Transcript PowerPoint

WORKERS’ COMPENSATION
How to Effectively Work with the WCAB,
Insurance Companies and Attorneys
To Collect From
Workers’ Compensation Benefits
YOUR PRESENTERS
Angela Bott, Humboldt County DCSS
Child Support Specialist III
Alix Haik-Bruno, Sacramento County DCSS
Child Support Officer III
Steven Pesante, San Bernardino County DCSS
Child Support Attorney IV
GOALS OF THIS PRESENTATION
-- Give you a BASIC OVERVIEW of the Workers’
Compensation System
-- Show where LCSAs INTERACT with the Workers’
Compensation System
-- Discuss STRATEGIES on how to effectively collect child
support from WCAB benefits and liens
-- Tell you WHAT TO DO if something goes wrong with
resolving your child support lien
Workers’ Compensation : Underused and Underestimated
Least used enforcement action.
■ Very profitable if applied effectively.
Can affect both FPM3 and FPM4.
■ Depends on the case and the life of the claim.
■ Professional knowledge and continuous education
by LCSA staff members is needed.
MAJOR THEME TO REMEMBER
WCAB GUIDE
Released on June 5, 2014, it’s a comprehensive written
WCAB handbook available to print-out and take with you
to hearings. Compilation of best practices by LCSAs and
DCSS.
The most updated version of this document can be found
at California Central
________________________________
Review and understand the Glossary of terms
contained within it
LIFE CYCLE OF A WORKERS’ COMPENSATION CASE
Return to
work
Injury
Medical
Treatment
Unable to
return
Total
Temporary
Disability
(TTD)
CCP 704.160
Not charged against
settlement
Permanent
Disability
(PD)
Settlement
LC 4903(e)
Charged against
settlement
OVERVIEW OF THE WCAB SYSTEM
The Workers’ Compensation system is an Administrative Law
System which provides medical treatment and compensation
for employees injured while working “on the job”
Many observers say it favors workers at the expense of
employers.
It is an excellent source of periodic and lump-sum payments
of child support to LCSAs.
OVERVIEW OF THE WCAB SYSTEM
Understand what you are dealing with here . . .
The applicant’s attorneys only receive 15% of
the settlement as their fee, so actions are quickly
handled, on a “quantity” basis.
When liens are settled, you must make it easy
to get paid. Telephone calls are usually made by
litigants just once, on the day of the hearing or
trial, so someone must be available to discuss
your lien!
OVERVIEW OF THE WCAB SYSTEM
A worker is injured while working.
It must have a “nexus” to the job to be compensable.
The worker usually finds an attorney and files an
“Application for Adjudication”. 15% of settlement is
their fee.
If such a “nexus exists”, the claim is usually “accepted”
and the workers is sent for medical treatment.
OVERVIEW OF THE WCAB SYSTEM
If the nexus does not exist, the claim will be “denied”.
Sometimes claims are settled for “nuisance” value.
Once the Claim for Adjudication is opened, the State Department
of Workers’ Compensation sends a list of new claims to the State
DCSS. A “Match-up” occurs
The LCSA with participant managing responsibility (PMR) then gets
a list of tasks for obligors with open claims from the
State DWC.
OVERVIEW OF THE WCAB SYSTEM
LCSA IMPACT POINT - #
1
Once the LCSA finds out there is a claim open, it
takes two significant, yet separate steps:
1. Issues an IWO to the employer’s insurer
[to collect from TDD benefits being paid – NOW]
2. Files a child support lien
[to collect from the settlement – LATER]
OVERVIEW OF THE WCAB SYSTEM
LCSA IMPACT POINT #2
Settling the child support lien when the case
resolves at the end of the WCAB action. . .
. . . But that comes a lot later, so stay tuned.
OVERVIEW OF THE WCAB SYSTEM
The LCSA is authorized by California State Law to deduct
25% of Temporary Disability benefits payments to pay
child support
Code of Civil Procedure Section 704.160
These deducted payments are NOT charged as advances
against the eventual settlement
OVERVIEW OF THE WCAB SYSTEM
The injured worker continues to receive medical
treatment from his or her medical provider, and
continues to receive Temporary Disability Benefits, and
DCSS continues taking child support from TD benefits
payments until . . .
He or she is declared by the medical provider to be:
“PERMANENT AND STATIONARY”
This means the worker is stabilized and is going to
be returned to their prior health as much as possible.
