Controlling the Fire Before it Spreads (effective claim management)

Introduction About Me About this presentation –Helpful tips - not legal advice – different depending on circumstances - always consult your attorney

The Spark Ignites Es and Is: Expect every claim will go to litigation –If you do, they won’t; but if they do, they won’t go far

Employer Actions E: Get a written statement, get witness statements, immediately report to I If possible, take photos of Worker and area Do NOT direct care; remove any references to Employer-directed care Treatment of Worker –Sympathy goes a LONG way –Disciplinary Actions (no special tx) Less important due to Hawkins, but still helpful (credibility)

Insurance Investigation Obtain from Worker –Recorded Statement (keep audio and get transcribed) Hobbies, interests, ADL’s, concurrent employment Secure every possible method of contact (phone, cell, . etc.) –Prior WC Claims Is there anyone else in the household on disability? –Criminal, educational, previous job duties (Last ten years is relevant [SVP])

Insurance Investigation Obtain from Employer –Wages! 7 months of gross wages prior to accident, broken down by pay period Any wages post-accident Time cards –Does the timecard say there was an accident? –Personnel file, Job-Application, I9, relevant Policies/Procedures –Job description or confirmation of DOT –Supervisors/Witnesses contact information –Pictures of the WC Posters

Insurance Investigation Discuss with the Employer –Claim suspicious? If so, why? Was it properly reported? –Have the proper forms been filled out by Employer? –Are the posters correct with the half-sheet report? –Do NOT direct care! –Able to accommodate? –Confirm no concurrent employer

Notice: Poster Requirements NMSA B. Each employer shall post, and keep posted in conspicuous places upon his premises where notices to employees and applicants for employment are customarily posted, a notice that advises workers of the requirement specified in Subsection A of this section to give the employer notice in writing of an accident within fifteen days of its occurrence. The notice shall be prepared or approved by the director. The failure of an employer to post the notice required in this subsection shall toll the time a worker has to give the notice in writing specified in Subsection A of this section up to but no longer than the maximum sixty-day period. C. The notice required in Subsection B of this section shall include as an attachment to it a preprinted form, which shall be approved by the director, that allows the worker to note and briefly describe the accident and sign his name. The employer, any superintendent or foreman, or any agent of the employer in charge of the work where the accident occurred shall also sign the preprinted form that describes the accident. That signature shall not be a concession by the employer of any rights or defenses. It merely acknowledges receipt by the employer or his agent of the form signed by the worker. The preprinted form shall be prepared in duplicate so that both the worker and the employer can retain copies.

Posters – REQUIRED +

Posters - REQUIRED They are FREE from the NM Workers’ Compensation website. Also see the “Importance of the Notice of Accident” by Judge Griego No NOA form = No Poster

Paper the Claim Send proper Howell letter –Cite the statute –Confirmatory letters are insufficient –Certified mail AND other methods if possible Benefit Explanation Give Ombudsman info in ALL letters Keep signed copies, not just word- processed versions. Also keep return receipt of certified mail (and fax confirmations, sent items)

Howell, Historically You snooze, you lose Two months is not reasonable Employer deemed directed, even to own PCP

The New Howell NMAC (2) Selection of HCP: (a) The employer shall decide either to select the initial HCP or to permit the worker to select the initial HCP. The decision made by the employer shall be made in writing to the worker. Employer may communicate the decision to select the initial HCP or to permit the worker the selection by any method reasonably calculated to notify workers. The employer may use a wallet card, a poster stating the decision posted with the WCA poster, a flyer inserted semi-annually with pay checks, or any other method employer reasonably believes will be successful in alerting the worker. (b) If the decision of the employer is not communicated in writing to the worker, then the medical care received by the worker prior to written notification shall not be considered a choice of treating HCP by either party. (c) Medical treatment provided to the worker prior to the employer’s written communicated decision to either select the HCP, or to permit the worker to select the HCP, shall be considered authorized health care, the cost of which shall be borne by the employer.

Bad.

Good. Dear ___: I am writing at this time to confirm that you have chosen the doctor to treat you for your work-related injury. According to Section of the current workers’ compensation law, the employer/insurer has the right to either make the initial selection of health care provider, or they may waive their right to make the initial selection, and allow the worker to select a physician of their choice. This letter will serve to confirm that the employer/insurer has not chosen the initial doctor; instead, we are allowing you to select the initial health care provider. At the end of 60 days, from your first visit for this injury, the employer/insurer will have the right to change health care providers. If another health care provider is selected for you in the future, you will be notified by mail. If you do not understand, or disagree with anything in this letter, please contact me immediately at ____. You may also call or and speak with a Workers’ Compensation Ombudsman, who can further explain the health care selection laws. Sincerely, [Send certified, and other methods if possible. Save copies of certified receipt/signature or other confirmatory documents]

Paying Benefits Use the actual wage ledgers (not handwritten form) to calculate AWW/CR Pay what you think you owe –Don’t pay benefits based on the best case, unlikely scenario (you don’t have to assume the worst either) –Failure to pay means more “benefit” will be obtained by Worker attorney in fees –Reservation of rights letters to approve one or two medical visits make E/I look more reasonable

Complaint Filed Prepare for Mediation –Send mandatory production to Worker and Mediator Include wage records, pertinent medical, correspondence with additional Howell copies, job description, and DOT description –Talk with the employer – have an employer rep there –Estimate liability range

Estimating Liability Utilize the job description, previous jobs, and DOT to determine proper SVP – Look to job application or recorded statement for education level –True Story: HS grad becomes 8 th grade dropout after accident See if employer can accommodate –In-writing job offer, signed by W or via certified mail with deadline for acceptance

Estimating Liability

Loss of Use Be Prepared - put together the range Compensation Rate$ Indemnity Weeks150 5%$2, %$4, %$7, %$9, %$12, %$14, %$17, %$19, %$22, %$24, %$27, %$29, %$32, %$34, %$37, %$39, %$42, %$44, %$47, %$49,999.50

Loss of Use Be willing to reasonably settle at mediation –Loss of use is a crapshoot Guesstimation methods: –3x the IR –Modifier formula 0% IR does not mean 0% LOU –Lucero v. Smith’s Food & Drug Centers, Inc., 118 N.M. 35, 878 P.2d 353 (Ct. App. 1994) –Loss of function (RTW and ADL’s) is the crux, along with sympathy of Worker

Settlement Strategies Utilize what you have –Is he still employed? –Does he love his job? How would a prolonged battle affect his career? –Again, bring an employer rep to mediation – bring a job offer! Always willing to accommodate –Never too late to send a RTW offer

Settlement Strategies Find the driving force –Does he hate his job? Revenge? –Purely a money issue? Previous WC? –Spouse disabling the worker? Desire to relocate? –Desire to retire? –Anticipated layoff? Spouse retiring? Quick settlement before mediation, representation, or even significant treatment

Settlement Strategies It’s OK to make the first offer –Especially with pro se Workers Not a tort claim – reality check BUT don’t bid against yourself Line in the sand = OK If you have a settlement, lock it in with a hearing If rejected RR, offer of judgment (yes you can do this yourself) –Makes attorneys reconsider cost of litigation, especially in LOU cases

Call the Fire Dept. When to get a lawyer Worker has hired unreasonable counsel When it becomes overly-complicated If claim moves beyond mediation If Worker seeks pre-litigation discovery If Worker is accusatory pre-litigation Reached agreement, refer for quick settlement document drafting

Practical Tips Prior to claim: –Remove any references to E directing care Send new employee manuals –Ensure posters are in order –Ensure employees know proper reporting methods, ensure supervisors know post- accident measures

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