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Hiring a competent workers compensation defense attorney is not an exact science, but it is an important first step in the process of defending your business in a contested workers comp claim, which can impact the cost of your workers compensation insurance

Relying on an attorneys' reputation is a good starting point, experts say. But regardless how successful a lawyer is, the candidate must be familiar with the industry in which you operate. Your local bar association may be able to help advise you of an attorney’s field of practice.

But even after retaining an attorney, your risk manager or director of worker’s compensation might still want to consider the relationship as a trial run until the attorney’s responses to various case management guidelines are evaluated. Discuss fees and your expectations with the candidate, and make sure your attorney follows up any agreement with a written confirmation
 

How to Use Your Attorney Effectively in Workers Comp Cases

Remember, all lawyers charge fees and bills by the hour. Once you have retained defense counsel, it is imperative that you limit your attorney’s hours by using his or her services efficiently. Here are some suggestions that could save your business unnecessary legal costs:

#1. Communicate through e-mail whenever you ca
n. Limit messages to only the most necessary information. This method gives you electronic documentation for the claims file and is faster than formal letters sent through regular mail.

#2. Keep all telephone calls short by planning your discussion ahead of time. Gather the information you need and end the call as soon as possible. Be sure to document the conversation for the workers compensation claims file.

#3. Limit your attorney’s time by having your claims manager obtain the defense and claimant statements. Supply any required personnel records as well as all medical examination information. Make sure your attorney receives claim file reports and all investigation information.

#4. Require your attorney to ask your permission before doing any additional research or hiring a private investigator.

#5. Obtain a cost estimate for legal services from your lawyer and follow up on this with any revisions. You can use the estimate as a basis for a workers comensation legal reserve.

#6. Eliminate redundant mailing and copying costs. After the attorney has made an initial assessment and provided a plan of action, it is only necessary to comment on current activities. There should be no need to copy the claim file on subsequent depositions or interrogatories.

#7. Employ more than one attorney, if possible. The competition can generate better results, especially in litigation.

#8. Promptly obtain and provide information that your attorney needs to efficiently handle your workers comp case.

#9. Negotiate agreements and settlements whenever possible. Limit attorney negotiating to pretrial conferences, arbitration, and trial.

#10. When your attorney negotiates, set limits and authorities. And require a telephone request for additions to the first limits and authorities. Serve any subpoenas for the attorney, if possible.

#11. Ask your lawyer to bill you promptly and on a regular basis. Check the invoices carefully for accuracy—everything should conform to your written agreement and coincide with the information in the claim file records. Make sure that paralegal fees have not been submitted as attorney fees. Pay the invoices promptly to avoid late charges.

#12. Manage fee increases. Make it clear that fee increases should happen only after direct negotiation and agreement.

Any time your attorney is working on your workers compensation insurance case, the clock is running. Think about everything that comes under billable time—telephone calls, research, investigations, depositions, trial prep and the trial itself, just to name some of the activities—and you begin to realize the importance of controlling those hours as much as possible.

 

Want to Lower Your Workers Compensation Insurance Cost? 

To learn more about controlling your workers compensation insurance cost, contact American Insuring Group online or call us at (800) 947-1270 or (610) 775-3848.

As a Trusted Choice independent insurance agency, we have the freedom to shop among many competing workers comp insurance providers, so you'll get the right insurance coverage at the right price. Call or click today to get started!

Employers and insurance companies have been using functional capacity evaluations (FCE) for over thirty years. In workers compensation insurance cases, the FCE is used to evaluate an employee's ability to perform activities related to his or her employment.

The FCE process compares the individual's health status, body functions, and structures to the demands of the job and the work environment.

 

What is the purpose of an FCE in workers’ comp?

An FCE's primary objective in workers’ comp insurance cases is to evaluate objectively an injured employee’s ability to return to work. By identifying functional restrictions and determining the degree of disability, the test is designed to increase the likelihood that an injured worker can safely return to work. The test can also uncover “symptom magnifications,” which, in layman terms, are exaggerated claims of incapacity and pain.

