Category Archives: Workers’ Comp Insurance Adjusters

Sedgwick Claims Management fined over $1M for its utilization review practices in CA

Two years ago, we wrote about how Sedgwick CMS’s unreasonable delays in delivering treatment to an injured worker killed him.  Well, they’ve recently agreed to a $1,129,600 settlement in response to the allegations brought by the California Workers’ Compensation Appeals Board for labor code violations stemming from Sedgwick’s utilization review practices.

http://i0.wp.com/moelaw.com/wp-content/uploads/2013/11/Sedgwick-CMS.gif

What is utilization review, anyway? An online search of the terms brings up a definition saying it’s a “safeguard against unnecessary and inappropriate medical care.”  That’s not what I’ve observed.  I’d define it in the workers’ compensation claims management process as this:  “a tool used by insurance adjusters to delay or deny medical treatment prescribed by an injured worker’s authorized treating physician, by sending select medical records to a non-practicing physician in another state who has never seen the injured worker and paying him a fee, with the expectation that said physician will declare the requested medical procedure unreasonable and/or unnecessary.” 

The Audit and Enforcement Unit investigation resulted in 75 “mandatory administrative penalties” against Sedgwick. The violations included allowing someone other than a licensed physician to modify, delay, or deny requests for authorization and failing to issue timely responses to requests for authorization.  Maybe my definition above needs quotes around “physician.”

Sedgwick released a statement saying, “[t]here was a settlement reached, but the most important part of our statement is Sedgwick’s commitment to ensuring injured workers received the best possible care when they need it so they are able to return to full health and productivity.”

Was the $1,129,600 adequate for Sedgwick’s alleged violations?  Its actions caused a man his life, and it physically, mentally, emotionally, and financially harmed several additional injured workers in California to create the need for this investigation to begin.

Do you think this only happens in California?

Sedgwick’s press release after the settlement mentions having 275 offices and 12,000 employees across the U.S., Canada, and United Kingdom. We’ve certainly seen them on many, many claims here in Georgia.

Do you think this only happens to claims managed by Sedgwick CMS?

It happens with many carriers or the companies carriers employ to help “manage” their open claims.  This is why having representation is essential if you’re badly injured at work.  Charles Romano hurt his shoulder stocking shelves for Ralph’s grocery store in Camarillo, CA, and now he’s dead. Hopefully, the investigation and the fine that resulted will deter continued delays, but that’s not what we observe every week in a our law practice dedicated to representing injured workers.  Don’t trust your health and recovery to an insurance adjuster.

Is Rockwell singing about my workers’ comp case?

If you were at Harold’s Chicken & Ice Bar last night about midnight, you might have heard me perform Rockwell’s “Somebody’s Watching Me” at karaoke night.  It sounded exactly like this, in fact:

I chose this song because 1) it’s underrepresented on karaoke nights and 2) it’s relevant to my law practice. The latter is true because insurance adjusters love surveillance, even though 95% of the time, it’s a waste of time and money (in my experience and observation when doing defense work years ago). That said, it’s wise to be aware of your likelihood of being watched if you file a workers’ compensation claim (or other injury claim) to avoid giving an incorrect perception of your injuries and abilities.

If you have recently applied for workers’ compensation benefits, you can almost certainly expect that a private investigator is watching you. Adjusters hire these folks to catch you making a “wrong move” with the goal of suspending your workers’ compensation benefits or discrediting you with your treating doctor (who will already be cynical toward you if he’s someone to whom you were sent by the workers’ comp insurer).

When leaving the house to drive your child to school, there may be somebody outside of your home hoping to get video footage of you lifting up your child into his car seat, or even something as simple as taking out the trash. Once you leave the home, a detective may even follow you to catch you in the middle of some form of physical activity that could result in a cancellation or suspension of your benefits. Often times, the insurance companies know exactly where you are going and when you will be there, since they schedule your doctor’s appointments. The  investigator may be sitting across from you in the waiting room of the doctor’s office, looking like another patient, but they are watching your every move.