OVERVIEW OF THE WCAB SYSTEM
EVERYTHING
CHANGES NOW
DIFFERENCES BETWEEN TTD AND PD
Total Temporary Disability (TTD):
• Intended to replace lost wages
• Max of 104 weeks of TTD benefits if injury occurred
after April 19, 2004 [Labor Code Section 4656 (c) (1)]
• Based on the employees last earnings
• We can issue W/C IWO for up to 25% of the benefit
(Code of Civil Procedure Section 704.160)
• You do not have to be WCAB lien eligible to issue a W/C
IWO
DIFFERENCES BETWEEN TTD AND PD
Permanent Disability (PD):
• Issued once TTD runs out or injured worker is “P&S” or
has reached “MMI”
• P&S: Permanent and Stationary
• MMI: Maximum Medical Improvement
• Not automatically garnishable. An order from a WCAB
judge must authorize us to take a percentage of the
benefit amount.
OVERVIEW OF THE WCAB SYSTEM
#1
The injured worker no longer receives TD benefits
– he or she now receives Permanent Disability
benefits.
Permanent Disability benefits payments, or
“PDAs”, are considered “advances” against the
eventual settlement of the claim
OVERVIEW OF THE WCAB SYSTEM
#2
The LCSA’s IWO no longer works
Generally, insurers will not deduct child support
from Permanent Disability benefit payments
Why? There is no law to authorize it
OVERVIEW OF THE WCAB SYSTEM
#3
There is law to authorize 25% deductions from
Temporary Disability benefits
Code of Civil Procedure Section 704.160
NO law authorizes child support deductions from
Permanent Disability benefits
OVERVIEW OF THE WCAB SYSTEM
#4.
As Permanent Disability Benefits are paid out, the
available compensation for child support is slowly
paid out, until . . .
There isn’t any money, anymore
But – “Truck Insurance” says they must reserve
out the amount of the lien
OVERVIEW OF THE WCAB SYSTEM
LCSA IMPACT POINT #2
SETTLEMENT OF THE LIEN
Assuming there IS money left, DCSS will seek to
satisfy the lien.
Labor Code Section 4903(e)
WORKERS’ COMPENSATION: EARLY INTERVENTION
Information from employer: Injuries, employer response form,
interruptions to employer IWO.
EI005 task is generated on the case.
A phone call can be the difference between a case not having
payments for months or having a brief interruption in
payments.
Reach out to NCP and employer directly to find out more
information.
WORKERS’ COMPENSATION: EARLY INTERVENTION
■ FPM3: Keep recurring payments coming in.
■
■
■
TTD IWO
Is EDD paying the injured worker?
File a petition to withhold PD if eligible.
■ FPM4: Lump Sum awards
■
■
File a WCAB lien if unpaid child support accrued from
the date of injury.
Monitor cases for payout if ineligible for a WCAB lien
for straight collections and/or other intercepts.
REFERRALS: DIR AND CSE
EN043 tasks:
• Generated at the participant level.
• Weekly batch.
• SSN is used as the matching identifier.
• Likelihood of mismatches is high.
• Population of claim insurance screen, only automated
CSE function in regards to workers compensation.
ESTABLISH AN EFFECTIVE WCAB UNIT
Establish a telephone number to call to settle liens
or get accurate WCAB lien balances
Staff the telephone number during all business
hours
Train your staff to settle liens
Give your WCAB staff settlement authority
ESTABLISH AN EFFECTIVE WCAB UNIT
Train non-attorneys to be “Hearing Representatives” to
expand coverage
[Use the Hearing Representative Agreement form]
Ask other LCSAs to make appearances for you, when
required [Family Code Section 17400(o)
Use the telephone call-in system, available in some areas.
Update and mail out Amended Liens
Use the newly-created “Petition to withhold Child
Support from Permanent Disability benefits”
ESTABLISH AN EFFECTIVE WCAB UNIT
BE
PROACTIVE!
DATA SOURCES: CSLN, OCSE and EAMS
•
•
•
•
•
CSLN:
Matches are handled within CSLN first, not CSE.
Only active claims are then transitioned manually by the
LCSA to CSE.
Not only workers’ compensation claims feed through.
For optimal claim management, large counties should
review daily, smaller counties once a week.
Can be used for other purposes like COAP asset research
DATA SOURCES: CSLN, OCSE and EAMS
•
•
•
OCSE:
State DCSS staff handles incoming matches.
Claim is manually loaded into CSE.
Workers’ Compensation IWOs are generated directly out
of CSE.
DATA SOURCES: CSLN, OCSE and EAMS
•
•
•
EAMS Public Search Tool:
Not to be confused with the internal EAMS platform
Main search done by first and last name. DOB can be
added for accuracy.
Events’ information is becoming more accurate each day.
FILING LIENS
Paper liens are unreliable, slow and cumbersome…
• Switching to e-filing is easy and free.