How does the FCE test work?

Experts with a background in industrial rehabilitation and social work administer the physical and cognitive tests. The tests measure the worker’s resilience and endurance. If the employee is unable to perform his pre-injury job, the testers attempt to determine if there are skills that are transferable to another line of work. The results of the testing, used in combination with opinions and other findings, are used to decide if the employee can return to work.

The FCE provides objective information in the following areas:

• When to allow the employee to return to work
• If the employee can return to the same job
• The employee’s functional abilities on the job
• The employee’s functional abilities away from work
• A disability evaluation
• A rehabilitation plan
• The need for other medical treatments

There are two types of FCE

The Job Specific FCE evaluates an injured worker’s ability to work in a particular job. The test can be performed at a clinic or on the actual job site. The therapist will determine if the worker can safely perform the tasks of the job he held before the injury or if modifications of the required work will be needed.

The General Purpose FCE is used if the employee no longer has a job to which he can return or if the job functions have not been determined. The results of this test will be used to find out the worker’s ability to work at specific jobs that may become available in the future.

When should you use an FCE?

It probably goes without saying that you won’t need to use a functional capacity evaluation in every one of your workers’ comp cases. But the tests should be utilized in any case in which the injured worker’s functional ability is at issue. You would certainly consider using the evaluations when the employee claims not to be able to return to work because of restrictions, education, or non-transferable skills. If the worker is requesting retraining benefits or looking for permanent total disability, an FCE would be warranted.

Choose the right time to seek an FCE

If your employee is currently at a point in the healing process where additional medical care will be needed, the FCE will not help the defense of the workers comp insurance claim. But if you suspect that your employee is malingering, the tests may help to detect the symptom magnification mentioned above. The report from the tests could lead to a quick settlement or bring about an advantageous result in litigation.

Finding the right evaluator

Choosing an expert comes down to looking at a few vital factors:

• Professional reputation
• Education and background
• Ability to write a plausible FCE report
• Capability to provide trustworthy testimony

Don't Overpay for Workers Comp Insurance - Contact us Today!

To learn more about workers compensation insurance, contact American Insuring Group online, or call us at (800) 947-1270 or (610) 775-3848. We're independent agents who with access to many competing providers.

We'll match up your needs with the companies who can provide reliable workers compensation insurance at a competitive price. Call or click today to get started!

Maybe you’re like many employers who believe that workers’ compensation insurance is just one of those unavoidable costs of doing business and an expense over which you have little control. Good news: controlling your workers comp costs isn’t as difficult as you might think!

The following six steps could help you reduce your workers comp insurance costs by 20% to 50%, depending on how many of them you have already initiated. 

#1. Build your workers compensation program on a solid foundation

You cannot get your program underway unless everyone in your company is on board. Everyone on the management team must be committed to understanding their specific roles and the responsibilities of everyone throughout the company. This commitment from your key employees includes a thorough knowledge of how the workers’ comp system works; an understanding of experience modification rates, the formulas that produce them, and proper classification of employees is a good place to start.

#2. Pay attention to your hiring process

Competent employees tend to be safety conscious workers who are less likely to incur workers comp claims. Make sure your system for hiring brings the best into your company:

• Good interview techniques and thorough background checks will help you identify potential problems.
• Carefully review the applicant’s resume, paying attention to gaps in employment history. Ask the applicant to explain these gaps. Probe for information about the applicant’s attendance record during previous jobs.
• Conduct a complete background check after you have obtained written consent from the applicant.

#3. Make workplace safety a top priority

Safety needs to command equal status with production and quality. Train new employees to perform their jobs safely. Wellness initiatives, which reportedly return three to four dollars for each dollar invested, must be included here. Safety and wellness programs are critical in preventing claims from ever happening. Continually remind your employees to practice safety by posting reminders in common areas and holding meetings to discuss any issues affecting your staff.