Just as you tell your children to be wary of the stranger in the overcoat advertising free candy by the playground, I would avoid small talk or other interactions with  strangers whom you may see at medical appointments or around your home if you’re in the middle of litigation.  Instead, yell, “STRANGER DANGER!” and call the police. I’ve found this to have amusing results when I tell the opposing attorney about it (or, better yet, when I hear it from the opposing attorney).

Run away when the workers’ comp adjuster offers $7,000 immediately after your husband has died

I have a client whose de facto husband–with whom she had two sons–died in a roofing accident.  Under the Georgia Workers’ Compensation Act, the sons can receive the workers’ compensation benefits at the weekly rate to which he would be entitled had he lived (2/3 his average weekly wage up to the $525 per week current cap) until the youngest child reaches 18, or even until he reaches 22 if he continues his education.  There’s also a $7500 burial allowance that should be paid immediately.

Very shortly after this man died, however, a field adjuster for Amerisafe Risk Services showed up at the widow’s door and asked if they would just settle the entire workers’ compensation claim for $7,000.  The widow hardly speaks English; she and her de facto husband were both from Mexico and spoke Spanish.  Luckily, a good neighbor (a real one, not someone from State Farm) was there at the house, translated, and then conveyed the horror at such an obvious “low ball” and insulting offer immediately after her loved one’s death.  The adjuster quickly multiplied by 10 and offered $70,000.  Luckily again, the widow chose to seek legal counsel instead of accepting this dollar figure.

That was two years ago.  The family has been paid the weekly workers’ compensation benefits to which they’re entitled ever since the fatal accident.  The remaining exposure for these weekly benefits is just under $500,000.  Had the widow accepted the racist adjuster’s in-person offer, she would have forfeited over $550,000 and likely would have had to go on government assistance to raise her two small children instead of letting the workers’ comp system do that for which it was designed.

So, if the breadwinner in your family dies at work, and an adjuster shows up at your house to offer some money to close out the entire claim on the spot, will you take it?  Please say “no.”  Especially if you have a language barrier issue.

Can workers’ comp claim investigators use my Facebook feed as evidence?

keyboardIn the midst of a workers’ comp case, most insurance companies will use whatever they can get their hands on to protect their assets—including social media. Although a legal precedent has not been set, some courts have allowed the use of photos and personal information posted to social media sites as evidence for a plaintiff’s condition, or what they perceive as the lack thereof.

In the past, Supreme Court judges have openly reminded defense attorneys that asking for evidence, such as access to a plaintiff’s social media accounts, doesn’t guarantee access to that information. In order to request and receive such evidence, eager defense attorneys not only need to explain why they need the information, but also prove that it can’t be gained via the usual means, such as interrogatories and depositions.

Even though it seems that most workers’ comp plaintiffs’ Facebook feeds are safe from the prying eyes of suspicious defense attorneys, it pays to be prudent about what you choose to share with the public. Here are a few basic tips for maintaining both your privacy and the integrity of your workers’ comp case:

When in doubt, don’t.

If you are involved in any kind of workers’ comp case, don’t talk about it on Facebook, Twitter, Google+, or your blog. If you have to ask yourself, “Should I post this?” then the answer is probably a resounding “No!”

Be proactive about your privacy.

If you don’t want anyone stumbling upon what could be perceived as compromising images or information about you, be smart about your social media privacy settings. Lock down your Facebook page, privatize your Twitter account, and make sure your blog is password-protected.

Think about how your posts relate to your workers’ comp case.

If a serious back injury sustained on the job has put you out of commission, you probably shouldn’t post pictures of last week’s pick-up basketball game—even if you were just the referee. Think long and hard about how an insurance company might interpret any photos or information before you click “Publish.”

In conclusion, use common sense—if you wouldn’t want a defense attorney asking you about your latest Tweet or Facebook profile picture in court, don’t post it.

