Between Correlation and Causation
Employers should not automatically accept a physician’s report that an injury was caused by a work-related event.
And should a claim’s denial be challenged, employers shouldn’t rely on a medical expert who always agrees with them, said Stuart Colburn, an attorney at Downs Stanford, at a session, “How to Use a Medical Expert so You Don’t Get Burned on Causation,” on Thursday at the National Workers’ Compensation and Disability Conference® and Expo.
You are not going to win any cases with those doctors,” he said. “Don’t use them.
“Pick experts that are believable, not that give you the opinion you want.”
It is important that physicians are fully informed about recent research when determining causation of an injury, he said. When necessary, it’s up to the employer to educate physicians.
When analyzing causation, the review should include individual clinical findings, individual workplace exposure, and scientific literature linking or not linking the exposure to the condition.
Don’t just accept prevailing opinion about injury causation, said Dr. Jacob Lazarovic, chief medical officer and SVP, Broadspire. It can be wrong, such as the opinion that carpal tunnel syndrome results from keyboarding.
“Pick experts that are believable, not that give you the opinion you want.” — Stuart Colburn, an attorney at Downs Stanford
Rather, research shows a workplace function would require “significant hand force” to cause carpel tunnel syndrome, he said.
Other research disputes the link between occupational activity and back pain, he said, finding instead that most such injuries have a genetic basis.
Lazarovic also noted there are “significant error rates” in interpreting diagnostic imaging results.
He noted one study found that 33 percent of experienced radiologists disagreed with another physician’s reading of an image. In addition, 25 percent of those physicians disagreed with their own reading, when given the image on another day.
When disputing a claim, Colburn noted that the “exact same wording” about causation will be treated differently, depending on which state the claim is litigated.
Brokerage Prevails on Restrictive Agreements
Recruiting the right people is crucial for insurance brokers. Retaining them can be a challenge.
It’s especially difficult when “nothing short of a corporate raid” takes place, and a broker not only loses key producers, but clients as well. Those are the charges laid against AssuredPartners of Lake Mary, Fla., by Brown & Brown, one of the largest global brokerages.
On Oct. 24, a Florida circuit court judge issued a temporary injunction ordering AssuredPartners to “divest themselves of the former customers of Brown & Brown that are now customers of Assured.”
Brown & Brown was ordered to post a $1.6 million bond, which is “the best estimate we have as to the amount of business employees have effectively stolen in accounts from Brown & Brown through the wrongful solicitation,” said Katheleen Ehrhart, a partner in the litigation practice group at Freeborn & Peters, which represented B&B.
AssuredPartners was formed by two former Brown & Brown executives: Jim Henderson, CEO and chairman of AssuredPartners, was B&B’s vice chairman and COO until his retirement in 2010; and Thomas Riley, president and COO of AssuredPartners, was B&B’s chief acquisition officer.
“We disagree with the ruling,” said Walter Smith, chief counsel of AssuredPartners.
“This [lawsuit], I think, was an unnecessary thing that occurred because we’ve always been clear that we wanted to pay for the accounts that followed.”
He said it is a very common practice for brokerages to pay for accounts that want to follow employees to a new firm.
He said the judge “didn’t find there was solicitation of any customers and they are now our customers. The judge ruled that if there was harm to the customers they could stay with us. We believe it would be harmful [to force the clients to move],” Smith said.
According to the lawsuit, at least 10 accounts, representing more than 50 policies transferred their accounts to AssuredPartners.
“The point is we are going to protect our customers and employees from being solicited to compete against Brown & Brown for two years. That’s very reasonable.” — Katheleen Ehrhart, partner, Freeborn and Peters
“Each of them [the former employees] is free to make that decision on their own to go work for a competitor,” Ehrhart said. “It’s the collusion, if you will, of them doing it together that we say is a violation of the restrictive covenant. But the real focus here is the customers.
“The point is we are going to protect our customers and employees from being solicited to compete against Brown & Brown for two years. That’s very reasonable.
“We also recognize when a customer may … choose to go to another broker, but our employees should not be free to go to a competitor and lure that customer to that competitor,” she said.
The restrictive covenant violations “caused substantial harm and loss of customers to [Brown & Brown],” wrote Judge Dennis Craig in his order issuing the temporary injunction.
The order provided, however, that “if evidence arises that a former customer of Brown & Brown which is now a customer of Assured will suffer harm as a result of this order, the defendants may file a motion asking this Court to reconsider or modify this Order as to that customer.”
The litigation accused Assured of “poaching” eight former employees, who were mostly top executives and producers in B&B’s senior care sector (which brokers insurance for nursing homes, assisted living facilities and continuing care retirement community) or for habitational insurance (for condominium boards and units, and other multi-residence properties).
The employees, who left B&B within 15 days, had signed employment agreements with restrictive covenants, in which they agreed not to disclose confidential information, not to solicit clients or to inform clients of their leaving B&B for two years following their voluntary or involuntary termination.