#4. Set up a post-injury system

Studies of temporary and permanent disability claims reveal that timely medical treatment reduces expenses. Require employees to report all injuries, no matter how minor they may seem, and then ensure that injured employees receive prompt medical attention. Make sure that your company’s communications systems and post-injury response systems are in place and that you have an effective return-to-work program and policy that monitors your injured employees’ recovery and helps them get back on the job as quickly as possible. These are the core components of your workers’ compensation management program.

#5. Manage workers’ comp insurance claims efficiently

This might begin with using surveillance to prevent workers’ comp fraud. You’ll need to decide whether to request an independent medical examination (IME) and when to use various vendors. Planning for settlements and Medicare set-asides are important aspects of managing your claims. Your claims adjuster, armed with detailed account handling instructions, is also vital in managing claims efficiently.

#6. Control medical costs

Medical and pharmacy costs are rising at an unprecedented pace. Managing these expenses will take a substantial bite out of your workers’ comp bill. Building relationships with a medical provider, using a medical advisor, and utilizing a nurse case manager to monitor complex cases are all steps to be considered here. Also, be aware of the dangers to your injured employees from prescription drug overdose, which has become the biggest killer in the country.

No one benefits when employees get hurt on the job. With focus and effort, you can make workplace injuries less frequent, less severe, and less costly.

 

Reduce the Cost of Workers Comp Insurance: Get Help From American Insuring Group! 

Contact American Insuring Group online or call us at (800) 947-1270 or (610) 775-3848 for help in lowering the cost of workers compensation insurance for your business. 

Employers have been using cameras and video surveillance in the workplace for many years. In fact, in a 2005 survey, over half of the responding companies indicated they used video surveillance to counteract theft, violence, or sabotage. 16% of those respondents used surveillance to monitor their workers’ performance.

Still others were monitoring their employees to help prevent workers’ compensation fraud—something that could pay dividends for their companies in terms of payouts and workers compensation insurance rates.

Staging a workers comp injury caught on video

A California workers’ comp insurer had three cases in 18 months where workers’ comp fraud was proven because of videos that showed the workers staging their injuries. The videos—two from restaurant kitchens and the other in a warehouse--show the workers rearranging furniture and objects, kicking the objects, then screaming out in pain. They were subsequently taken away in an ambulance.

The videos were proof that the injuries were faked, and after an investigation, criminal complaints were filed and convictions resulted in a matter of months. There was no impact on the company’s experience rating, or a corresponding premium increase, because the cases were handled quickly, and fraud was easily proved. 

Caution: Employers must respect the laws on workplace privacy

If employers want to use video cameras to monitor employees, they must have a legitimate business reason to do so. State privacy laws will usually determine the extent at which video monitoring is considered legitimate and lawful. Yet, cameras that also record sound may be in conflict with federal wiretapping laws, with or without an otherwise legitimate reason. Most laws that limit surveillance in the workplace pertain to those areas in which there is a reasonable expectation of privacy—restrooms and break rooms, for instance. Some states also prohibit the use of two-way mirrors in restrooms, locker rooms, and similar locations.

Once a company has ascertained a legitimate need to use video monitoring, employees must be notified of the cameras, and filming must be confined to public areas. Under these conditions, the surveillance is likely to be upheld by the court. But since filming can involve privacy rights, it is critical that employers not cross the line.

Certain employee activities remain private

Other activities may also be off-limits for employer surveillance. The National Labor Relations Act (NLRB) prohibits employers from using video cameras to monitor employees' union activities, including union meetings and conversations involving union matters. Employers are required to bargain with union employees before using video surveillance in the workplace. Also, video surveillance may not be used in a manner that is meant to intimidate current or prospective union members.

Some employees have challenged employer surveillance of their activities while on leave for a medical condition or workers' compensation injury. The courts sided with the employer and denied the challenges in cases that involved clear employee abuse of leave laws. (One employee took FMLA leave to vacation in Las Vegas, while another was caught on camera working out at a gym after claiming he was too injured to work). Aside from these flagrant examples, courts would likely rule differently if an employer's surveillance drifted into private activities and effectively deterred employees with a legitimate need from exercising their legal rights.

