Transcript Diapositiva 1

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, email. 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 52-1-29
• 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
http://www.workerscomp.state.nm.us/poster
.php
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 wordprocessed 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 11.4.4.11
(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 52-1-49 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 1-800-255-7965 or 505-841-6000 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
– http://www.occupationalinfo.org/
• Look to job application or recorded statement for
education level
– True Story: HS grad becomes 8th 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 Weeks
5%
10%
15%
20%
25%
30%
35%
40%
45%
50%
55%
60%
65%
70%
75%
80%
85%
90%
95%
100%
$2,499.98
$4,999.95
$7,499.93
$9,999.90
$12,499.88
$14,999.85
$17,499.83
$19,999.80
$22,499.78
$24,999.75
$27,499.73
$29,999.70
$32,499.68
$34,999.65
$37,499.63
$39,999.60
$42,499.58
$44,999.55
$47,499.53
$49,999.50
$333.33
150
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 postaccident measures
Thank you.
For a copy of this presentation or more information, visit
www.elmorelawnm.com
Phone: (505) 225-3567