clients of Capehart who are interested in reviewing this practitioner’s Employee Accident Form or the Supervisor’s Incident Report Form should contact the undersigned.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Thanks to our wonderful clients who continue to refer more and more of their interesting cases to us, we are growing. This month we welcome attorney Amanda Schwertner to our firm.
Amanda is a native of Big Lake, Texas and attended Texas Tech University where she was a student trainer for the football team. She has two dogs named Willie Nelson and Dolly Parton.
Please go to our website to check out herbiography and, when you have a free minute, give her a call to say hello.
One of our favorite adjusters, who works at a large workers’ compensation carrier, related this conversation she had this month with a claimant:
Adjuster: Why didn’t you return to work?
Claimant: I had a problem inside myself at the Courthouse.
Adjuster: A problem inside yourself at the Courthouse?
Were you in jail?
Claimant: Yes, ma’am. I was in jail . . . but it wasn’t my fault.
The adjuster adds that, while taking the claimant’s statement, she heard a loud noise and asked the claimant what it was. He said “it was the toilet . . . I had to pee.”
Do you have a funny industry story to tell? Send it to us for our July newsletter. If we publish it we’ll reward you with a gift card to KFC or another healthy-lifestyle restaurant of your choice.
The TDI-DWC has announced that the 2017 Texas Workers’ Compensation Educational Conference will be held in Georgetown on September 11 – 12 and in Dallas on October 12 – 13. The agenda and registration link are on the TDI-DWCwebsite.
We’ll be at the Georgetown conference and hope to see you there.
When a workers’ compensation carrier issues a policy that waives its right to subrogation the carrier also waives its right to reimbursement from any recovery by a claimant. That is the conclusion of the El Paso court of appeals in its recent decision inWausau Underwriters Insurance Co. v. Wedel.
In that case, James Wedel drove a truck for Cactus Transport, Inc. which regularly picked up asphalt from a terminal owned by Western Refining Company. Western required Cactus to subscribe to a policy of workers’ compensation insurance with a waiver of subrogation rights favorable to Western. Wausau issued the policy to Cactus with a waiver of subrogation endorsement.
Wedel fell and suffered brain and spinal cord injuries while attempting to load asphalt at Western’s facility in El Paso. Wausau paid approximately $1,548,822 in compensation benefits to Wedel, and Wedel then sued Western alleging third-party negligence. Wausau intervened and asserted its comp lien against any recovery by Wedel.
Wausau argued that its waiver of subrogation endorsement waived subrogation only as to the tort-feasor (Western) and did not waive the right to reimbursement from Wedel. In other words, Wausau asserted that its statutory rights of subrogation and reimbursement are distinct and independent rights and it could waive one without waiving the other.
The court of appeals disagreed. It held that by waiving its right of subrogation Wausau waived its right of reimbursement as well.--David L. Swanson, Stone Loughlin & Swanson, LLP
The Texas Legislature last month provided a new source of funding for a prosecutorial unit dedicated to rooting out workers’ compensation insurance fraud, and that new funding will radically change the unit’s operation. The prosecutorial unit is part of the Travis County district attorney’s office in Austin.
In the past, the prosecutorial unit had been funded through a controversial arrangement between the DA and Texas Mutual Insurance Company. Under that agreement, Texas Mutual made the fraud referrals, provided the investigators, and paid bills incurred by the DA for the prosecution of Texas Mutual’s cases. That arrangement came under sharp criticism last year and, in response, the Legislature appropriated money to fund the unit.
The money will come from a maintenance tax collected from workers’ compensation insurers. As a result of the new funding source, the DA will prosecute cases from any insurer. And Texas Mutual will no longer make fraud referrals or furnish investigators. Instead, the TDI-DWC will conduct the initial investigation and, if it believes a case warrants prosecution, it will refer the case to the DA.--David L. Swanson, Stone Loughlin & Swanson, LLP
Hot on the heels of the disturbing findings of the Workers’ Compensation Research and Evaluation Group, the TDI-DWC may be doing something about them. The DWC announced this month that it is accepting comments on an informal draft of amendments to Rule 134.500 (concerning definitions) and Rules 134.530 and 134.540 (concerning requirements for use of the pharmacy closed formulary).
The proposed amendments would change the definition of "closed formulary" to exclude any prescription drug created through compounding and require preauthorization for all prescription drugs created through compounding for claims subject to, and not subject to, certified networks.