Workplace video surveillance guidelines

Employers use video cameras to monitor employees for a host of reasons, all of which could save their businesses money. But it is important to do it lawfully. Here are some general guidelines:

• Make sure you have a legitimate reason to use surveillance
• Do so only in public areas
• Inform your employees that you have cameras in the workplace
• Do not record their conversations
• Refrain from taping union activity

Consider speaking with a labor lawyer in your area if you have additional questions or concerns. To find out more about your state's workplace privacy laws, contact your state labor department.

Lower Your Workers Compensation Insurance Costs

For more information about workers compensation insurance, contact American Insuring Group online or call us at (800) 947-1270 or (610) 775-3848.

Our independent insurance agents will help you find the best policy to meet your needs, and do it at the right price. As an independent agency, we're free to shop among many competing insurance carriers, and to provide you with the best deal on quality workers comp insurance.

Call or click today to get started!

Every day, thirty men and women across the United States are severely injured in work-related accidents. That amounts to over ten thousand workers each year who are hurt so critically that the consequences to themselves and their families are sometimes permanent. Clearly, many U.S. worksites have been hazardous to workers. Reducing workplace hazards is good for employees and a smart way to reduce workers compensation insurance claims and costs.

Until last year, the Occupational Safety and Health Administration (OSHA) was not receiving timely information about where and how most of those injuries were happening. Then, on Jan. 1, 2015, a requirement took effect that compelled employers to report to OSHA, within 24 hours, any severe work-related injury, such as amputation, in-patient hospitalization, or loss of eye.

The new requirement should enable the agency to target their compliance assistance and enforcement efforts to the areas where workers are at greatest risk. It should also help to engage more high-hazard employers in identifying and eliminating serious risks.

Some interesting findings from the requirement

After one year of the reporting program, employers had notified OSHA of 10,388 incidents involving severe work-related injuries, inclding 7,636 hospitalizations and 2,644 amputations

Not surprisingly, nearly one-half of the hospitalizations and about two-thirds of the amputations occurred in companies from the manufacturing and construction sectors.

The industry groups with the most severe-injury reports were:

1. Building exterior contractors (391)
2. Building equipment contractors (343)
3. Support activities for mining such as drilling oil and gas wells (323)
4. Non-residential building construction (271)

According to an OSHA report on the findings, most of the hazards that led to these severe injuries are well-understood and easily prevented. And they also account for a majority of work-related fatal injuries. In most cases, employers can stop these injuries and deaths with some clear-cut and cost-effective changes, including providing fall protection equipment, installing guarding over dangerous machinery, and clearly marking pathways.

Failure to report a workers comp insurance claim can be expensive

After one year of the requirement, OSHA concludes that, based on injury claim numbers for workers’ compensation, there has been some serious underreporting of severe injuries—possibly as much as 50%. To discourage this, OSHA has said that it is more likely to cite businesses for non-reporting, and it is raising the penalty for not reporting a severe injury from $1,000 to as high as $7,000. While these penalties pertain to many small and mid-sized companies that may not even be aware of the new reporting requirements, the penalty can be even more costly if OSHA discovers that an employer intentionally and willfully chose not to make a timely report. 

A safe working environment is smart for business

A better way to avoid severe injury reporting is to avoid the injury. A safe workplace should be every company’s goal. Without it, businesses faces higher workers’ compensation insurance costs, loss of employees from potentially severe accidents, and an increase in liability exposure. A safe working environment, on the other hand, saves money by reducing workers’ compensation insurance claims, and it gives OSHA fewer reasons to launch an on-site inspection of a facility—a potential money saver in itself.

Contact Us for Help in Reducing Workers Comp Insurance Costs

If you want to discuss how your business can maintain a safe worksite or if you would like to lower your workers compensation insurance premiums, contact American Insuring Group online or call us at (800) 947-1270 or (610) 775-3848. 

