Tag Archive for: Claim management

Turn Workers Comp Straw Into Gold

Remember the story of Rumpelstiltskin, a little man who could turn straw into gold? The mediation process does the same thing. When provided with the basic ingredients, the mediator can create gold: a win-win settlement.

But the parties have to provide the “straw”:
 
An Open Mind
One reason a case stays open may be that parties are not paying attention to what the other side views as important. Try to discard pre-conceived notions of what the other side needs and come to mediation willing to listen.

Preparation
What does your side really need to settle this case? Is it purely a dollar figure—or are there non-monetary concerns?  Which issues must parties resolve for settlement to happen? Communicating those issues to the mediator in advance makes for an efficient mediation.

A Willingness to Settle
The right people need to be at the mediation with adequate authority. Parties need to spend time calculating a reasonable settlement range in light of all factors before negotiation can bear fruit—or gold. The decision-maker must be at the mediation as well as any necessary support people. That might include family members, clergy, or other advisors to the injured worker, a nurse case manager or structured settlement broker for the employer. If the decision-maker can’t/won’t close the deal without the support person’s input, that person needs to be there or at least available by phone. Coming to mediation with the right people and proper authority shows respect for others at the table and enhances the opportunity for a good result.

When everyone brings the right straw to the bargaining table, they are likely to walk away with a golden settlement. Rumpelstiltskin is the bad guy of his story, but your mediator can be the hero of yours.

3 Reasons Why Mediation Is Better Than An Informal

Privacy Issues When Predators Cause Comp Claims

In the #MeToo and #TimesUp era, employees may be more ready to assert sexual aggression claims than in the past. These situations could lead to a workers compensation claim, a civil suit or even criminal proceedings. Privacy is an issue in each setting, but only in comp is the claims professional engaged in the victim’s medical treatment. Privacy issues merit consideration throughout the life of the claim, including at time of resolution.

The applicability of SB 863 and Labor Code §4660.1(c) regarding the compensability of psych claims is outside the scope of this post.

Who is the adjuster?
Advocacy based claims handling emphasizes empathy with the injured worker.  Adjusting a claim for physical injury from rape, actual or attempted, or a psych claim arising from sexual aggression may call for special attention to who will see the injured worker’s records.  A female adjuster may be best suited to handle a woman’s claim.  But reports of Kevin Spacey’s and others’ behavior remind us this problem is not limited to aggression against women.

An important concern with #MeToo claims is to avoid a string of claims personnel who have access to the injured workers’ medical records as they make treatment authorization decisions. Some companies have procedures to limit access to sensitive records. However, the longer a case is pending, the more likely it is that multiple people will need to see these records, possibly causing additional stress for the injured worker.

Confidential Resolution
As with all other workers compensation claims, early resolution is best. Mediation is the most private place to resolve sexual aggression claims.  Unlike with an informal meeting, mediation confidentiality is mandated by law.

A WCAB hearing may create additional psychological issues for someone who has had these experiences. Assure that person or their representative that participants are barred from disclosing what happens in a mediation in other forums.

Additionally, caucusing enhances a claimant’s privacy. Once I have separated the parties into separate spaces,they can talk to me without fear that anything will be communicated to those in the other room without their permission. As the mediator, I can reframe the injured worker’s concerns to maximize privacy. This environment facilitates case settlement.

Mediate to Comply with this Regulation

Ready to file that DOR?  Not so fast. If you can’t show you tried to settle, you may be wasting everyone’s time.
Mediation Shows Readiness
8 CCR §10414(d) requires that “All declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declaration of readiness to proceed, and shall state with specificity the same on the declaration of readiness to proceed…. [emphasis added]”The way to show a genuine, good faith effort at resolution is to mediate the disputed issues.   Here’s how you meet the regulation’s requirement to state with specificity:”The parties attempted to resolve the described dispute through mediation with mediator Teddy Snyder on [date].”

How often will you need this language? Almost never. The reason is that once parties mediate their dispute, more often than not they resolve it.

Convening
Convening, the process of getting everyone to agree to a time and place to mediate, can be the trickiest part. Some practitioners remain unfamiliar with mediation. They may confuse it with arbitration. We are all afraid to try new things, sometimes even when clients tell us to. You need to communicate your readiness to resolve the issues in a setting where those issues can be fully explored and the parties are in control of the outcome. Mediating is the win-win choice.

