‘Twas the Night before Mediation

(c) Teddy Snyder SnyderMediations.com

‘Twas the night before mediation
And all through the firm
Not a creature was stirring,
Not even a worm

But then one lawyer
Asleep on a couch
Shot up, hit his head
And said with an “Ouch”

Oh my, I’ve got
That mediation tomorrow
I didn’t do a brief
Much, much to my sorrow

Then what to his exhausted eyes should appear
But Mediator Snyder with news of good cheer

You don’t need it fancy
You don’t need it long
Just give me some clues
So the time’s not spent wrong

Just send me an “e”
It’s all confidential
Tell me the issues
What’s the dollar potential?

With that she was gone
The lawyer banged out a brief
He’d be ready tomorrow
Oh what a relief.

This holiday season
When your time seems too short
Turn to mediation
And stay out of court.

Happy Holidays!

 

Tactics vs. Strategy

Tactics are steps you take to win short term goals on the way to achieving your strategic objective. Sometimes tactical skirmishes distract workers compensation professionals from pursuit of their strategic goal. On the other hand, you can’t reach your strategic objective without well-thought-out tactics.

The Disputed Doctor’s Deposition
Take the case where an attorney insisted that the deposition of the doctor who provided the most recent report had to precede settlement discussions. The problem was that by the time that could happen, all the permanent disability would be paid out. After providing for future medical expense, that would leave no cash for the applicant or the attorney fees, jeopardizing the chance of a future Compromise & Release. When I pointed this out, the parties realized that a tactical victory could prevent achieving the strategic goal. The case C&R’d.

The Tale of the Two Interpreters
I arrived at a recent mediation to find the attorneys at loggerheads because both had ordered an interpreter. Both interpreters were court-certified. I convinced one of the attorneys that agreeing to dismiss the interpreter that attorney’s office had ordered would create a negotiating advantage. In the give-and-take of negotiation, opposing counsel might well feel beholden to make the next concession. Conceding the interpreter battle demonstrated the attorney’s reasonableness and set the stage for a productive mediation. The case C&R’d.

A litigation plan should be more than a checklist. Every tactic should further the effort to achieve the strategic goal.

Understanding Insurance Reserves

 

Understanding insurance reserves can help settle a claim. A reserve is a pot of money set aside to pay for a specific expense category. Typically, there are separate pots for indemnity, medical and med-legal expenses.

Sometimes a negotiator finds that a claim can be closed for an amount more than remains in the indemnity and medical reserves. However, part of the settlement can be classified as a med-legal expense. By spending the money from the med-legal reserve, settlement can be achieved while staying within current reserve limits.

Ghosts, Goblins and Mediators

Halloween is just around the corner, a time when people love to be scared. It’s fun, because everyone knows there’s really nothing scary at all.

Mediation isn’t scary. Yet some claim and legal professionals fear it.

Fear of losing control
Adjusters and attorneys know their jobs. They may bristle at the idea of someone else getting involved in the settlement process. Yet, they don’t hesitate to call in other experts.

Claim and legal professionals retain control in mediation. Only the parties can choose an outcome. The mediator cannot order anyone to take any action. What the mediator can do is help parties define issues, resolve differences, and see new routes to settlement.

Fear of looking bad
Some professionals worry that calling in a mediator makes them look like they couldn’t do their job. On the contrary, professionals who use every tool in their arsenal look smart. Referring a claim for mediation can short-cut litigation, saving time and money. This makes you look like someone who knows how to get things done.

What are you scared of?
You don’t need a costume, and you don’t need a candy bucket to get started.  Treat yourself to mediation to move that difficult case forward.  Mediation can benefit all parties, and that’s no Halloween trick.

How Medical Identity Theft Affects Claim Resolution

Medical identity theft occurs when a thief obtains treatment using the victim’s social security number or health insurance identification number. Authorities also report arrests of care providers who have stolen medical identities and submitted bills for treatment they never performed.  Cyber-attacks on medical data have produced a market for this kind of information.
Treatment 
A theft victim’s biggest risk is improper medical treatment due to provider reliance on an incorrect medical history. The victim could end up with a transfusion of the wrong blood type, an incorrect prescription, or ineffective treatment tailored to the wrong facts. If inappropriate treatment of an industrial injury results in the need for further medical care, the additional care will also be an industrial treatment expense.

