1. Worker’s Compensation
The Rules of the Game
Alice M. Adams, RN
May 14, 2012
ama@alicemadams.com
404-771-5155
2. Define the parameters of an accepted work-related injury
and the employer’s possible defense to that injury.
Identify the nursing role in attending IME appointments
with patients and assisting attorneys with controverted
claims
Careers in Legal Nurse Consulting
www.lncConference.com
Saturday July 21, 2012
3. What is Workers’ Compensation?
Commonalities among states
HIPAA
Medical Only vs Lost-Time
7. General Concepts
• What is workers’ compensation
• When does coverage begin
• What is considered an injury
• Report within 30 days, file within one year
• Horseplay, haste and inattention
• Exclusive remedy
• Lawsuit/subrogation lien
• Lawyer fees
• Loss of benefits
8. Employee’s Responsibilities
1. Report within 30 days
2. Accept treatment & rehab
3. RTW, reduced earnings, compensation
4. Job attempt
5. Statute of limitations
6. Drug test refusal
7. False and misleading statements
http://www.files.georgia.gov/SBWC/Files/employee_handbook.pdf
9.
10. The IME
When the defense orders an IME
When the claimant schedules an IME
California DME/QME/AME
Does an IME change anything?
11.
12. When you attend an IME
Why do it? Ask the attorney what he wants
When the patient may not Meet and prepare the patient
understand or is frightened
Review the records
When the care is complex
Provide a summary if requested
When the physician is unknown
A pre-approved silent observer
When the physician is known
Know what to expect
Chart what is said and done, wait
times, staff and physician attitude
14. Duties of the Case Manager
• Medical Management
• Vocational Evaluation
• Identifying medical or return to work issues
• Job descriptions
• Medical Cost Analysis
• Communication with medical providers to clarify treatment
plans
15. Seeing the big picture by looking at the totality of care
When patient advocacy means less care
The case of Mr. Cilantro
Babysitting vs active case management can often lead to iatrogenic complications
Sometimes, NO is in the patient’s best interests
16. Psychological Complications
When is care allowed
Who makes the call
What is usual and customary
What about pre-existing
from Mr. H. Dill Battle, III of Spillman Thomas & Battle, PLLC
http://www.spilmanlaw.com
http://www.workerscompensation.com/compnewsnetwork/workers-comp-
blogwire/14043-wv-sca-secondary-condition-psychiatric.html
17. Patients vs. Injuries
“it is often more important to
know what type of patient has
the injury
…rather than to know what
type of injury the patient
has…”
Dr. David B. Adams
www.psychological.com
18. My 10 Critical Diagnostic Data – All Pain Patients
•The Patient’s Developmental History
•The Patient’s Educational History
•The Patient’s Medical History (including addiction)
•The Patient’s Work History
•The Patient’s Recounting of the Accident
•The Patient’s Understanding of the Physical Damages
•The Patient’s Assessment of Medical Care
•The Patient’s Expectations and Future Goals
Dr. David B. Adams
Atlanta Medical Psychology
20. Identifying Depression
1. Has patient lost or gained significant weight?
2. Is there a specific sleep problem?
3. Is the patient irritable?
4. Is the patient forgetful, have difficulty concentrating
and/or have trouble making decisions?
5. Does the patient feel guilty and/or worthless?
6. Is the patient readily tearful?
7. Has the patient ceased to enjoy hobbies or interests?
8. Is there a decrease in libido?
9. Is there psychomotor agitation or retardation?
10. Does the patient express thoughts about death?
Dr. David B. Adams
Atlanta Medical Psychology
22. Controverted claims and
Potential Employer Defenses
Arising out of and in the course of employment
Rycroft analysis
Deviation from employment activities
25. 1. Is the condition an actual “injury”?