•
One central location processes documents, no need
to deal with WCAB branch specifics or response
timeframes.
•
•
Less use of paper, no need for cover sheets.
Savings in postage
FILING LIENS
How can I transition into e-filing?
• Contact DIR. They host a cost free monthly webinar to
train staff into the specifics of e-filing.
• Adapt your department’s procedures.
PAUSE
SETTLING LIENS
The law covering liens and their resolution is
outlined by Labor Code Section 4903(e)
LCSAs are called
“Child Support Lien Claimants”
SETTLING LIENS
OPENING LIENS
Created when the claim is first received, along
with the IWO for TD payment deductions
Filed with the Board – mailed to parties
AMENDED LIENS
Created when a matter is set for MSC, Trial or Lien
Conference – Lien Trial
NOT filed with the Board – mailed to the parties
SETTLING LIENS
LCSA REQUIRED
APPEARANCES
MSC when lien over $25k
Any Trial
Lien Conferences
Lien Trials
At any proceeding the court requests your
LCSA to be present
SETTLING LIENS
WCAB LITIGANTS MUST ATTEMPT TO
CONTACT YOU TO RESOLVE THE LIEN
*** They must telephone you at least once ***
Insertion of the phrase into the settlement
documents stating litigants will
“pay, adjust or litigate the child support lien”
is NO longer permissible
SETTLING LIENS
Most settlements take the form of a lump-sum
payment called a
Compromise & Release
Less frequently, the applicant reserves their right to
future medical treatment, and gets paid in periodic
payments in a
Findings & Award
SETTLING LIENS
The following protocols are to be used
when there is a
COMPROMISE & RELEASE
SETTLEMENT
SETTLING LIENS
What amount do you ask for in
resolving the lien?
It entirely depends on what amount of money
is
on the table
Do your research, first!
SETTLING LIENS
FIRST, determine the GROSS settlement
amount
THEN, deduct out the following:
Attorney fees at 15% of settlement gross
&
Permanent Disability Advances
SETTLING LIENS
What remains is the NET settlement amount
Example:
GROSS settlement amount - $20,000
Less Attorney fees (15%) - $3,000
Less PDAs - $6,000
_________________
$11,000 is the NET settlement
SETTLING LIENS
Now, evaluate the NET settlement amount
If you can pay the lien in full, and leave the
same or greater amount for the applicant,
REQUEST THE LIEN BE PAID IN FULL
If you cannot pay the lien in full, and leave the
same or greater amount for the applicant,
SPLIT THE NET SETTLEMENT 50-50%
SETTLING LIENS
Examples
Net Settlement is $11,000
LCSA lien is $3,000
Ask for entire lien to be paid
This leaves the applicant $8,000
SETTLING LIENS
Examples
Net Settlement is $11,000
LCSA lien is $6,000
Ask for $5,500
Split the net with the applicant
SETTLING LIENS
When to ask for
“a little bit more, Sir”
History of LCSA payments is poor. Future payments are
unlikely.
You sense the Board Judge is favorable to suggesting a
higher lien pay-out
You can talk the Applicant/Applicant’s attorney into more
since it will benefit their LCSA situation
SETTLING LIENS
Lack of Attorney Understanding of WCAB
process
On occasion, some applicant attorneys will
attempt to claim that no more than 25% of the
settlement can be used to resolve the child
support lien . . .
WRONG!
SETTLING LIENS
This misunderstanding comes from confusing the
statute which allows 25% of TD payments:
i.e., Code of Civil Procedure Section 704.160
with the correct code which allows Board Judges
complete discretion to resolve the lien in any
amount they feel is appropriate:
i.e., Labor Code Section 4903(e)
SETTLING LIENS
In the event you are bullied, thwarted, browbeaten,
ridiculed, belittled or otherwise mistreated by an
applicant’s attorney who does not wish to resolve the
lien pursuant to this widely-used, reasonable protocol,
CALL THEIR BLUFF!
Ask that the Court reserve the full amount
of the lien, and order a Lien Conference
be set to litigate the lien
SETTLING LIENS
When settlement talks are taking place, outline
your settlement strategy to the parties
Attend ALL chamber conferences with the Judge
Remember – the litigants cannot settle the case
without settling the child support lien, especially
when child support lien is substantial in size
SETTLING LIENS
Oh, heck – they selected a “Findings & Award”
settlement
NOW WHAT?
Applicant will now receive a modest, bi-weekly
periodic payment until their entire compensation is
paid out – this could take years
How does a LCSA get more than just a few $$$ a
week?
SETTLING LIENS
INVOKE THE PHRASE ALL APPLICANT’S
ATTORNEY FEAR . . .