For legal questions or concerns, contact Atlanta workers’ comp attorney Michael Moebes at (404) 354-5432, or visit him online at www.atlanta-workers-comp.com.

Atlanta Workers’ Comp Lesson Number 1: Check Your Mail

Full-MailboxReady Mix USA can testify that one of the quickest ways to lose a workers’ comp case is to ignore a notice sent by the Georgia Courts. After failing to show for a worker’s compensation hearing for one of their employees, Terrell B. Ross, both Ready Mix and their insurance company, Liberty Mutual, found themselves paying for full temporary disability benefits.

As you might imagine, Ready Mix and Liberty Mutual did not go down without a fight. Shortly after a small oversight turned into a hefty bill, both companies banded together and tried to have the hearing vacated. Their reasoning? The courts hadn’t provided adequate notice.

Now, let’s take a look at where this all started. In December 2009, Terrell Ross noticed pain and tightening in his back while swinging a sledgehammer. He followed the rules and immediately reported this to his supervisor. (His supervisor did not follow the rules, and failed to refer him to one of Ready Mix’s appointed physicians.)

One week later, Ross noticed pain in his lower back, and took the opportunity to gently remind his employer of the previous injury report. This time, Ross’s supervisor sent him for a medical evaluation, where he was diagnosed with lumbar and thoracic strain resulting from his occupation. The physician recommended that Ross be put on light duty, and prescribed pain medication and physical therapy for treatment. Several weeks later, Ross went to see a physician who specialized in such treatments; this doctor requested that Ross undergo a surgical MRI.

After seeing the results of the MRI, the physician sent Ross to an orthopedic spine specialist, who recommended facet injections—a treatment that would take Ross out of commission until May 2010. Ross’ work status was recorded as “totally disabled” until the workers’ comp board approved the facet injection treatment.

At this point, Ross requested a hearing with the administrative law judge (ALJ) to ask for permission for an MRI, facet injections, TTD benefits, attorneys’ fees, and a 15% penalty for nonpayment. In addition, he served both Ready Mix USA and Liberty Mutual with discovery requests.

When the hearing rolled around in July 2010, both Ready Mix and Liberty Mutual were no-shows. (Even worse, they provided no responses to Ross’s request for discovery documents.) Ross testified before the ALJ, and was promptly given everything he asked for.

Shocked by the turn of events, Ready Mix USA and Liberty Mutual claimed that they hadn’t received adequate notice for the hearing, and insisted that the ALJ vacate the hearing and allow them to “amend” their responses to the Ross’s request for discovery.

Unsurprisingly, the ALJ refuted both companies’ motions. After all, they had been notified by both e-mail and snail mail—and the court had physical records of mailing the notices, meaning that the onus was entirely on Ready Mix and Liberty Mutual.

The moral of the story here, ladies and gentlemen, is that ignorance is not always bliss, and that you should always check your mail—especially if you’re in the middle of a workers’ comp case.

Contact Atlanta workers’ comp lawyer Michael Moebes at (404) 354-5432 for legal advice.

Temporary Workers Face Higher Risk of Workplace Injuries

Olga Pierce, Jeff Larson, and Michael Grabell of ProPublica, a non-profit organization that provides high-quality, investigative journalism, brought some disturbing facts about temporary work to light in an article titled “Temporary Work, Lasting Harm.”

According to ProPublica’s analysis of workers’ compensation claims across the United States, temp workers in high-risk states like California and Florida are 50% more likely to be injured on the job than permanent employees. Worse still, the nature of the injuries suffered by temp workers are far more serious. A review of workers’ comp claims in Florida revealed that temps were more likely to suffer severe trauma, such as fractures, punctures, and crushing injuries.

Why this startling discrepancy in the rate of injury?

When a permanent employee is injured, companies find themselves paying higher insurance premiums and footing the bill for medical costs, lost wages, and pain and suffering. When a temporary worker is injured, the recruiting agency pays for any workers’ comp, leaving the company with no incentive to properly train its workers and enforce safety procedures.