Many workers’ compensation insurance claims are filed as a result of back injuries, and the majority of these injuries come about because employees are not using the correct techniques for lifting.

Proper lifting methods could eliminate most, if not all, of the workers compinsurance claims associated with back injuries. Teaching these techniques needs to be part of any company’s safety program.

6 Lifting Mistakes to Avoid

Here are six of the most common mistakes your workers might be making while lifting objects and suggestions for lifting them safely:

1. Bending the back.
   Employees who lift with their back bent and their legs straight are inviting a back injury. In fact, this common mistake in lifting is actually the exact opposite of the correct method. Proper lifting is done with a straight back and bent knees, allowing the body to be closer to the object. In this way the worker is using the strength of the legs instead of straining a bent back to lift the object.
   
2. Holding the object away from the body.
   If what they are attempting to lift is dirty or greasy, employees may hold the object away from their body in order to keep themselves clean. This may make sense for their appearance, but it is a sure recipe for a back injury. Workers must be trained to keep the object they are lifting close to the body—even if it is not very heavy—to avoid straining the back.
   
   
3. Twisting while lifting.
   When lifting something from the floor to a higher level, employees will many times position themselves parallel to the shelf or table on which they will place it. This forces them to twist their body in order to set it down after they have lifted it. Using a safer technique, the worker would turn to face the higher level before attempting to lift the object, allowing the object to be lifted and placed without any twisting.
   
   
4. Losing balance while lifting.
   Workers can lose their balance in a number of ways. Having the feet too close together, picking up something that is too heavy, or attempting to lift an irregular shaped object are just a few of the causes that lead to loss of balance. Workers must be trained to place their feet at least shoulder width apart and to seek help when lifting heavy or awkward objects.
   
   
5. Contorting the body in cluttered areas.
   Sometimes the load to be lifted is surrounded by other objects that prevent the worker from making a safe and proper lift. Workers who contort the body to make a lift under these conditions are asking for a back injury. Workers should be taught to move the surrounding objects away before attempting to lift their object. A clear pathway and surrounding area are essential to a safe lift.
   
   
6. Failure to coordinate the lift with others.
   If two or more employees are attempting to lift an object when a forklift is not an option, clear communication is needed. Make sure everyone involved in the lift knows where they will be grasping the object, its intended destination, and exactly when they will lift to object. Not only can this prevent back injuries, but smashed toes and pinched fingers may be avoided as well.

Avoid Workers Comp Claims with Our Lifting Techniques Checklist

Remember, you can keep your workers safe and avoid workers’ compensation claims by training them to use proper lifting techniques including:

1. Keep the back straight during a lift
2. Bend the knees
3. Place the feet at least shoulder width apart
4. Keep the load close to the body
5. Avoid twisting the body during the lift
6. Ask for help when it’s obviously needed 

Keeping these techniques in mind will keep your workers safe and minimize back injuries; thereby, saving you on the cost of workers’ compensation insurance.

Get the Right PA Workers Compensation Insurance

For more information about workers compensation insurance, contact American Insuring Group online or call us at (800) 947-1270 or (610) 775-3848. We offer plans from competing providers, so we're positioned to help you find the right insurance and the right price. Contact us today to get started.

Opioid use and misuse by workers has become a major concern for employers and their workers’ compensation managers.

An increasing number of injured workers are being prescribed these powerful and addictive drugs to alleviate pain, but frequently the opioid use results in extended disability and additional medical issues for claimants. The overuse of these prescription painkillers is burdening the workers’ compensation system by increasing the cost of each insurance claim. 

These startling workers compensation insurance statistics attest to this:

• Average cost of a claim without opioids: $13,000
• Average cost of a claim with a short-acting opioid, such as Percocet: $39,000 (I.e., triple)
• Average cost of a claim with long-acting narcotic, like OxyContin: $117,000 (I.e., 10x)

Adding to the costs, workers’ compensation insurers are now being compelled to pay for prescriptions of buprenorphine and naltrexone, two drugs that are used to wean workers off these addictive opioids.

