Transcript COST CONTAINMENT IN Catastrophic CASES - AASCIF

James Stabler, J.D.
Timothy Wahlin, J.D.
Kevin Braun, J.D.
Beth Giebel Mandel, J.D.
Legal Issues and Obstacles to Cost
Containment in Arizona
James Stabler, J.D.
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ARS Section 23-1045 creates presumptions for total
permanent disability:
 Loss of sight both eyes
 Loss of both feet
 Loss of both hands
 Spinal cord injuries resulting in complete paralysis
of both legs, arms or one leg and one arm
 Head injuries resulting in “incurable imbecility or
insanity”
 Loss of one hand and one foot
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Spinal Cord Injuries
Closed Head Injuries
Burns
Combination
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Attendant Care
Durable Medical Equipment
Home modifications
Vehicle modifications or acquisitions
Narcotics
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ARS Section 23-1062. Medical, surgical,
hospital benefits; commencement of
compensation; method of compensation
A. Promptly, upon notice to the employer,
every injured employee shall receive medical,
surgical and hospital benefits or other
treatment, nursing, medicine, surgical supplies,
crutches and other apparatus, including
artificial members, reasonably required at the
time of the injury, and during the period of
disability. Such benefits shall be termed
"medical, surgical and hospital benefits."
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Medical benefits do not extend to child care. Hughes v.
Industrial Comm'n, 188 Ariz. 150, 933 P.2d 1218 (App.
1996).
Housekeeping services not covered. Patches v. Industrial
Comm'n, 220 Ariz. 179, 204 P.3d 437 (App.2009).
Quadriplegic's specially modified van was a
reasonably required "other apparatus." Terry Grantham
Co. v. Industrial Comm'n, 154 Ariz. 180, 741 P.2d 313
(App. 1987).
“Experimental” medical procedures may be covered,
including procreation procedures. Regnier v. Industrial
Comm'n, 146 Ariz. 535, 707 P.2d 333 (App. 1985).
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Marriage counseling compensable for services
provided to family (anger management) if counseling
also necessary to treat industrial injury. Mace v.
Industrial Comm'n, 204 Ariz. 207, 62 P.3d 133 (App.
2003).
Spouse must be paid for services provided to injured
spouse if the spouse is performing same services as
paid attendants (bathing worker, changing soiled
diapers, checking oxygen levels on sleep apnea mask).
Carbajal v. Industrial Comm'n, 223 Ariz. 1, 219 P.3d 211
(2009).
North Dakota’s Statutory Approach
Timothy Wahlin, J.D.
Catastrophic injury includes:
(1) Paraplegia; quadriplegia; severe closed head injury; total
blindness in both eyes; or amputation of an arm proximal to the
wrist or a leg proximal to the ankle, caused by the compensable
injury, which renders an employee permanently and totally
disabled without further vocational retraining assistance; or
(2) Those employees the organization so designates, in its sole
discretion, provided that the organization finds the employee to
be permanently and totally disabled without further vocational
retraining assistance. There is no appeal from an organization
decision to designate, or fail to designate, an employee as
catastrophically injured under this subsection.
5. Under this section, the organization may modify real
estate and may provide for adaptations and
modifications to motor vehicles as follows:
a. In the case of an injured employee who sustained a
catastrophic injury, as defined in chapter 65-05.1, the
organization may pay an amount not to exceed fifty
thousand dollars to provide permanent additions,
remodeling, or adaptations to real estate it determines
necessary. The dollar limit is for the life of the injured
employee, regardless of any subsequent claim. This
subdivision does not allow the organization to
purchase any real estate.
b. In the case of an injured employee who sustained a catastrophic
injury, as defined in chapter 65-05.1, the organization may pay an
amount not to exceed one hundred thousand dollars to provide
the most cost-effective, specially equipped motor vehicle or
vehicle adaptations the organization determines medically
necessary. The organization may establish factors to be used in
determining whether a specially equipped motor vehicle or
adaptation is necessary. Under this subdivision, the organization
may not pay for insurance of or maintenance of the motor vehicle.
Within the dollar limit and under this subdivision, the
organization may pay for vehicle or adaptation replacement
purchases. The dollar limit is for the life of the injured employee,
regardless of any subsequent claim.
However, the organization shall pay to an injured
employee who has been determined to be
catastrophically injured as defined by
subdivision c of subsection 2 of section 65-05.106.1 an additional benefit, until the death of the
employee, equal to one hundred percent of the
final payment of the disability benefit that was
discontinued under subsection 2 or 3 of section
65-05-09.3.