And that’s the best case scenario. In many instances, the temp firm and the company fight over who should pay workers’ comp costs, delaying the delivery of vital medical care until the issue is resolved.

If we know all of this, why aren’t lawmakers working to protect temp workers? It’s not for lack of trying. Concerned policymakers find that they are hard-pressed to make any real changes because there simply isn’t enough evidence. Although it tracks most industries, the federal government doesn’t keep tabs on injury rates for temporary workers.

There is progress—but it comes at a price. Rather than enacting proactive safety policies, many companies who hire temp workers often scramble to enforce life-saving measures after tragedy strikes—and after “business as usual” takes a financial toll.

If you’ve suffered an injury at the workplace, contact Georgia workers’ compensation attorney Michael Moebes at (404) 354-5432 for a free consultation.

 

When Dealing with Claims Adjusters, Always Read the Fine Print

Here is the story of one man, his company, and a rather unscrupulous claims adjuster. Kevin Miles, the sole owner and manager of Nebo Ventures, LLC, made his living helping various companies obtain and fulfill contracts with both state and local governments. In 2003, he was contracted by a larger company (formerly known as NovaPro, L.P.) to help sell administrative services to potential clients.

Lo, many years ago, the written contract between Nebo and NovaPro stated that Miles’ contractual fees would be calculated in a separate schedule for each potential customer; furthermore, NovaPro asserted that they would not take any actions that might prohibit the payment of said fees to Nebo. In a later addendum to the contract, the City of Atlanta was identified as a “potential customer,” meaning that NovaPro was responsible for the agreed payment of “5% of the adjusted gross revenues” for the entirety of its contract with the City of Atlanta.

Initially, the contract with Atlanta was crafted to last 2 years, with the option of one two-year renewal. At the end of the contracted period, the City of Atlanta opened up the floor and issued an RFP seeking bidders for a new contract—one which included the provisions of workers’ compensation, medical, healthcare and claims management services. Undeterred, NovaPro threw their hat into the ring, and won. The new contract, beginning July 1, 2009, was for 3 years of service.

Unaware of the private negotiations between the City of Atlanta and NovaPro, Kevin Miles learned that the city was going to end its initial contract with NovaPro, and contacted the CEO, Russ Whitmarsh, about the possibility of extending their agreement for three more years—but only if the City of Atlanta agreed to take on NovaPro again. (Of course, that agreement had already been made.) After several emails, Whitmarsh agreed to Miles’ proposal, saying that he would commit to the extension of the agreement if NovaPro was granted the renewal. (They were.) Whitmarsh also noted that he would put their new agreement in writing. (He didn’t.)

In June 2011, NovaPro sold the entirety of its assets to another company, which included the rights to the renewed contract with the City of Atlanta. As a result, Nebo Ventures, LLC never saw a dime of 2009 contract’s “adjusted gross revenues,” despite the email exchange promising to “extend the current agreement if [we] get the renewal.”

Now, let’s take a step back. According to the Nebo and NovaPro’s first contract, these “adjusted gross revenues” included the possibility of a yearly bonus. The City of Atlanta had generously agreed to grant NovaPro a performance bonus, and, of course, Nebo Ventures, LLC would receive a 5% share. Somehow—despite the fact that the City of Atlanta renewed their contract with NovaPro—Nebo’s checking account did not reflect the 5% share of any performance bonuses. What’s more, the CEO of NovaPro insisted that the company had not received any such payment from the city.

As you might have guessed, NovaPro did indeed earn performance bonuses; in the second quarter of 2005, they received a lump sum of $814,501, and in the second quarter of 2006, they received a bonus of $348, 972. In response to this new piece of information, Miles sued NovaPro to recover damages for breach of contract, and more importantly, fraud.