2. Did it occur in the course of employment?
3. Did the injury arise out of employment?
26. Disease vs Injury -What’s the Difference?
Angina (caused by disease, worsened by exertion,
involves no death of tissue) is more of a recurrent
symptom
vs
Myocardial Infarction (an acute MI involves actual
death of tissue and actual damage
TIA (ischemic, resolving within 24 hours)
vs
CVA (80% ischemic, 20% hemorrhagic)
27. Medical Evidence to support “in the course of”:
-serum enzyme changes (time-specific)
-EKG
-nonspecific indices of polymorphonuclear leukocytosis
-cardiac imaging
28. Arising Out Of……….But For
“There must be some causal connection between the conditions under which the
employee worked and the injury which he received.”
And
“The cause of the injury must be incidental to, rather than independent of, the
employer-employee relationship.”
Time matters – the shorter the interval, the stronger the case for causation
29. How hard was the patient working?
It may not matter. Georgia is not among those states which require that
the job-related physical exertion be an unusual one. The plaintiff could
have even been doing lighter than usual work that day.
In the Georgia Laws, 1963: P. 141: the heart attack can be “…attributable to the
performance of the usual work of employment”
But, awards have been upheld when undue emotional stress precipitated a cerebral
hemorrhage.
Another was upheld when the cerebral hemorrhage was due to his working when it
was unusually hot (rather than to his drinking iced tea).
What matters: Drawing the line between a noncompensable heart disease
that manifests itself at work, and a compensable heart injury to which the
job exertion was a contributing factor”(Guye v. Home Indemnity Company, 141 Ga.
213, 244, S.E.2d 864(1978)
These are the objectives to keep in mind as we move through this discussion. If you have questions about these topics at the end of my soliloquy, please be sure to ask me or email me.
WC as we know it today came into being in the US in 1902 in the state of Maryland. Prior to that time, an injured worker who claimed an injury had to prove it was the fault of the employer and then sue for medical care.Workers' compensation is a system in which an employer must pay, or provide insurance to pay for, the lost wages and medical expenses of an employee who is injured on the job.Do not need to be a legal citizen or even have a valid SSNDo not have to be full time workerIndependent contractors not coveredComp law is governed by statutes in every state but some features are consistent.An employee is automatically entitled to receive certain benefits when an occupational disease or accidental personal injury arises out of and in the course of employment. And that phrasing is very important.Benefits may include cash or wage-loss benefits, medical and career rehabilitation benefits, and in the case of accidental death of an employee, benefits to dependents. The Negligence and fault of either the employer or the employee usually are immaterial with a few exceptions that we’ll cover.Because the employer is covering the cost of health care, the employee gives up the right to sue the employer or fellow employees. They can still sue a third party, and some examples might include product liability for a defective machine, or premises liability; an example would be a truck driver who is injured off-site in the delivery of a shipment by the gross negligence at this other location. Third party suits do not change the rights and care of the injured worker, but may affect the proceeds of any third party settlement if the employer has the right to recover any of the money they have spent because of the accident.One huge difference between private health care and employer health care is that HIPAA rules do not apply regarding release of medical and/or confidential information. This is something that not every injured worker understands. And although employee rules and rights are clearly outlined by the Board of each state and available in handbooks, not all injured workers can read.There are two basic types of injuries; one is medical-only in which there is no or minimal lost time and the employee RTW even if they are still receiving medical care. The other is known as a lost time injury, which is just what it sounds like.
There are many ways to get hurt in Texas, and it is the only state in which employers do not have to provide traditional workers comp insurance.However,Texas employers who do not carry workers’ compensation insurance have to report this, and they have to report work-related injuries and illnesses to the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC). Employers are also required to notify their employees if they do not carry workers’ compensation insurance. Employers who do carry workers’ compensation insurance coverage are required to report any work-related injuries and illnesses to their insurance carrier.Although a Texas employer may choose not to have coverage, non-covered employers must comply with certain workers’ compensation requirements and if they have five or more employees must report all work-related injuries or illnesses to the TDI-DWC by the seventh day of the following month. Employers that fail to meet these requirements commit an administrative violation and may be subject to administrative penalties.
