WC LITIGATION Presented by Aimee AbergTraining Coordinator LITIGATION

WC LITIGATION Presented by Aimee Aberg-Training Coordinator

LITIGATION PROCESS

LITIGATION PROCESS OVERVIEW 1) Notice of Appearance – Claimant Attorney (Defense will also file NOA) 2) Request to Produce 3) Response to Request to Produce 4) Petition for Benefits 5) Response to Petition for Benefits 6) Order Assigning Judge of Compensation Claims 7) Notice of Mediation, Pre-trial Conference and Final Hearing 8) Mediation 9) Pre-trial Conference 10) Final Hearing

DISCOVERY Discovery noun dis·cov·ery dis-ˈkə-v(ə-)rē is a pre-trial procedure in a legal action or proceeding in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for production of documents, depositions, subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery. We use the discovery process when developing our plan of action and strengthening our defenses by obtaining evidence.

WORK PRODUCT The “work product” privilege or doctrine protects documents and papers of an attorney or a party prepared in anticipation of litigation regardless of whether they pertain to confidential conversation between attorney and client. The work product doctrine prevents a party from preparing its case through discovery of the investigatory work of its adversary. Voluntary disclosure of material that is work product results in the waiver of the work product protection. Examples of work product include surveillance reports, ISO claim search results, correspondence with defense attorney, some correspondence with client and adjuster notepad.

REQUEST TO PRODUCE When compiling documents for response to claimant attorney request to produce, we should be careful not to include work product. We can also obtain/request copies of client personnel documents like claimant resume and application for employment for our claim file. Client will also need to provide copies of actual payroll documents to support the 13 week wage statement. You should take this opportunity to confirm that the wage statement was completed accurately. Any discrepancies should be addressed and defense can assist with this process. E/SA can also file a Request to Produce. For example, if claimant claims to have concurrent employment for which he is entitled to an increased AWW/CR, we can request copies of prior years W-2 s. Either party’s failure to provide response to request could prompt filing of a Motion to Compel.

SAMPLE RESPONSE TO REQUEST TO PRODUCE

NEW LEGAL CLAIMS

LEGAL CLAIM TRANSFER CHECKLIST Legal Screens in AIM 2. 0 should be updated to reflect Claimant Attorney and Defense Attorney contact information. Adjuster should complete an independent audit of the claim within 30 days of transfer to Legal. Audit should be comprehensive from day one of claim to present. Reserves should be re-evaluated and set based on exposure including legal fees and investigation. Any legal pleadings should be updated in the Legal Calendar in AIM 2. 0. Wage statement should be reviewed for accurate calculation. Confirm AWW/CR has been updated in Weekly Wage Screen. Confirm indemnity benefits have been paid correctly. Is waiting week due and has it been paid? Were previously paid indemnity benefits recalculated when wage statement was received?

LEGAL CLAIM TRANSFER CHECKLIST Client may or may not want to immediately assign defense. Complete Defense Referral and request Team Assistant compile copies of entire claim file. Review indemnity benefits to confirm payments were issued timely. Discuss any possible penalties and/or interest due with Claim Supervisor P & I Calculation Review Interest due when payment is 1 day late at rate 12% per year, or. 03287 per day. Penalties due when payment is more than 7 days late at rate of 20%. Note: Entitlement to penalties may be argued when indemnity benefits have been issued for a period but we determine that an additional amount is owed. Manager approval is needed before issuing any interest or penalties.

PETITION FOR BENEFITS Overview

PETITION FOR BENEFITS 101 Claim Supervisor should review and approve response to Petition for Benefits before it is e-filed on the OJCC website. Client specific litigation requirements/procedures should be adhered to such as defense attorney review and approval for response to Petition for Benefits or defense attorney providing response wording. Attorney fees attach 30 days after a Petition for Benefits is filed. In other words, if benefit(s) is/are provided within 30 days, there is no claimant attorney fee entitlement. A Petition for Benefits should be dismissed if it lacks specificity. You should include this in your response and your defense attorney should follow up by filing a Motion to Dismiss. The Statute of Limitations defense must be raised on the initial response to a Petition for Benefits. Mediation, Pre-Trial Conference and Final Hearing are automatically set when PFB is filed.

PETITION FOR BENEFITS RESPONSE 101 List each benefit request, then list response to each. P. I. C. A. = Penalties, interest, costs and attorney fees are not due or owing. Employer/Servicing Agent reserves the right to these and other defenses which may arise in the future. Employer/Servicing Agent reserves the right to raise any and all defenses as they may arise and not limited to Statute of Limitations defense. The rights of the E/SA to raise these and any other defenses as they become known is expressly reserved. The Employer/Servicing Agent reserves the right to recover costs should they be the prevailing party.