Convening is best done by the attorneys, though the mediator can assist. If you are still trying to get the other attorney’s attention, you may indeed have to file that DOR. Once you get a response, even if it takes going to the Board, immediately suggest mediation as a way to cut to the chase, resolve the issues and avoid future unnecessary Board appearances.

New Year, New You? It’s Your Decision

“New year, new you.” How many times have we heard that one?

Yet, the same problems that vexed us in December are still there in January. You may be planning to lose weight, save money, or spend more time with family. But what are you doing about a new approach to resolve your ugliest workers compensation claims?

Start by identifying claims that are ripe for closure. Look at the injured worker’s birth date; if the injured worker has reached age 61 and isn’t already on SSDI, it’s time to get serious. Is the claim more than five years old? Are you spending time and money with frequent WCAB trips?

Workers Compensation professionals often have a to-do list which actually impedes claim closure. The content of that additional report may be completely predictable. You could settle without it. Meanwhile frustration, disputes, and expense increase.

Call me to talk about whether the time is right for mediation. There’s never a charge for that discussion.

Counting Our Blessings

Particularly at holiday time, many of us consciously count our blessings. I recently participated in a study group that looked at the question, “What is a blessing?” For me, the all-encompassing blessing is safety and security. You could call it “peace.” That includes being grateful that I have not suffered a disabling injury or illness.
 
The Blessing Of Peace
Perhaps the most familiar biblical reference to blessing is the priestly benediction in Numbers 6:24-26:
“The Lord bless you and keep you;
The Lord make His face shine upon you, And be gracious to you;
The Lord lift up His countenance upon you, And give you peace.”
Our group looked at a few sources, including Genesis 12:2 where G-d tells Abraham, “You shall be a blessing.” The conclusion we finally reached was that being a blessing is not about asking for stuff; it’s what you do for other people. Being a blessing to others can bring peace to them and to you.
Mediation Brings Peace
Many of us spend our days confronting conflicts and trying to resolve them. Controlling the conflict in our lives is a way to achieve peace for ourselves and others. Some mediation participants will actually say they are buying their peace. Unlike in a court proceeding, the parties are in control in mediation. Mediation can get people to resolution quicker.
I am grateful I can help bring peace to mediation participants. Try thinking about techniques to bring more peace (closure) to what we do. You shall be a blessing.

 

Motivation For Advocacy Based Claims Handling: A New Idea

Pictures of injured workers.

That’s it.

I recently finished reading Pre-Suasion by Robert Cialdini. He relates the story of a group of management consultants who were working at their client’s site in a glass-enclosed conference room. They were tasked with designing incentive programs to reward employees for reaching goals. Rather than being distracted by the activity they could see around them, the ability of the consultants to see the people they were designing for led to a more successful result. They felt a unity with those people. Once this was realized, they placed pictures of workforce members around later on-site workspaces with the same result.

What if claims offices were decorated with pictures of people representing injured workers? This could be pictures of people with disabilities, such as people in wheelchairs, people getting into a medical transportation vehicle, people as patients. Mix in headshots of a diverse group of people.

Cialdini’s research tells us that claims professionals are more likely to feel unity with people they can see. By the way, he also says that those sentimental motivation posters actually succeed. Who would have guessed?

Perhaps no one is marketing images just this way, but it seems like it would be pretty easy to create an appropriate collection. This seems like an inexpensive way to determine if viewing images of injured workers can produce more effective advocacy based claim handling.

What do you think? Would management give it a try?

Why An Injured Worker Is Like Aaron Burr

Hamilton, the ground-breaking musical about colonial forefathers, is finally coming to Los Angeles in August. But maybe you’ve been experiencing a version of that story. Like Aaron Burr, injured workers want to be in the room where it happens [sorry if you encounter an ad at this link]. Instead, they are frequently shut out of discussions and proceedings about their claim.
 
Ignorance breeds resentment
Go to any WCAB location and you will see a waiting room full of injured workers. Many more injured workers with claims on the calendar are not in attendance. Settlement discussions may occur in courtrooms, cafeterias and even hallways. Injured workers are usually not included in these discussions.

No injured worker should waste time traveling to a Board when nothing will happen. On the other hand, injured workers want to sit in on their attorney’s negotiations. If the injured worker is already at the Board, shutting out that person can foster mistrust.