The agreement also required the employees to not “directly or indirectly solicit or seek to induce any of the company’s employees to leave the company’s employ for any reason.”
The ruling did not require the employees to leave their new jobs, but said they must comply with the restrictive covenants.
On June 23, AssuredPartners announced the hiring of Phil Masi as senior vice president, and Negar Sharifi as vice president, to focus on new commercial property and retail clients. Masi had been SVP at Brown & Brown while Sharifi was a commercial insurance agent.
Also named in the suit were Henderson and Riley of AssuredPartners; and former Brown & Brown employees, Richard Schwarz II, Brian Lindahl, Jennica Mandarano, Kathryn Bloodwell, Michael Randall and Danielle Mattson.
The ruling did not require the employees to leave their new jobs, but said they must comply with the restrictive covenants.
Ehrhart said a date has not yet been set for a trial on a permanent injunction.
If Brown & Brown ultimately prevails, she said, damages could include loss of revenue, loss of investment in business lines, loss of investment in employees, and loss of reputation and good will.
Hot Hacks That Leave You Cold
Thousands of dollars lost at the blink of an eye, and systems shut down for weeks. It might sound like something out of a movie, but it’s becoming more and more of a reality thanks to modern hackers. As technology evolves and becomes more sophisticated, so do the occurrence of cyber breaches.
“The more we rely on technology, the more everything becomes interconnected,” said Jackie Lee, associate vice president, Cyber Liability at Nationwide. “We are in an age where our car is a giant computer, and we can turn on our air conditioners with our phones. Everyone holds data. It’s everywhere.”
Phishing Out Fraud
According to Lee, phishing is on the rise as one of the most common forms of cyber attacks. What used to be easy to identify as fraudulent has become harder to distinguish. Gone are the days of the emails from the Nigerian prince, which have been replaced with much more sophisticated—and tricky—techniques that could extort millions.
“A typical phishing email is much more legitimate and plausible,” Lee said. “It could be an email appearing to be from human resources at annual benefits enrollment or it could be a seemingly authentic message from the CFO asking to release an invoice.”
According to Lee, the root of phishing is behavior and analytics. “Hackers can pick out so much from a person’s behavior, whether it’s a key word in an engagement survey or certain times when they are logging onto VPN.”
On the flip side, behavior also helps determine the best course of action to prevent phishing.
“When we send an exercise email to test how associates respond to phishing, we monitor who has clicked the first round, then a second round,” she said. “We look at repeat offenders and also determine if there is one exercise that is more susceptible. Once we understand that, we can take the right steps to make sure employees are trained to be more aware and recognize a potentially fraudulent email.”
Lee stressed that phishing can affect employees at all levels.
“When the exercise is sent out, we find that 20 percent of the opens are from employees at the executive level,” she said. “It’s just as important they are taking the right steps to ensure they are practicing what they are preaching.”
Locking Down Ransomware
Another hot hacking ploy is ransomware, a type of property-related cyber attack that prevents or limits users from accessing their system unless a ransom is paid. The average ransom request for a business is around $10,000. According to the FBI, there were 2,400 ransomware complaints in 2015, resulting in total estimated losses of more than $24 million. These threats are expected to increase by 300% this year alone.
“These events are happening, and businesses aren’t reporting them,” Lee said.
In the last five years, government entities saw the largest amount of ransomware attacks. Lee added that another popular target is hospitals.
After a recent cyber attack, a hospital in Los Angeles was without its crucial computer programs until it paid the hackers $17,000 to restore its systems.
Lee said there is beginning to be more industry-wide awareness around ransomware, and many healthcare organizations are starting to buy cyber insurance and are taking steps to safeguard their electronic files.
“A hospital holds an enormous amount of data, but there is so much more at stake than just the computer systems,” Lee said. “All their medical systems are technology-based. To lose those would be catastrophic.”
And though not all situations are life-or-death, Lee does emphasize that any kind of property loss could be crippling. “On a granular scale, you look at everything from your car to your security system. All data storage points could be controlled and compromised at some point.”
The Future of Cyber Liability
According to Lee, the Cyber product, which is still in its infancy, is poised to affect every line of business. She foresees underwriting offering more expertise in crime and becoming more segmented into areas of engineering, property, and automotive to address ongoing growing concerns.”
“Cyber coverage will become more than a one-dimensional product,” she said. “I see a large gap in coverage. Consistency is evolving, and as technology evolves, we are beginning to touch other lines. It’s no longer about if a breach will happen. It’s when.”
About Nationwide’s Cyber Solutions
Nationwide’s cyber liability coverage includes a service-based solution that helps mitigate losses. Whether it’s loss prevention resources, breach response and remediation expertise, or an experienced claim team, Nationwide’s comprehensive package of services will complement and enhance an organization’s cyber risk profile.
Nationwide currently offers up to $15 million in limits for Network Security, Data Privacy, Technology E&O, and First Party Business Interruption.
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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Nationwide. The editorial staff of Risk & Insurance had no role in its preparation.