OUTSTANDING ISSUES

IDENTIFY OUTSTANDING ISSUES List the issues on the Petition for Benefits. Determine the status of each request listed. For example, if request is made for authorization of an MRI and the MRI has been authorized/scheduled, this issue has been resolved. If another issue is payment of TTD/TPD from date of accident to present and continuing and there is a period of time for which TTD/TPD has not been paid, then this issue is outstanding. Even if it seems clear to you that a benefit is not due or owing, the issue is still outstanding. For example, if TTD/TPD ended when claimant reached MMI, but there was no work available for claimant, our defense would be the claimant is no longer entitled to temporary indemnity benefits. The claimant attorney could argue that the claimant had not reached overall MMI based on the opinion of an IME physician and is entitled to TTD/TPD benefits.

OUTSTANDING ISSUES Claimant attorney should file a Voluntary Dismissal of Petition for Benefits if all issues have been resolved. Mediation, Pre-Trial Conference and Final Hearing are automatically cancelled when PFB is withdrawn. If claimant attorney withdraws Petition for Benefits, it will be with or without prejudice. Without prejudice means without detriment to any existing right or claim. In other words, the claimant attorney reserves the right to claim entitlement to attorney fees. With prejudice means it is dismissed permanently. Any PFB that has been dismissed without prejudice will continue to toll the statute of limitations. Therefore, defense should push claimant attorney to resolve any outstanding attorney fees as soon as possible if there are not other ongoing issues.

STOP THE CLOCK Attorney Fees Resolution

ATTORNEY FEES AND COSTS If we determine that claimant attorney is entitled to fees and costs, we should agree/stipulate to the entitlement to stop the clock on continuing to accrue fees and costs. Castellanos Decision means standard is “reasonable” attorney fees. We can start with the statutory guideline fee but if the claimant’s attorney can establish that the application of the stat fee schedule will be “unreasonable” then the JCC can award a reasonable hourly fee. Miles v. City of Edgewater means claimant attorneys can collect fees from their client based on a fee retainer agreement.

DEVELOP A PLAN OF ACTION

TIMELINE & DECISION – SETTLE OR LITIGATE You should have a plan of action to address issues and strengthen our defenses as soon as you respond to the petition for benefits. But the plan of action should be clearly outlined in notepad at least 45 days prior to mediation. What evidence do we need to obtain to prove our case? Who are the “players” that we need to involve in the decision making process? What is our schedule of legal events? Do we need to schedule time with experts, physicians, attorneys, etc? Who needs to provide settlement authority? Is MSA needed? CMS approval? Is there more than one claim to be settled?

SETTLEMENTS Settlement should always be considered when developing plan of action. Option should be presented to client for their consideration. Determine if Medicare Set Aside (MSA) is needed to adequately protect Medicare’s interests. Adjuster should complete settlement evaluation independent of the defense attorney settlement evaluation. Claimant’s Release and Resignation will be required with any settlement. Therefore, if settlement agreement is reached at mediation, claimant should not return to the client premises. Consider offering an advance on the settlement of $2, 000. 00 to cover claimant while settlement is being finalized.

SETTLEMENTS A mediation agreement is a binding contract. If any party back outs of agreement, they may be subject to a Motion to Enforce. Be sure any contingent factors are clearly outlined in mediation agreement. Special Funding Request should be submitted to Pay Department immediately when settlement agreement is reached, not when settlement is approved. Defense attorney should provide a copy of the settlement documents draft before forwarding them to the claimant attorney. Review the documents based on Johns Eastern’s recommended wording. Defense should obtain your approval prior to e-filing settlement documents with OJCC to enable you to confirm funding has been received. PY filing is due within 14 days of JCC’s order.

SETTLEMENT AUTHORITY Settlement authority should be obtained well in advance of mediation. If additional settlement authority is needed, settlement can be made on a contingent basis pending additional authority. Depending on the amount requested, the excess carrier adjuster may need an extended period to obtain settlement authority from their management team. Settlement authority is required from an excess carrier even if a minimal amount will be needed above the SIR. Any amount requires prior authorization. Excess carrier may agree to “pre-fund” settlement to avoid client having to cover settlement costs up front and then request reimbursement. Reserves should be consistent with anticipated settlement range.