California has a very important distinction from Georgia.The Medical Unit is a unit within the state Division of Workers' Compensation (DWC) that manages medical issues in workers' compensation and appoints qualified medical evaluators (QMEs), spinal surgery second opinion physicians (SSSOPs) and independent medical reviewers (IMRs). These physicians help resolve medical disputes in the workers' compensation system by issuing medical opinions that can be used as evidence before the Workers' Compensation Appeals Board.In California, a workers compensation claim does not require a physical injury.A psychological or stress claim without injury is possible.In order to have a viable stress claim you must have been employed for at least 6 months... UNLESS the psychiatric injury is caused by a "SUDDEN AND EXTRAORDINARY" employment condition. The six month employment requirement is not applicable for treatment for psychological injury (pain and depression / anxiety ) that is a compensable consequence of a physical injury.
2. In Georgia, there must be a physical injury, regardless of the severity.This injury must either be new, or be a substantial aggravation of a pre-existing injury/illness (degenerative disk disease, prior surgery, etc.)Workers’ compensation coverage begins the first day of employment. Employers with three or more employees are required by law to provide coverage. Rules and fee schedule for reimbursement subject to amendment or change on July 1 of every year.Employer is required to post a list of at least six doctors or the name of the certified WC/MCO which provides medical care. You may choose a doctor from the list and transfer care to another doctor on the list without the permission of your employer. Temporary medical care from any doctor until an emergency is over; then you must get treatment from a doctor on the posted list. You are entitled to weekly income benefits if you have more than seven days of lost time due to an injury. Your first check should be mailed to you within 21 days after the first day you missed work.
Workers’ compensation is a benefits program created by state law that provides medical, rehabilitation, income, death and other benefits to employees and dependents due to injury, illness and death resulting from a compensable work-related claim covered by the law. Q. When am I covered? Workers’ compensation coverage begins the first day of employment. Employers with three or more employees are required by law to provide coverage. Q. What is considered an on-the-job injury, illness and death claim? Any injury, illness or death arising out of and in the course of employment is by definition a compensable work-related claim. This means if employees are injured while performing assigned job duties during assigned work hours, they are covered under the workers’ compensation program. Injuries sustained while engaging in unassigned duties, during lunch and breaks, are not covered. In addition, injuries that occur during an employee’s normal commute to and from work are not covered. Q. If I am injured on the job, what should I do? You should IMMEDIATELY report your injury to your employer. Obtain and fill out the paperwork Q. Are employee misconduct claims resulting from on-the-job injuries covered? No. Workers’ compensation does not provide benefits for an injury or accident resulting from an employee’s willful misconduct (i.e. fighting, horseplay, willful act of third party for personal reasons, injuries related to alcohol or drug abuse). Q. Are injuries resulting from haste and inattentiveness covered? Yes. These types of injuries would be covered under the workers’ compensation program. However, employees are encouraged to follow company policies and safety rules and may subject themselves to company discipline if these rules are not adhered to. Q. Can I receive money damages in addition to workers’ compensation benefits if I am injured on the job? No. Workers’ compensation is the “exclusive remedy” a worker has against his/her employer for damages resulting from an on-the-job injury. Q. Can I sue anyone for a work-related injury? If your injury was caused by the negligence of a third party other than another person who is also an employee of the company for which you work, you may have a right to sue that party. If you sue and receive a dollar award, your employer may have a right to recover some or all of the cost expended in your workers’ compensation claim. This is known as a subrogation lien. The lien would only be recoverable after you had been fully compensated for your loss resulting from your on-the-job injury. Q. How much will an attorney charge to handle a workers’ compensation claim? The Workers’ Compensation Statute limits the attorney’s fee to a maximum of 25% of income benefits received, not to exceed 400 weeks of benefits. In addition, you would also be responsible for paying any expenses associated with the pursuit of your claim. Q. How can I jeopardize my benefits? Failure to report injuries promptly. Failure to cooperate with employer and authorized treating physician regarding medical evaluations, treatment, rehabilitation services and claim investigation. Refusal to return to suitable employment. Working elsewhere
EMPLOYEE’S RESPONSIBLITIES You should follow written rules of safety and other reasonable policies and procedures You must report any accident immediately, but not later than 30 days after the accident You must accept reasonable medical treatment and rehabilitation services when ordered by the State Board of Workers’ Compensation or the Board may suspend your benefits. No compensation shall be allowed for an injury or death due to the employee’s willful misconduct. You must notify the insurance carrier/employer of your address when you move to a new location. You should notify the insurance carrier/employer when you are able to return to full-time or part-time work, and report the amount of your weekly earnings because you may be entitled to some income benefits even though you have returned to work. You must attempt a job approved by the authorized treating physician even if the pay is lower than the job you had when you were injured. If you do not attempt the job, your benefits may be suspended. Any request for reimbursement to you for mileage or other expenses related to medical care must be submitted to the insurance carrier/employer within one year of the date the expense was incurred. If an employee unjustifiably refuses to submit to a drug test following an on-the-job injury, there shall be a presumption that the accident and injury were caused by alcohol or drugs. If the presumption is not overcome by other evidence, any claim for workers’ compensation benefits would be denied.