The comment period closes July 7.--David L. Swanson, Stone Loughlin & Swanson, LLP
In 2016, the average cost of a compounded drug prescription in workers’ compensation claims in Texas rose to a whopping $829. That’s the conclusion of the Texas Department of Insurance, Workers’ Compensation Research and Evaluation Group. The group announced this finding and others last month in its publication Baseline Evaluation of the Utilization and Cost Patterns of Compounded Drugs.
Among the group’s many other findings are the following:
The group’s publication is available on the TDI-DWC website.--David L. Swanson, Stone Loughlin & Swanson, LLP
Do you have a ping-pong table at your office? If not, maybe you should lobby for one. That’s the implication from an article in the June 24th edition ofThe Wall Street Journal which describes the extraordinary steps that insurance companies are taking to recruit, and retain, employees these days.
For example, according to theJournal, Acuity Insurance has furnished its offices with ping-pong tables, a 45-foot climbing wall, and a 27,000 square-foot fitness center, and it organizes twice-monthly happy hours to boot. And at school-recruiting events last autumn, Acuity reportedly served mounds of freshly cooked bacon, whose aroma drifted around the grounds. Also according to theJournal, some insurers are taking a page from Silicon Valley’s hip offices. For example, Allstate Corp. has a “happiness guru” in a building where it locates many data scientists.
The reason for these over-the-top enticements? It turns out that Americans under 30 (millennials) generally aren’t excited about the idea of working for an insurance company (gasp!). And that’s a problem because insurers reportedly must hire 500,000 newcomers over the next several years as a wave of retirement hits.--David L. Swanson, Stone Loughlin & Swanson, LLP
On June 29, 2017 the North Carolina General Assembly passed House Bill 26 which amends G.S. § 97-82(b) of the Workers’ Compensation Act. As previously discussed,Wilkes v. City of Greenville held that when a claim was accepted as compensable pursuant to a Form 60 or section 1 of a Form 63 that a rebuttable presumption was created that any additional medical treatment was related to the compensable condition. The rebuttable presumption was not limited to the specific body part or medical condition accepted in the Form 60 or 63. The overall impact of the legislature’s change is to limit the scope of any medical presumption. The legislation has been passed by the General Assembly and is now awaiting approval by Governor Cooper before it can become law.
Amendment to G.S. § 97-82(b)
The reformed G.S. § 97-82(b) expressly states that filing a Form 60 or 63 shall not create a presumption that medical treatment for an injury or condition not identified in the Form 60 or Form 63 is causally related to the compensable injury. The amendment applies to all accrued or pending claims. A claimant can request a full evidentiary hearing to prove that any additional injury or condition is causally related to the compensable injury.
Recommendations for Claim Acceptances and Denials
Filing a Form 60 or 63
Teague Campbell’s recommendation is that employers and carriers handling workers’ compensation claims be as specific as possible when describing exactly which injuries or conditions are being accepted as compensable on a Form 60 or 63. There will be a medical presumption created for any listed injuries or conditions, but no presumption created for injuries or conditions that are not specifically listed. In addition, employers and carriers can still use a Form 63, section 2, to pay for medical treatment, in medical only cases, without prejudice. We do not recommend adding language to the Form 60 or 63 in an attempt to modify or limit the IC forms because those modifications will likely not be accepted by the Commission and would have no practical effect.
Filing a Form 61
We do not recommend filing a generic Form 61 attempting to provide a universal denial of all claims not specifically listed on the Form 60 or 63. This is not necessary and could pose some unintended consequences for defendants. Although filing a Form 61 with a Form 60 or 63 is not necessary because no presumption is created for conditions not specifically accepted, there may be certain circumstances where filing a Form 61 for a denied condition might be appropriate. Please contact Teague Campbell with questions regarding filing a Form 61 in these situations.
Consideration of Other Issues Raised by Wilkes
As part of the negotiations amend G.S. § 97-82(b), representatives for both employees and industry have agreed to continue to discuss issues raised byWilkes concerning how employees prove a disability during the remainder of the 2017-2018 legislative session. In addition, both sides have agreed to discuss the potential implications ofWilkes in medical only cases, including cases where medical benefits are paid without prejudice under Section 2 of a Form 63, and whether an expedited hearing process should be available to claimants seeking to prove that an additional condition or body part not listed on the Form 60 or 63 is related to the compensable injury.