Payment for Treatment 
Injured workers may not know their medical identity was stolen until their treatment request is denied. When medical records show non-industrial causation of the subject condition, a carrier may deny treatment. Records might also show a prior industrial claim for the condition now under review. If the injured worker denies such prior treatment, medical identity theft could be the cause of the discrepancy.

When an injured worker claims medical identity theft is the reason for a record of prior treatment, record reviewers should pay close attention to notes of contact information for the patient and family members, height, weight, age, and other telltale features which could confirm or weaken a claim of medical identity theft.

Employers facing a claim of medical identity theft will have to use a rule of reason and tread carefully. As with other denials, once the injured worker starts treating non-industrially, the employer loses control of the treatment and may end up paying much more than if the condition had been treated within the Medical Provider Network.

medical-identity-thief
Apportionment
When the injured worker sustained a prior disabling injury, the percentage of disability payable on the current claim will be apportioned. But what if that prior injury was to someone else using the current claimant’s identity? Parties will need evidence about the prior injury and treatment including the injured worker’s actual location and activities on the relevant dates.

Liens
Given the market penetration of some medical providers (such as Express Scripts), a claim could trigger issues relating to bills incurred for stolen treatment. CMS might respond to a submission for MSA approval with a reimbursement request for treatment provided to the thief.

Separating Medical Record Histories
The identity theft victim will bear the burden of cleaning up the medical record history, including notification to care providers, credit agencies and possibly law enforcement officials. This task is another source of stress at what is already a stressful time for an injured worker.

The employer needs a complete medical history relating to the industrial injury and usually obtains the relevant records by subpoena. Once the theft is discovered, new privacy issues may arise in obtaining those records.

What If The Injured Worker Is The Thief?
Sometimes an undocumented worker avoids detection until there is an industrial injury. Medical treatment planning can disclose a medical history at odds with the known facts of the injured worker’s life. In California, the injured worker will be entitled to treatment of the industrial injury. As with the identity theft victim, disentangling the two medical histories can complicate the treatment plan.

Get “In Pro Per” Claims Off The Books

You know the claims I’m talking about: the really old claims where the Injured Worker is representing himself/herself. Let’s call them “in pro per”s.  Active in pro pers file one court paper after another, causing the insurer or self-insured employer to fund what seems like a never-ending stream of money to send a representative to the Board. The in pro per’s papers may not state a recognizable claim. Pressed for time, the Information and Assistance officer may give the in pro per short shrift.  Defense attorneys with varying degrees of patience usually do, too.

But what if what the parties really need is a sort of an interpreter, a mediator.

Mediating an in pro per’s claim demonstrates respect for the in pro per.  The feeling of lack of respect and inability to get heard is often what drives the in pro per to keep summoning the employer to court.

“Why would I waste time and money on a worthless claim?” you may ask. Because you’re spending time and money now, and mediation is a way to end that endless cycle.

Sometimes the in pro per has a bona fide complaint, but without professional assistance has not been able to communicate it. The neutral mediator is often able to re-state the concern in a way the parties can address and put past them. The mediator can help each party see the other side’s point of view.

Are You A Rule-Breaker?

Workers Compensation professionals have to know a lot: the California Labor Code, Title 8 regulations, state and federal rules governing health care entitlements. To make things even harder, the rules of this highly-governed road keep changing. Workers Compensation may be the most intricate, heavily regulated area of practice. These rules can constrain the parties’ ability to negotiate satisfactory settlements.

You only have to know one rule about mediation: everything that happens within the mediation, including pre-mediation and follow-up communication, is confidential.  You don’t have to share your mediation brief with the other side if you don’t want to. In mediation, in contrast to WCAB practice or arbitration, you can get creative. You can break the rules.

 Mediated agreements can include provisions a WCJ could never order, such as agreements relating to actions in other forums.  You can settle claims which haven’t been made yet.  Parties can use creative solutions like structured settlements and medical care trusts. The mediator can help you brainstorm.