a. The accident/injury was not witnessed by a co-worker.b. The injury occurs immediately after a vacation day, Monday, or seasonal activities.c. The injury is not consistent with job duties.d. Claimant is disgruntled, facing firing, layoff, soon to retire or seasonal work is about to end.e. Claimant has a history of short term employment.f. Claimant has moved out of state or the immediate area.g. Description of accident/incident varies from the first report of injury and the medical history given to the physician.h. Knowledge among employees that claimant is active in sports or has another job.i. Claimant is never home to answer the phone or is always sleeping and cannot be disturbed.j. Claimant is reported to be suntanned, muscular, has callused hands, or grease under fingernails.k. Claimant requests a change in physician when he/she receives a “Release for Work.”l. Details of accident are vague and/or are not promptlyreported to supervisor.m. Claimant is experiencing financial difficulties.n. Repeat incidents where the same doctor and attorney are involved together on claims of questionable merit.o. Claims that appear to be “boilerplate” copies from the same doctor involving different claimants.p. Injuries are all subjective, such as stress, inability to sleep, headaches, nausea, etc.q. Diagnosis is inconsistent with treatment.r. Medical bills submitted without adequate descriptions of office visits and other treatment.s. Medical bills submitted are photocopies of original bill.t. Claimant appears to be getting better until he/she visits a new provider, then he/she unexpectedly regresses.u. Treatment dates coincide with holidays or weekends.v. Doctor’s specialty is inconsistent with injury.w. Workers’ Compensation insurer and health carrier are billed simultaneously; payment is accepted from both.
Unbiased ideals, the concept of fairness, two sides to every story.
Discuss nurse case managers and attendance at appointments for the insurerThe nurse who attends a plaintiff IME or physician visit
In order for a non-privileged document to be protected from discovery, it must fall within the “work product” exception and be created in anticipation of litigation.In order to escape discovery under the Georgia Discovery Rules, documents and other tangible things must have been prepared in anticipation of litigation and the materials must contain the mental impressions, conclusions, opinions or legal theories of the person preparing them; if the items sought do not satisfy both requirements they do not constitute work product, and may be freely discovered. The work product exception is a narrow one, and work product documents are still sometimes discoverable if the opposing party can show the need for them by satisfying a necessity requirement. Setzers Superstores of Ga., Inc. v. Higgins, 104 Ga. App. 116, 121 S.E.2d 305 (1961).
These are typically duties of the nurse assigned or hired by the insurer. It also works for the plaintiff attorney.Most of the time, this is a good thing.When the plaintiff attorney blocks access: direct patient contact vs telephonic management
Followed by a brief look at patients and their histories, personalities
In Hale v. WVOIC and Rockspring Development, Inc., No. 101028, (W. Va. March 22, 2012), the Court continues its recent trend of weakening the Rule 20 medical management guidelines. The Court addressed whether a claimant must get prior authorization from a claims administrator before seeking an initial psychiatric consultation. In an unanimous opinion, the Court held that W. Va. C.S.R. § 85-20-12.5(a) was invalid because it is in direct conflict with W. Va. C.S.R. § 85-20-9.10(g) and W.Va. Code § 23-4-1(a), and because it requires the claims administrator to make a psychiatric treatment decision without having the benefit of an expert psychiatric report, as required by W. Va. C.S.R. § 85-20-12.4. Hale at 10-11. The Court provided a roadmap for claims administrators when it held that W. Va. C.S.R. § 85-20-12.4 sets forth a three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers' compensation claim: (1) the claimant's treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W. Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim. Hale, at 10-11.
