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Getting the Injured Worker Back to Work

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Denise Iannotti

on 7 November 2016

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Transcript of Getting the Injured Worker Back to Work

Road Map
Initial Claim Handling
Investigation/Compensability Issues
Important Filing Deadlines (Rule 5 and more!)

Managing Medical Care
Designated Providers and Change of ATP (Rule 8)
Utilization Standards (contesting medical benefits Rule 16)
Samms
Conferences & Vocational Evaluations

Bringing the IW Back to Work Bonafide Job Offers
(Rule 6)
Rule 5: Filing Deadlines
5-2:
First Report of Injury (FROI)

Must be filed with the Division within
10 days
of notice or knowledge of a work-related injury that results in (1) fatality, (2) injury to 3 or more employees, (3) an occupational disease listed in 5-2(B)(2), (4) more than 3 days of missed work/shifts, or (5) results in permanent physical impairment
Must timely file a FROI if a claim is denied for any reason
If not filed by employer, insurer must file
Must file a GAL or Notice of Contest within 20 days of the FROI
If the FROI was late, the NOC/GAL must be filed within 20 days of the date that it should have been filed
Important notes for any admission GAL or FAL
Each line should contain a zero, if there are no benefits due
Must be properly disclosed – make sure make sure all boxes are checked for service on all parties and that they match certificate of service at the end of admission
For the NOC, Respondents should note the reason for the denial, such as need for further investigation or injury not work related

Disclosure of Medical Reports
Respondents Obligations:

Medical reports must be exchanged with all parties within
15 business days
of receipt

Relevant medical reports must be attached to GAL/FAL or petition to suspend benefits

Medical reports must be exchanged within 5 business days after receiving a request for the records

Must provide information regarding wages needed to determine AWW within 15 days from date of request
Deadlines Following MMI
Respondents must file FAL or request the DIME within 30 days of receiving the ATP's MMI/IR report

If the injury only involves a scheduled rating, Respondents may file an AH to contest the rating without a DIME (Claimant can still pursue the DIME)

Within 20 days of the Division's Notice of Receipt of DIME Report, Respondents must file an FAL or an AH

Within 30 days of the FAL, Claimant must file an AH to contest any admitted issues or else the claim is administratively closed
Rule 6: Offer of Modified Employment
Must be a letter or copy of written offer delivered to Claimant with a signed certificate indicating service. Letter must contain all of the following:

offer of modified employment
setting for job duties
wages and hours
statement from ATP that the employment offered is within Claimant's physical work restrictions
Samms Conferences: Informal Discovery Tool
It is permissible for a defense attorney to conduct informal interviews with an ATP. Such interviews are limited to matters related to the claim for which the physician-patient privilege has been waived.

Claimant or Claimant's Counsel do not need to be present but Respondents' Counsel must provide Claimant's Counsel reasonable notice of date, time, and location so they may attend if they choose.

These types of conferences are permitted under
Samms v. District Court
, Fourth Judicial District, 908 P.2d 520 (Colo. 1995).

Samms
Conferences are considered informal discovery as opposed to a formal deposition on the record.

Rule 16: Contesting Medical Benefits
When does a doctor have to request prior authorization?

The process for denying a request for prior authorization

The recent trends regarding contesting medical treatment and related penalties
Recent Trends Regarding Penalties
Unreasonable delay in processing payment or denying a request for prior authorization, as determined by the Director or ALJ, may subject the payer to penalties

Parties can be fined up to $1,000 per day for each offense

Even if the payer complies with all of the Rule 16 procedures and deadlines, they could still get hit with penalties at hearing

Changes in WCRP Rule 9 reiterate that the Director can decide whether there was an "unreasonably delay or denial of prior authorization" to warrant the award of penalties up to $1,000 per day (this new rule directs parties to file Motions for Penalties)
Getting the Injured Worker Back to Work
Advanced Topics & Tools in Workers' Compensation
November 2016
Presented by
Lee + Kinder, LLC

FAL must have MMI/IR report attached w/ statement of position on maintenance care

Medical Benefits Only admission must note basis for denying indemnity benefits in Remarks section

Admission reducing/terminating benefits must have supporting documentation

Admission must be filed within 30 days of resumption/increase in benefits
Notes on Filing Admissions
Deadlines for Payment of Benefits
Benefits awarded by Order are due on the date specified in the Order.