Opiod Abuse: A Growing Problem

State governments, insurers, and an assortment of workers’ comp stakeholders have been obliged to contend with the issue of opioid usage by injured workers in varying degrees through myriad methods. But pinning down the problem has proved to be as difficult as correcting the problem of opioid abuse itself.

Utilization of statewide databases that track opioid prescriptions, finding and punishing overprescribing doctors, and stricter controls in management provider networks are some of the solutions states have adopted - or are considering - to tackle this complex problem.

And, as opioid abuse continues to grow, it’s gotten the attention of the Centers for Disease Control and Prevention. 

“It’s a big problem, and it’s a growing problem,” said Dr. Leonard J. Paulozzi, a medical epidemiologist with CDC’s National Center for Injury Prevention & Control, which has been studying the impact of opioid overdoses, and the problem of overuse. Paulozzi views the drug problem as being potentially more prevalent among the injured worker population.

“There’s an awful lot of back injuries in the workers’ comp population and subsequent surgery related to back problems, and back pain is one of the most common indications now of use of opioids in the United States,” he said. “And it’s being used frequently for back pain and it’s being used long-term for back pain.” 

Education and communication are essential

Workers’ compensation managers are fighting a prescription drug epidemic, and the stakes are high. Failure to wage an effective battle can lead to unfortunate consequences:

• Increased costs from protracted disability, medical care, and treatment
• Increased case valuation and settlement costs, which deplete financial reserves
• Increased possibility of deaths and drug overdoses

In order for claims managers to be effective in controlling costs that result in higher workers compensation insurance premiums, they may need to seek outside help. Many are now forming partnerships with various Pharmacy Benefits Management companies that have specific expertise in effecting change. Communication is the first step:

• Educate the injured workers directly about the importance of safe treatment
• Communicate with physicians, explaining all concerns regarding opioid-based prescription drugs
• Post bulletins warning of the dangers of prescription painkillers

Good communication yields encouraging results

Results from companies that have used this system of communication have been encouraging. One pharmaceutical company saw a reduction of almost 11% in opioid usage among their workers’ compensation clients. In addition, the percentage of injured workers using long-term opioids decreased by 2.6% during the same period.

The effort makes financial sense

All studies and efforts to curb opioid usage should have a positive effect on the all-important bottom line, since the medical portion of a workers’ comp claim may be open for several years and could be open for the lifetime of the injured worker. The claims management teams need to be proactive and willing to cooperate and collaborate with the pharmacy industry in educating everyone on this crucial issue.

Contact Us for Help in Getting the Right Workers Comp Insurance 

To learn more about workers compensation insurance, and to get the right insurance at very competitive prices, contact us online or call us at (800) 947-1270 or (610) 775-3848. 

A recent study on distracted driving from in-car data collection and analysis showed that drivers spend more than half their time focused on things other than driving.

There are a variety of activities that count as distractions, and it’s estimated that these distractions contribute to more than 5,000 traffic fatalities each year. 

Here are some of the most common driving distractions, any of which can result in higher workers compensation insurance rates if they occur while on the job:

• Talking on a cell phone
• Texting
• Eating and drinking
• Attending to child passengers
• Grooming
• Reading, including maps
• Using a navigation system
• Watching a video
• Adjusting a radio, CD, MP3 or temperature controls

Your Business and Your Workers Comp Insurance Rates

When your workers are behind the wheel on your company’s behalf, their safety is your business. And since texting takes your drivers’ attention away from the road for almost five seconds (the equivalent of driving the length of a football field at 55 mph blindfolded), it is important that you prohibit them from texting in your commercial vehicles.

“It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality.” Explains David Michaels, Assistant Secretary at Occupational Safety and Health Administration (OSHA). “We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

Your Legal Responsibility to Safeguard Drivers at Work

As a business owner or manager, your legal responsibility under OSHA is to safeguard drivers at work. And it makes no difference whether they drive full-time or only occasionally to carry out their work, or whether they drive a company vehicle or their own. When OSHA receives a plausible complaint that an employer requires texting while driving or organizes work so that texting is a necessity, they will investigate and issue citations and penalties where necessary.