As of November 19, 2013, Miles’ attempt to recover his alleged losses was summarily denied a trial by jury. The court ruled that Nebo’s reliance on NovaPro’s representation of the situation was unjustifiable, and that neglecting to perform an audit constituted a failure to exercise due diligence. Similarly, the lack of a hard contract renewing the “current agreement,” as promised via email, left Miles with very little ground to stand on.

If the case of Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P. teaches us anything, it is that we should be wary of promises and guarantees that only appear in our inbox.

Contact Atlanta workers’ compensation attorney Michael Moebes at (404) 354-5432 for legal questions or concerns.

Are assessed attorney’s fees awards often affirmed by Georgia higher courts?

Well, yes.  And here’s an example…

On October 26, 2010, Martha Ayers was injured on the job. Immediately after the injury, Ms. Ayers officially reported its occurrence. The next day, her employer, Heritage Healthcare of Toccoa, fired her unceremoniously and denied her request for disability benefits. Undeterred, Ms. Ayers went on to file a request for a hearing, requesting income and medical benefits in addition to late payment penalties, assessed attorney’s fees, and litigation expenses.

Surprisingly, Heritage Healthcare of Toccoa didn’t put up a fight. On March 11, 2011, Heritage Healthcare’s third party compensation carrier paid Ms. Ayers in full for twenty weeks of past due benefits, then proceeded to deliver weekly benefits according to her request. On September 27, 2011, Ms. Ayers’ former employer went on to pay a lump sum as compensation for the late penalties owed on the March 11, 2011 payment.

Now, it might seem as though Heritage Healthcare of Toccoa was playing by the rules, but they’d forgotten one not-so-small detail. In addition to paying Ms. Ayers income and medical benefits and any late payment penalties owed, Heritage Healthcare had also tacitly agreed to shell out the money for assessed attorney’s fees and the expenses of litigation–fees that could have been avoided by treating Ms. Ayers with the respect and care she deserved.

On September 29, 2011, the final hearing for Ms. Ayers’ case for assessed attorney’s fees was held. The State Board ruled that Martha Ayers’ claim was valid, and that because Heritage Healthcare of Toccoa hadn’t argued the late payment penalty, they were also responsible for paying all assessed attorney’s fees on those late funds.

So, what lesson can be learned from the Georgia Court of Appeals’ decision to uphold the right to assessed attorney’s fees on past due indemnity benefits, late payments, and future indemnity benefits? When an employee reports a workplace injury, do the right thing…the first  time.

At Moebes Law, we’re committed to protecting your rights and your health. If you’ve been injured on the job, contact Atlanta’s leading workers’ compensation lawyers at (404) 354-5432 for a free consultation.

How a Workers’ Compensation Adjuster’s Intentional Delays Killed a Man

How many times could a company with a homegrown, wholesome name like Ralph’s Grocery Co. turn a blind eye to the medical needs of an injured employee? According to the California Workers’ Compensation Appeals board, 11 is the lucky number.

Sedgwick-CMSThe trouble began in December 2003, when Charles Romano sustained an injury to his left shoulder and cervical spine while stocking the shelves of Ralph’s Grocery Co. in Camarillo, California. Two years after the initial injury, Romano finally received the authorization required to proceed with surgery. Romano’s shoulder was healed, but he contracted a serious staph infection as a result of the procedure. Once healthy and hardy, Romano suffered both pulmonary and renal failure, followed by partial paralysis.

And what did Ralph’s Grocery Co. and its third party claims adjuster do once they realized that Romano had contracted an antibiotic-resistant staph infection, more commonly known as MRSA? As Romano suffered from this debilitating, multi-system illness, Sedgwick CMS delayed eleven requests for authorization and reimbursement.

But wait–it gets worse. Not only did Sedgwick CMS fail to deliver fair reimbursement in a timely fashion, they also ignored a judge’s direct order to provide Romano with the intensive care that he needed until his medical bills had reached a grand total of $24,000 a day.