Admitted TTD/TPD is to be paid so that Claimant receives the benefits not later than 5 days after the date of the admission
TTD/TPD is to be paid every 2 weeks

PPD is due retroactively to the date of MMI and paid no later than 5 days after the date of the admission
PPD is to be paid every 2 weeks

Respondents can credit any amount of TTD/TPD paid after MMI from the PPD award
Deadline for Lump Sum Payment
Lump sum must issue payment within 10 business days of the written request from Claimant

For lump sum request of $10,000 or less for PPD benefits, up to $10,000 should be automatically paid (minus the discount) upon the Claimant's written request
Discount calculations found as Deskaid on Division website


Terminating Benefits with a Bonafide Job Offer
Respondents must follow these steps to terminate TTD/TPD based on bona find job offer:

Send a letter to the ATP (copy Claimant and opposing counsel) with a description of the job duties, wages, and hours.

Request that the ATP (NOT a PA/nurse) sign the letter indicating that the proposed modified duty is within the work restrictions.

Send a copy of the ATP's response to Claimant and opposing counsel indicating that Claimant is allowed
3 business days
to return to work in response to the offer of modified duty.

Respondents can then file the GAL terminating TTD benefits and beginning TPD benefits based on either the acceptance or denial of the offer of modified duty.
When to use a Samms
Delayed recovery

Complex or multiple medical issues or multiple providers

Gathering information regarding MMI or anticipated impairment rating

Difficulty in obtaining timely medical records from an ATP

Medical reports that are incomplete, illegible or uninformative
Requesting Prior Authorization
Prior Authorization is required when:

The service exceeds the recommended limitations noted in the Medical Treatment Guidelines (MGT)
or
MTG requires prior authorization for the specific service
or
The service is not identified in the Medical Fee Schedule
Deny Request for Prior Authorization for Non-Medical Reasons
Must notify provider and parties in writing of basis of contest within 7 business days with certificate of service

Non-medical Reasons include:
when no claim has been filed
compensability has not been established
billed service is not related to the injury
provider is not authorized to treat, there are errors in the bill or
there is a failure to submit medical documentation

If ATP indicates in writing the reasoning why the service is related to an admitted claim, Respondents cannot contest based solely on relatedness without a medical review
Deny Request for Medical Reasons
Within 7 business days of request Respondents must:

Submit the documentation to be reviewed by a physician in a similar specialty

Send the provider and parties a letter setting forth

The medical reasons for the contest including the medical review report

The credentials of the physician that performed the review

A cite from the MTG (if applicable)

A certificate of mailing to provider and all parties

Respondents can also file an AH to contest the request and send a letter to the provider within 7 days noting that the issue will be resolved through litigation
The End
Claims Guidelines
DOWC Website
Colorado Division of Workers' Compensation Medical Treatment Guidelines

Reference Guide for Claims Adjusters for Low Back Pain and Cervical Spine

https://www.colorado.gov/pacific/cdle/medical-reference-guides-adjusters
Important! A copy of the written inquiry to the ATP must be provided to the Claimant and Claimant's Counsel by the insurer (or insured) at the time the ATP is asked to provide a Statement on Claimant's capacity to perform the offered modified duty.