The Best Place for Settlement Discussions
Mediation provides a forum for the injured worker to listen and participate. Including the injured worker conveys respect and can avoid a problem later.

Likewise, the presence of a representative from the employer’s side shows a seriousness of purpose. That representative will get a better picture of the negotiation by being in the room where it happens.

Regardless of which side an attorney represents, counsel will want to prepare the client for mediation. That includes a preview of how mediation works. Counsel may want to coach clients to be temperate in their comments. In joint session or when the mediator is present, client or counsel can ask for time for a private discussion with each other at any point.
Multiple Rooms
Typically there are at least two rooms where it happens, because each side is in its own caucus. As mediator, I shuttle between the rooms to speak with lawyers and their clients. Sometimes I speak only with the attorneys (often in the hall), and attorneys can request to speak privately with the mediator or with the mediator and opposing counsel. When counsel returns to caucus, the client can provide immediate feedback—assuming the client is in the room where it happens.

Mediator Proposals

I see cases– sometimes years later– where the parties were oh-so-close to settling when negotiations broke down. Nobody would compromise their bargaining position to give that last inch, and they didn’t have a mediator to help them bridge the gap.
A Secret Response To An Offer Nobody Made
A “mediator’s proposal” works like this. I come up with a figure, sometimes with conditions such as CMS approval, which I believe will settle the case. Neither party has made this settlement offer, but, based on the negotiations which have occurred so far, it is a figure I believe all parties can accept.The mediator’s proposal depends on confidentiality. Parties are in separate rooms at this point. These separate sessions are called “caucuses.” I have always communicated my mediator’s proposals aloud in the caucus room, but some mediators write the proposal on two pieces of paper (one for each side) and sometimes put them in envelopes to be opened once the mediator has left the caucus.

If both parties accept the proposal, we have a settlement. (Hurray!) If one party accepts, but the other does not, there is no settlement, and the refusing party never learns that the other side accepted. I only tell parties there is no settlement. If both sides refuse, I tell them there is no settlement, but, again, parties do not know if the other side accepted the mediator’s proposal.

There are many benefits of the mediator’s proposal. Principally, no one has forsaken their last offer to settle. If a mediator’s proposal does not succeed, the parties can continue negotiating from their last position.

Blame it on the mediator
The mediator’s proposal allows mediation participants to save face. “It wasn’t our idea; it was that darn mediator’s.” Sometimes attorneys hesitate to be completely forthright in their recommendations to their clients, particularly if they are the second or third attorney on the file.  The mediator’s proposal opens the door for a frank discussion while allowing the attorney to shift responsibility to the mediator for an idea the client may find distasteful.

Mediators don’t stick their necks out to come up with a proposal unless they are pretty sure it is going to be accepted.  These things don’t happen early in the mediation.  More likely, you will see a mediator’s proposal when it looks like parties are heading to an impasse. Because my mediator’s proposal is a reflection of the parties own negotiation to this point, it is generally accepted.

The Elephant in the Mediation Conference Room

Sometimes the issues the lawyers and adjusters are discussing are not what is most important to the Applicant.

Recently, in a pretty small case, the professionals told me the disagreements were about what had been paid and what was still due. The injured worker told me his biggest concern was that, although he had returned to modified duty, the employer had told him there was no more work for someone with his disability. The injured worker was terrified that he would be out of a job with no ability to get another one, but that is not what the lawyers were discussing.

Many times, the injured worker’s biggest issue is not one that is dispositive of any issue in the case, but, in fact, is the driver for the injured worker’s decisions– the proverbial elephant in the room the negotiators are trying to ignore.

Because these are often personal matters, the injured worker may not share these concerns with the employer’s side– or even the injured worker’s own lawyer.

  • The woman with a sick teen-aged son who desperately wanted to control her own industrial medical care, but was afraid that if she C&R’d her case, the lump sum payment would result in the family’s loss of Medi-Cal which provided care for the son.
  • The man suffering from non-industrial cancer whose biggest concern was leaving an estate to support his wife.
  • The injured worker who wanted to return to his home country, but feared that expressing that desire would diminish the value of the claim.

These issues can often be discovered and resolved through mediation. Parties can express their concerns to the mediator confidentially. Once the mediator knows the real issue, the mediator can often re-frame the issues to allow the parties to reach resolution– all without breaching confidentiality.