Your cooperation can minimize the danger to your business

Building a workplace culture of safety requires clear, explicit policies and sound practices. OSHA, which enforces worker safety laws, has joined with the Transportation Department, other agencies, key associations and organizations to enlist the help and cooperation of businesses of all sizes in a nationwide outreach, education, and enforcement effort to stop the dangerous practice of texting while driving.

Here are a few of the recommendations for employers to follow:

• Prohibit texting while driving. OSHA encourages employers to declare their vehicles “text-free zones.” Also, emphasize that commitment to their workers, customers, and communities.
• Establish work procedures and rules that do not make it necessary for workers to text while driving in order to carry out their duties.
• Set up clear procedures, times, and places for drivers’ safe use of texting and other technologies for communicating with managers, customers, and others.
• Incorporate safe communications practices into worker orientation and training.
• Eliminate financial and other incentive systems that encourage workers to text while driving.

Millions of Americans drive on the job every day, and this deadly behavior, texting while driving, has put them at risk. And that risk continues to grow as texting becomes more widespread. OSHA believes that by improving our understanding of how mental and physical distractions impair your company drivers and by educating them about avoiding distractions, we can eliminate these needless deaths and make our businesses safer while lowering commercial vehicle insurance and workers compensation insurance costs.

For more information about safe driving, commercial vehicle insurance, and workers comp insurance, contact us online or call (800) 947-1270 or (610) 775-3848.

Problems can occur when workers covered by Medicare Advantage Plans sustain workers compensation injuries and use the plan to pay for medical care.    

Congress created the original Medicare program (Parts A and B) in 1965. It was designed to offer older and disabled Americans access to affordable health insurance. With the Balanced Budget Act of 1997, Medicare Part C was born with the intention of giving beneficiaries a choice: opt for original Medicare or choose the newly created Part C plans, better known as Medicare Advantage Plans (MAP).

These plans, with coverage provided by private insurers, cover all Medicare services and offer additional benefits such as prescription coverage, dental, and vision. However, problems can occur when workers covered by these plans sustain workers’ compensation injuries and use the plan to pay for medical care.    

                                                  

Medicare and Workers' Compensation Insurance

If a worker is receiving Medicare benefits and is hurt on the job, workers’ compensation insurance (WC) is the primary payer. An insurer or workers’ compensation plan cannot, by contract or otherwise, supersede federal law--for instance by alleging its coverage is supplemental to Medicare.

WC is always the primary payer for Medicare beneficiaries’ work-related illnesses or injuries, and Medicare beneficiaries are required to apply for all applicable WC benefits. If a Medicare beneficiary has WC coverage, providers, physicians, and other suppliers must bill WC first.

In situations in which Medicare has paid for WC-claim-related care before the beneficiary has obtained a settlement, judgment, award, or other payment, those Medicare payments are referred to as “conditional payments.” They are considered conditional payments because Medicare pays under the condition that it is reimbursed when the beneficiary gets a WC settlement, judgment, award, or other payment.

Do Medicare Advantage Plans have the same right of recovery as original Medicare?

This an evolving issue in the courts, and it continues to be discussed and debated. Courts have ruled both ways on this issue. Here are some examples:

• In a Third U.S. Circuit Court of Appeals case in 2013, Humana Insurance Company, a MAP, demanded reimbursement from GlaxoSmithKline for payments Humana had made. The Court held that Medicare Secondary Payer regulations “unambiguously provide[s] Humana with a private cause of action.” Consequently, Humana’s payments were subject to reimbursement.
  
  
• The U.S. Supreme Court subsequently denied Glaxo’s petition for review, supporting the argument that MAP’s have the same right of recovery as does traditional Medicare—at least in the Third Circuit Court jurisdiction, which is New Jersey, Delaware, Pennsylvania, and the U.S. Virgin Islands.
  