Charles Romano was 47 years old when he died from cardiorespiratory arrest, respiratory failure, and pneumonia resulting from an untreated MRSA infection. In the years prior to his death, Romano was treated at five separate facilities; Sedgwick CMS either delayed or refused to pay any of the accompanying medical costs, even after Romano was awarded further medical treatment by the California Workers’ Compensation Appeals Board. This appalling conduct continued up until Romano’s death, when Sedgwick CMS denied authorization for his final stay at Community Memorial Hospital.

Perhaps most distressing is the fact that Sedgwick CMS contends that they cannot be penalized for eleven instances of “unreasonable delay” because the applicant is now deceased. This attitude certainly conflicts with the heartfelt, apologetic statement made in response to the threat of prosecution.

After the untimely death of Ralph’s Grocery Co. employee Charles Romano, friends and family have rallied to his cause. In June 2013, longtime friend Sid Freeman joined forces with several members of the Central Coast Chapter of the California Applicant Attorney Association. After going public with a brief news conference, Freeman went on to file a letter with District Attorney Greg Totten pushing for the criminal prosecution of the third party claims administer Sedgwick CMS.

At Moebes Law, we are outraged by this blatant disregard for employee health and welfare. If you suffer from a workplace injury, don’t let your case get swept under the rug — contact us for a free consultation today.

Ohio employers win $860 million after overcharged by workers’ compensation insurer

A Cuyahoga County judge has awarded nearly $860 million in restitution to a group of Ohio employers involved in a class-action lawsuit that began in 2007. The suit claimed that the Ohio Bureau of Worker’s Compensation, which provides worker’s compensation benefits to about two-thirds of Ohio’s workforce, overcharged the more than 270,000 employers for worker’s compensation insurance because of inequities in their group coverage program.

Common Pleas Court Judge Richard McMonagle ruled that employers who were excluded from the group program were charged excessive premiums over an eight year period from 2001 to 2009. Many of the employers named in the suit weren’t even aware that they were a part of it.

Stuart Garson, one of the attorneys representing the employers, said “Now is the time for the BWC to take responsibility.”

The BWC plans to appeal, so the restitution won’t be quick to come to the employers.

The group rating program under the BWC allows businesses which are relatively similar to join together under one sponsor in order to qualify for premium rates. Qualification for the group rating is based on few or no injury claims and excellent workplace safety records.

The main argument in the suit goes that businesses excluded from the group rating program were being unfairly forced to subsidize the premium group rating discounts. Basically, the money the group rating program participants were saving was coming out of the pockets of the non-group employers. Often times it only took one injury claim to disqualify a business from group rating eligibility.

In 2007, then BWC administrator Marsha Ryan wrote in a letter that 6700 employers’ premiums rose by an average of nearly 700% after being excluded from the group rating program. After disqualification, 31% of those businesses cancelled their insurance altogether or were forced to file for bankruptcy.

BWC spokeswoman Melissa Vance said the claims costs and expenses spent by the bureau over those eight years exceeded the premiums the excluded employers paid by $861 million. She also said the restitution asked for in the lawsuit would have to be drawn from premiums the BWC collects from employers to treat employees hurt on the job.

In his ruling McMonagle didn’t accept those arguments. Neither did Garson, saying the BWC has nearly $9 billion in net assets and can make the restitution without having to raise premiums.

The BWC, which is an independent body despite its board being appointed by the governor, was handed a restraining order last year concerning the group rating program for not complying with state law regarding how rates are set. The program was allowed to continue, but the BWC was ordered by the Ohio General Assembly to reform it, setting limits to the discounts available at 53%. Discounts given out to groups had been up to 90% while employers not in groups saw increases of 100% or more when the program began.

Of the 270,000 employers affected by the ruling, nine are owed more than $1 million and 1,142 are owed more than $100,000.

During the hearings, McMonagle’s courtroom was packed with supporters of the employers’ group Pay Us Back Ohio BWC, organized in conjunction with the lawsuit, which also started the informational website PayNowBWC.com. Contact my Atlanta workers compensation firm.