SETTLEMENT CHECKS QA Manager approval needed before any settlement check can be issued. Settlement checks should be issued under pay types Settlement Indemnity – I 12 Settlement Medical – M 40 Annuity – M 46 Stipulations including claimant attorney fee stipulations should be issued under pay type Award Order – Agreed Stip – I 18. Settlement checks should be made payable to claimant AND claimant attorney under claimant’s SSN. Only attorney fee stipulations should be made payable to claimant attorney directly under their tax id number. Multiple claims – PY may be needed under other claims as well if issuing checks under one claim.

DEPOSTIONS Claimant deposition should always be scheduled when PFB is filed. If a PFB has not been filed or has been dismissed, you can still recommend the claimant’s deposition. However, we would be responsible for an hourly fee to the claimant attorney for their attendance at the deposition. Claimant questions should include prior medical history, work history, education and any training. Claimant attorneys may schedule the adjuster deposition in response to the E/SA setting the claimant deposition. Be sure to advise defense if you are being deposed for the first time so they can help prepare you. Defense should also schedule a pre-deposition conference with you to review issues that they anticipate will be covered in the deposition. Defense should provide a summary of the claimant deposition for the claim file. You should document the pertinent facts in the notepad summary.

DEPOSITION TIPS Request your supervisor reserve a conference room for you. Advise reception that a court reporter will be coming to the building. If claimant attorney chooses to depose you in person, your defense attorney should also appear in person. Keep your responses short but concise. If yes or no will suffice, respond in that manner. Answer just the question being asked. Do not elaborate. Pause before responding to a question to allow your defense attorney an opportunity to object.

FORMS DWC-14 – Request for Social Security Disability Benefit Information Obtaining a response from the Social Security Administration is the definitive means of confirming a claimant’s Social Security Disability claim status. You must obtain a DWC-14 in order to calculate the SSD offset. DWC-19 – Employee Earnings Report You should request a DWC-19 at least monthly when paying TTD/TPD benefits. You should also request DWC-19 periodically on PTD claims. You should consider suspension of indemnity benefits if the claimant fails to return signed/dated DWC-19 s. Medicare Recipient Questionnaire A claimant must return a signed/dated Medicare Form confirming their name, date of birth and social security number. Your defense attorney should bring a Medicare Form with them to mediation if the claimant has not previously completed it.

ODDS AND ENDS Evaluate the “back” benefits exposure and attorney fee exposure. Surveillance should be considered to confirm claimant’s activity level. Consider other investigative techniques such as hospital sweeps, pharmacy sweeps, social media monitoring and subpoenas. Consider vocational assessment if clamant has reached MMI and permanent restrictions have been determined. Recommend FCE if needed. Obtain a present value PTD run based on 4% discount, if necessary. Obtain annuity quotes as needed. Recommend several options be run in terms of guaranteed periods. Consider pre-mediation conference with client, defense attorney and excess carrier.

MEDICARE SET ASIDE Has claimant applied for or is receiving Social Security Disability? Is claimant 62 ½ years old or older? Is settlement amount over $100, 000? Does claimant have end stage renal disease? Is your total anticipated settlement $5, 000. 00 or less? Have the supervisor on the account run a manual query on CMS website. Some clients require you to obtain their approval before requesting an MSA be completed. Cost is approximately $2, 500.

CMS APPROVAL OF MEDICARE SET ASIDE Claimant is current Medicare recipient AND total settlement is $25, 000. 00 or more (including attorney fees/costs) Clamant is likely to become a Medicare recipient within next 30 months AND total settlement is $250, 000. 00 or more (including attorney fees/costs). CMS approval should be requested through Genex or MSA provider. They will need the projected settlement amount. Turnaround time with CMS can vary. CMS determination of MSA allocation is final. Note: There is no formal appeal process with CMS. Appeals for CMS determinations can only be filed under limited circumstances such as CMS made a mathematical error or some information known at the time of submission was not submitted in error.

MEDIATION RESULTS Document the results of the mediation in the notepad. If settlement negotiations took place, what was final demand? What was final offer? Was offer/demand “left on the table” for a specified period? Specify agreements made at mediation such as if AWW/CR was stipulated, did we agree to pay past indemnity benefits, authorization of a physician or medical procedure. Did the mediation result in an impasse? If so then you need to be ready for Pre. Trial Conference and Final Hearing

FINAL HEARING If we are proceeding to final hearing, document next steps. Select/schedule E/SA IME Request JCC appoint EMA Schedule physician depositions Is additional surveillance warranted?

QUESTIONS?