See the patient as they areThe adjustor, defense attorney, employer management, may never see this patient.They may see the potential for a high cost claim and move to block acceptance if they feel they can justify their position.
A WC-3 is a move to block care for an injury. It is crucial to list the grounds upon which the medical treatment is being controverted, as same will determine who has the burden of proof at a hearing. If medical treatment is controverted on the basis that it is not reasonably necessary, the burden of proof is on the employer/insurer. A good example of this is spinal cord stimulator trials. These are almost universally opposed unless the medical evidence is overwhelmingly in favor of the procedure. (Cost, over-use, long term maintenance)If the treatment is controverted on the basis that it is not related, the burden of proof is on the employee. A good example of this is a claim for what appears to be a medical condition, such as a heart attack.
The only requirement for a valid controvert is to put the claimant on notice of the fact of the controvert and the grounds for same. From a defense standpoint, the less said the better and they may want to reserve any other defenses which might arise down the road by adding “All other 34-9 defenses are expressly reserved” (just in case they think of more reasons later on). Specific grounds include “Lack of Notice”;“No accident or injury arising out of or in the course of employment”; Defense will explore potential defenses and reimbursement optionsArising out of and in the course of employment.Intoxication (drug and alcohol testing)/Fighting/Horseplay/Suicidec. Rycroft analysis (intentional misrepresentation about prior injuries)d. Legal technicalities
First, this isn’t malpractice. You do not have to prove sole causation.You do not have to prove that someone did something wrong.You do not have to prove permanent damages.You are not looking for physician error
You are looking for the link between the normal work activity and the injury. This is hardest to do when there is no visible injury and the damages are medical. One of most difficult cases to prove are cardiac – heart attacks and strokes.
Here is where you can be invaluable to your attorney, because you can find the acceptable facts, if they exist. Here are the three ways to establish a heart case, decided by the Supreme Court of Georgia in 1962, amended in 1963 and reviewed in 1978:Medical opinionLay observation and opinionNatural inference through human experience
In some instances, angina could be considered an accident if there was no prior heart damage, and work pressure and stress precipitated the need for coronary bypass on the date of the claimed accident. You would have to prove that this injury is more than chest pain from pre-existing atherosclerosis.The defense attorney will be working in the other direction.
Determining timing is crucial to the concept of “in the course of” and enzymes matterCreatinekinase exceeds normal range within 4-8 hours and declines 3-4 days laterMB-CK enzymes are above normal within 12-16 hrs of onset, peak within 14-36 hrs and return to normal in 48-72 hrsThe total quantity of enzyme released correlates with the extent of infarction
In other words, it is not enough that the heart attack happened while at work.You must prove that the work involved was a causal connection to the heart attack.Burden of proof is on the employee and death is not a causal connection.And the medical evidence to support the claim must be based upon valid assertions or it is inadmissable.For instance, if your cardiac expert is asked to render a hypothetical opinion on the basis that no heart disease existed in the employee or immediate family, and this “fact” inaccurate, then that physician’s opinion on the hypothetical issue of causation is flawed and useless, even if his conclusion on causation is still accurate.It is not enough for a physician to say that work stress can, or may, play a role. The statement must be more definitive; the employment DID play a role of causation.
Successful cases I have worked:Excessive work - car seat manufacturer, HI vs MIUnusual stress - nurse in the mock drill of kidnapping, MIIf there is time, discuss these non-cardiac controvertsNormal work, trip and fall, blow to chest with commotiocordis BBBTB case and liver failure
Sometimes, the attorney’s goals may be met without an injury being officially accepted as compensable.It’s called, Getting Your Foot in the Door.This basically means that if you can get the supporting opinion of a qualified physician, even if the Defense feels they will probably prevail in court…they may not wish to take that chance.Sometimes a mediated settlement is in the best interests of everyone.