Claimant is allowed three business days to return to work in responses to an offer of modified employment but some employers allow for more time.
Usually requested and set up by Respondents' Counsel

May be in person or via telephone

Usually attended by ATP and counsel for both parties, but others may attend

Notice must be provided to opposing counsel
Disclosure of Medical Reports
Claimant's Obligations:

Within 15 days of a written request, must return releases for medical and other relevant information

Must provide information regarding wages needed to determine AWW within 15 days from date of request

Procedure for setting up Samms
Requesting Prior Authorization
The requester must explain why the service is reasonably medically necessary and provide supporting medical documentation with the request

If MTG are met, no prior authorization is necessary, but the doctors often send requests to ensure payment

Prior Authorization can be granted immediately without review

Respondents MUST respond within 7 business days from the receipt of the request
Compensability Issues & Investigation
General exceptions to Compensability:

Going to and from work

Personal Comfort Doctrine

Travel Status

Quasi-Course of Employment Doctrine

Parking Lots

Recreational Activities
Interesting/Emerging Claims
Unexplained Fall

New case law has found that an unexplained fall will be compensable if the fall would not have occurred, “but for” the conditions of employment
Telecommuting & Mobile Office

Stay tuned as this is an emerging area as more claims are filed, but note that any injury sustained while in the course and scope of employment may be found compensable. These claims are often subject to jurisdictional issues.
Horseplay

Considered a “substantial deviation” from employment. It may also incorporate a safety violation.
Investigation
Surveillance

Generally a good idea but often times does not produce useful information
Recorded Interviews & face-to-face interviews

Make sure you or the interviewer knows the facts and asks operative questions. Rule 5-4(c)
Social Media

The use of Social media is an evolving topic...

It's debatable whether you can be fined for access for use for litigation purposes.

Social media investigations could expose Respondents to:
Bad Faith Claims
Invasion of Privacy Tort
Cyber Torts
Invasion of Privacy Actions
Managing Medical Care
Rule 8: Designated Providers

Workers’ Compensation Rule of Procedure (WCRP) requires very specific rules for designating medical providers for work-related injuries. Effective April 1, 2015, the law has some changes.

In all cases, a written copy of the designated provider list must be given within 7 business days following the date the employer has notice of an injury.

The designated provider list must also include: contact information for the self-insured employer or insurer of record, including address, phone number and claims contact information of the persons responsible for adjusting the claim.

New Rule increases the number of providers required for a designated provider list.

If 9 or more providers exist within 30 miles, employers now must designate the names of at least 4 physicians, or 4 corporate medical providers, or a combination of both. At least 1 of the providers must be at a different location from the other 3 and have distinct ownership.
One time change of ATP:
Per WCRP 8-5 a Claimant may request a one time change of ATP pursuant to C.R.S. §8-43-404(5)(a)(III), within 90 days following the date of injury, but before reaching maximum medical improvement.

Respondents must object within 7 business days of receipt of request.

Note: claimant may also request a change to a personal physician per WCRP 8-7.
Pitfalls for using Samms:

Can be seen as dictating medical care

Penalties for not authorizing medical care

The doctor may not give information or not change his or her opinion on request for authorization

Caution!
Bringing the Injured Worker Back to Work
Typically used when there is litigation regarding Permanent Total Disability Benefits (PPD) Benefits. May be completed by a vocational expert who is retained by either party. Will assess labor market as well as an injured skills and employment and educational background. Useful because Courts take into consideration certain factors, not just work restrictions. These factors may include such things as: education, and aptitudes, employment history, skills, geographic location, and age.

Vocational Evaluation
What if the injured worker goes back to work?

May file a GAL but should include language that the employer is able to accommodate. This may be a medical only GAL if there was never any TTD paid.

One of the following must occur:
Employee reaches MMI
Employee returns to regular or modified employment
Attending physician gives employee a written release to return to regular employment
Attending physician gives employee a written release to return to modified employment; such employment is offered to employee in writing; and the employee fails to begin such employment

When does TTD stop?
Frank takes his kids to the employment agency to teach them the family business: getting injured on the job.
Frank Gallagher's lawyer tells him that his work comp money was canceled because they have video of him jumping out of windows half naked, running from drug dealers, etc.

He bribes the agent to let him see the “special” list of the most dangerous jobs. Frank tries to figure out how he can get injured the quickest and...most importantly...least painful way.
New Rule: FAL must contain narrative, worksheets, and position on maintenance medical benefits. For Grover meds state "per the report of Dr. Smith dated 1/1/17"
For Safety Rule Violations: must attach employer rules or policy violated, and separate sheet noting facts of violation (e.g. employer statement) to FAL
Full transcript