As mediator, I help parties settle cases.  There are no rulings in mediation, so no one loses.  Go ahead, let’s break some rules– and settle the case.

HOW POLITICS DRIVES UP THE COST OF YOUR MSA

For President George W. Bush and Congress to get Medicare Part D drug coverage passed in 2003, they had to make significant concessions to big business, including the drug industry. One of the law’s provisions forbids the government from setting rules for negotiating better drug prices. The “noninterference” section says:

In order to promote competition . . . the Secretary [of Health and Human Services]:
(1) may not interfere with the negotiations between drug manufacturers and pharmacies and PDP [Prescription Drug Plan] sponsors; and
(2) may not require a particular formulary or institute a price structure for the reimbursement of covered part D drugs.
42 USC 1395w-111(i)

The result according to a new policy brief from the Carlton University School of Public Policy and Administration is that Medicare Part D plans pay on average 73% more than Medicaid and 80% more than the Veterans Health Administration for brand-name drugs. If Part D plans could negotiate drug costs the way Medicaid and the VA do, savings could reach $16 billion a year.

The study shows that the average per capita expenditure by Americans for pharmaceuticals is more than double the average of 32 other industrialized nations. Contrary to their publicity, American drug companies do not devote the wealth gained from Part D on new research initiatives. Half of new medical research initiatives come from non-profit entities such as universities. Rather, drug companies have spent their millions in recent years on increased lobbying. If drugs costs decreased, Medicare beneficiaries could expect Part D premiums to also decrease.

Although private insurers pay Part D medical expenses, workers compensation professionals are painfully aware that anticipated Part D-covered expenses must be included in a Medicare Set-Aside. The increased use and rising cost of pharmaceuticals has torpedoed many a proposed workers compensation buy-out. If the purpose of an MSA is to protect Medicare, why are Part D expenses which are paid by private insurers included in the allocation anyway?

Casualty insurance companies and the American Association for Justice are big political players. With the 2016 election cycle coming up, now would seem to be the time for their lobbyists to twist some arms to modify the noninterference provision for the benefit of all Americans.

If you like it, then you have to put a ring on it.

If you like it, then you have to put a ring on it. In the mediation context, that means documenting your agreement.


It’s a good idea to bring a partially completed Compromise & Release form to the mediation.  The document can be completed and signed on the spot. This is efficient and forestalls buyer’s/seller’s remorse (subject to WCAB approval). This would be true for a Stipulation as well.

Sometimes the parties’ agreement is more limited. Mediations can address narrow issues, such as whether a body part will be considered part of the industrial injury or what was the Average Weekly Wage.  Document that agreement with a Memorandum of Understanding. The mediator can help you make sure to cover all the issues.

YOU CAN’T SETTLE IF YOU DON’T KNOW THE ISSUES

HOW MANY PIECES ARE THERE TO THE SETTLEMENT PUZZLE?  
Answer:  Probably more than you think.

The more issues there are in a negotiation, the greater the opportunity for give and take across issues. This adds flexibility for parties to shape a settlement acceptable to all. Trading across issues in negotiation is called “logrolling.”Every case has its own unique issues. Here is a partial list, some obvious, some I have seen people miss.

INCOME ISSUES
  • Disability percentage, including whether the disability is caused by an industrial injury
  • Apportionment
  • Applicable Date of Injury
  • Past payments- when were Permanent Disability payments supposed to start? Was the right rate used? Were past payments properly characterized as PD- or should they have been TD, Temporary Disability. Is there a TD overpayment?
  • If Life Pension payments will be due, when should they start?
  • Average Weekly Wage- Have you taken into account overtime and the value of non-cash compensation?
  • Ability to perform future work
  • Return to Work issues- will the employer provide modified work?
  • What about training? Check the new California law about computer purchases.
  • Liens
  • Penalties
MEDICAL ISSUES
  • What are the accepted body parts?
  • What expenses are reasonable and necessary? This can include issues about support services.
  • What is the appropriate medical specialty?
  • Is the treatment the Applicant wants compensable?
  • Is the Applicant’s over-all medical condition likely to shorten life expectancy?