“Your Honor, I would like to satisfy our child
support lien by commuting off the far end of
the award”
And what does THAT mean?
SETTLING LIENS
The court will likely be sympathetic to the LCSA’s
situation.
The court will then allow a lump-sum
“commutation” of periodic payments at the end of
the payment cycle to be converted to a one-time,
lump-sum payment made payable to the LCSA.
SETTLING LIENS
COMMUTATION EXAMPLE
Applicant is owed 240 payments of $185.00
bi-weekly to pay off his compensation award of
$44,400.00
You ask for 35 payments to be “commuted” to pay off the
child support lien of $6,400.00
SETTLING LIENS
For All Lien Settlements . . .
PLACE THE SETTLEMENT PROVISIONS REGARD IN THE
LIEN INTO THE SETTLEMENT DOCUMENTS
[Get a copy of the settlement documents]
ALWAYS REQUEST THAT THE INSURER PAY THE CHILD
SUPPORT LIEN DIRECTLY TO THE SDU
NEVER ALLOW THE APPLICANT OR APPLICANT’S
ATTORNEY TO PAY THE LIEN FROM THEIR PROCEEDS
SETTLING LIENS
Lien Conferences and Lien Trials
LCSA representatives must attend or your lien
might be resolved without your input, or disallowed
Trials can involve testimony, and even witnesses
Informal rules of Evidence are used
WHEN UNFORTUNATE THINGS HAPPEN
Why do unfortunate things happen?
Again, it is the nature of this system.
Things happened quickly, there is not sufficient time to
check things (like your child support lien balance)
correctly, and the parties are more interested in getting
the case resolved than getting your lien exactly right
OR
You didn’t file your lien electronically
WHEN UNFORTUNATE THINGS HAPPEN
How to guard against this?
Electronically file your liens – most important!
Call litigants before and after each hearing
Stay in the minds of the litigants by making telephone
calls and amending liens
Develop a relationship with your WCAB Judges
Frequently attend hearings, to show LCSA interest
WHEN UNFORTUNATE THINGS HAPPEN
SO, what can go wrong?
Your child support lien is omitted
completely from the settlement
Your child support lien is underpaid
NO money is left to pay the child support
lien
WHEN UNFORTUNATE THINGS HAPPEN
NOTIFY THE LITIGANTS OF THE PROBLEM
[by telephone, and confirm by FAX/Letter]
Ask the Defense counsel NOT to pay out the
settlement money until the lien is resolved, or
in the alternative, pay out all but the full
amount of the lien.
File a Petition for Reconsideration
Or Declaration of Readiness
WHEN UNFORTUNATE THINGS HAPPEN
Insurers are required to pay out the settlement
proceeds within thirty (30) calendar days of
settlement documents being approved by the court.
You must file for your relief promptly!
Petitions for Reconsideration must be filed within
twenty (20) calendar days of the award
[Labor Code Section 5903]
WHEN UNFORTUNATE THINGS HAPPEN
RECONSIDERATION FORM
Found on the
Department of Workers’ Compensation website
Use the DECLARATION OF READINESS FORM
if the defense counsel agrees to wait to pay out
the settlement until
the child support lien issue is resolved
CLOSING CONSIDERATIONS
TO MAXIMIZE YOUR WCAB COLLECTIONS
1. ESTABLISH AN EFFECTIVE WCAB UNIT
Be available during business hours
Workers should have settlement authority
Train your personnel on WCAB issues
Use Hearing representatives
Electronically file liens
CLOSING CONSIDERATIONS
2. PAY ATTENTION
Telephone litigants before and after hearings
Amend and mail out liens frequently
Develop a relationship with your WCAB Judges
Watch for omitted or underpaid liens
Attend hearings frequently
Keep WCAB contact list
updated and accurate
CLOSING CONSIDERATIONS
3. USE YOUR RESOURCES
Read and use the WCAB Guide
Understand the Glossary of Terms
Contact other LCSAs for assistance in attending
remote WCAB hearings
RESOURCES
California Central:
Workers’ Compensation Procedures Manual
Workers’ Compensation Master Contact List
Hearing Representative Agreement
Time for Questions
CLOSING CONSIDERATIONS
BE PROACTIVE
CONTACT INFORMATION
Angela Bott, Humboldt County DCSS
Child Support Specialist III
[email protected]
( 707) 441-3240
Alix Haik-Bruno, Sacramento County DCSS
Child Support Officer III
[email protected]
(916) 875-7618
Steven Pesante, San Bernardino County DCSS
Child Support Attorney IV
[email protected]
(909) 478-7439