  
• Later in 2013, a Ninth U.S. Circuit Court of Appeals case ruled the other way. Here, the Ninth Circuit Court of Appeals held that a Medicare Part C Plan--PacifiCare of Arizona--did not have the right, under federal law, to pursue a reimbursement claim.
  
  
• In a recent case in Florida, Humana Insurance Company sued Western Heritage for recovery of double damages. Humana argued that as a MAP they have the same right of recovery as does traditional Medicare, including recovery of double damages. The District Court ruled in Humana’s favor.

Recent rulings have created some uncertainty for employers

There is still uncertainty among insurers and employers when settling cases with Medicare beneficiaries who have ever received benefits from a MAP. Claim management departments need to consider the recovery rights of MAP’s when settling claims. The logical starting point would involve confirming the type of Medicare coverage at issue. Determine if the claimant is a beneficiary under traditional Medicare or under a MA plan.

We Can Help

For help meeting your compliance obligations, or to obtain quality worker's comp insurance at the right price, call us at (800) 947-1270 or (610) 775-3848 or contact us onlilne.

Return-To-Work programs are instrumental in enticing employees out on a workers’ compensation claim to come back to work. Many employers struggle to manage and fill the void that is left behind when a worker is out; however, a solid Return-To-Work program will encourage employees to return to work quickly (once they are cleared to do so by a medical professional of-course), thereby contributing to lower workers compensation insurance costs.

It is extremely important that the return-to-work program is well-known and understood throughout the company. It needs to be an indispensable part of the corporate culture understood by owners, managers, and employees. If you want employees to return quickly and efficiently, it needs to be a system that everyone can follow and understand.

Five Essential Elements of a Successful Return-To-Work Program:

#1) Offer employees a transitional position

Present them with a temporary job that will ease them back into the workplace while still making them feel as though they are making a difference. If their job usually requires heavy lifting, consider offering a light-duty job instead. Make sure the job makes sense for both the employee and the company, otherwise you run the risk of further loss.

#2) Make the cost of workers’ compensation very clear to all employees

Each employee, regardless of their current position, should understand how expensive workers’ compensation claims are and how it affects the organization. Most employees have absolutely no idea that companies pay a large deductible each time an employee goes out on a claim and assume the insurance company is the only one paying. Employees may feel differently if they know it is coming directly from their employer’s pocket!

#3) Remain in constant contact with the employee

Never underestimate the power of a “get well” card! There will be many outside sources, such as friends, families, lawyers, etc., trying to tell your employee what to do. Make sure you call to check in with them frequently and keep them posted on any updates or changes within the company. In most states, the company is able to direct medical care for an employee as well, which allows them to check-in with healthcare professionals to ensure that the employee is following protocol and is not being dishonest about their care or their return to work date.

#4) Make necessary arrangements to “speed up” return time, if possible within four days

90% of all workers out on a workers’ compensation claim can return back to work within four days. Whether they are returning to a transitional job or their actual position, the quicker they return to the workplace, the less expensive it is for the employer. These four days are considered the waiting period and if you bring an employee back before the waiting period ends, the company’s workers’ compensation company may not have to pay indemnity or lost wage payments, which in turn saves the company from having to pay the claim deductible.

#5) Keep employees updated on company “happenings” while they are out

Even though an employee is unable to perform their regular duties, they may be able to continue attending trainings and meetings. If they are unable to attend these sessions in person, the company may be able to skype them in, or at the very least can provide them with a PowerPoint deck or notes from the meetings. Keeping them in the loop can encourage them to return quicker and will allow them to transition back into their position more easily when they do return.

One of the keys to keeping the cost of workers’ compensation in check, is to get employees back into their position as quickly as possible. This doesn’t happen by accident; it’s important for companies to take a proactive approach.

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For more information about saving on workers’ compensation costs, contact us online or give our experienced agents a call at (800) 947-1270 or (610) 775-3848.