Benefits Available, Cost Containment
Kevin Braun, J.D.
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Defined (internal definition) to include:
Fatalities
Multiple injured workers from a single accident
Loss of extremity or vision
Severe spinal cord injuries
Head injury, open or closed
Multiple serious injuries to a single individual
Severe burns (2nd or 3rd degree)
Traumatic hearing loss
Heart attack
Diagnosed asbestosis and/or toxic exposure claims
Traumatic incident with physical injury and PTSD
HIV, blood borne pathogen, air borne pathogen and/or infectious
disease diagnosis
 Rape or serious personal assault
 Claims with >250K in incurred reserves
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All of the usual benefits, TTD, PPD, TPD, Medical Benefits,
Vocational Rehabilitation Benefits
Permanent total disability benefits
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Defined as not having a reasonable prospect of performing regular
employment
Regular employment is work on a recurring basis
May be less than full time work, rule of thumb is earning at the federal
poverty level or greater
Benefit level is 66-2/3 of AWW capped at the State’s AWW
Payable until the claimant begins drawing SS Retirement benefits or until
the claimant is eligible to begin drawing full SS Retirement benefits
Travel for family members
– Payable if the claimant needs inpatient care for at least 21 days
in an area more than 100 miles from work or residence
– Requires matching funds from a community based organization
– Limited to $2,500
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Domiciliary Care Benefits
- Triggered by the insurer’s knowledge of the
worker’s need for home medical services as a result of
the injury
- Services performed under the direction of the TP
following a nursing analysis
- Services are beyond the scope of normal household
duties
- Can be provided by a family member
- Family member reimbursement limited to the daily
statewide average Medicare reimbursement for a
nursing home when 24 hr care is required otherwise
limited to 8 hrs day at the mean hourly wage for
home health aides
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Case law results should drive a statutory response
Quick v. Montana State Fund, 2008 MTWCC 27
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Absence of statutory guidance for older claims results in
spouse being paid $20/hr 24-7 plus 1/3 attorney fee for
an annual cost of $233K for domiciliary care.
Physician testimony that skills of an RN are needed as the
claimant has a brain injury and is prone to certain
outbursts and other inappropriate behavior
Wife is an RN and the Court used the low end RN wage
Claimant is largely self sufficient but is unpredictable as
to when he needs assistance so 24-7 care is necessary
Under the current statute, the care would be
approximately $60K per year.
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Medical management is often the key as a cost driver and a
disability driver
Early intervention occurs with a CAT meeting with the
claims examiner, team leader, QA, nurse case manager and
legal within 5 days of receipt of the claim
Where appropriate, early intervention with vocational
rehabilitation occurs
Annual large loss meetings occur
MSF uses strategic nurse consultants on Cat Claims to
conduct a thorough file review, collaborate and to make
recommendations and provide other assistance to the claims
examiners
Cannot direct medical, but use IMEs and the Medical
Advisor to assist in answering questions and managing the
claim
Minnesota
Beth Giebel Mandel, J.D.
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Spinal cord injury resulting in paraplegia or
quadriplegia
Traumatic brain injury (TBI) causing impaired
cognitive function or permanent disorientation
conditions
Amputation of a significant portion of one
extremity or multiple amputations
Third-degree burns covering 10% of body or
second-degree burns covering 30% of body
Fatality with dependents
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Determine compensability
Issue death benefits timely, if appropriate
Temporarily totally disabled (TPD) benefits
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Permanently totally disabled (PTD) benefits
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Statutory limits:
Statutory limits:
Permanency ratings
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Rate body parts affected
Utilize internal physicians and medical expertise
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Varies by type of catastrophic claim, but may
include:
Household remodeling (spinal cord)
 Group home or permanent housing placement (both)
 Transportation/vehicle modification (spinal cord)
 Personal care attendant – nursing, PCA (both)
 Medication (both)
 Emotion and communication issues (TBI)
 Bed sores and urinary tract infections (spinal cord)
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Within 48 hours:
Contact employer
 Contact employee’s family
 Medical staff (nurses, physicians, etc.)
 Contact CAT team (internal)
 Contact DOLI as required by law
 Report claim to WCRA (for reinsurance, expert
advice and obtaining reimbursement)
 Legal counsel
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Assign experienced nurse case manager right
away.
WCRA – monopolistic reinsure in Minnesota.
They see/know it all.
Team of internal expertise (i.e. nurses, doctors,
attorneys, QRC) meet at important junctures.
 QUESTIONS??