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Risk Scenario

The Scales of Justice

Two employee injuries at the same company produce two very different outcomes.
By: | August 26, 2014 • 9 min read
Risk Scenarios are created by Risk & Insurance editors along with leading industry partners. The hypothetical, yet realistic stories, showcase emerging risks that can result in significant losses if not properly addressed.

Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.

Frankie and Hector

“It’s a great day for the Irish!”

Scenario_ScalesJustice

Whether they loved him or found him annoying, workers in the seafood and meat departments in the Better Harvest grocery store in Boston’s Back Bay knew the meaning of that booming morning greeting very well.

It declared that boisterous fish cleaner and erstwhile fish-counter salesman Frankie Burns was at work, and he wanted everybody to know it.

Despite his sometimes jarring presence, most people loved Frankie. Frankie knew seafood, having worked on his family’s cod boat when he was younger. Now, at 55, he provided a knowledge of local fish and shellfish that was an asset in a store catering to the Back Bay’s educated, prosperous consumers.

Barrel-chested, with forearms, shoulders and biceps solidly built from years of manual labor, Frankie cheerfully and proudly unloaded the tubs of hake, pollock and flounder sold by the market.

This May morning, though, would prove to be a wake-up call for the hard-living Frankie. As he had thousands of times before, Frankie hoisted a heavy tub of iced pollock up onto the fish-cutting counter. This time, though, his back gave out.

“Whoa,” Frankie said as he clutched his lower back, wincing at the piercing, unfamiliar pain there.

Whoa indeed.

Testing revealed that Frankie had aggravated a chronic degenerative back condition. His claim was found to be compensable.

Scenario Partner

Scenario Partner

With 180 stores nationwide and close to $8 billion in sales, Better Harvest’s human resources department was well-versed in the amendments to the Americans with Disabilities Act that were enacted in 2008.

Following Better Harvest’s well-documented procedures, and at Frankie’s reluctant request, Back Bay store manager Gracie Walker granted Frankie an accommodation under the ADA.

For now, Frankie was done hoisting ice-filled fish tubs. The store would need to find another fish cutter as the heaviest thing Frankie would be permitted to lift would be paper-wrapped one pound cod fillets.

“Hey, a job’s a job,” Frankie said, as he hoisted a beer and a Fenway Frank with his brother Petey at a Sox game that summer.

————–

Hector Velasquez was the fish cutter in Better Harvest’s Brentwood, Calif. store.

At 53, Hector’s idea of a good time was to go Zydeco dancing with his latest and greatest girlfriend Vera at the Puma Club in nearby Venice Beach.

That’s exactly what Hector was doing on a steaming hot California night during a performance of his favorite Zydeco band, the Vallejo Oyster Crackers. But Hector made a misstep due to a slippery combination of spilled beer and crushed peanut shells on the dance floor of the Puma Club.

Vera tumbled to the ground with Hector but popped right back up, adjusting her hair and skirt in the process. Hector wasn’t so lucky.

“Honey, are you hurt?” Vera said.

Hector, whose love of beer, fried seafood and tortillas had left him with a stout belly, tried to get up but couldn’t.

Another dancer, seeing Hector in distress, stopped Hector from trying to move.

“Stay still, man,” the Zydeco dancer said. “You might have really hurt yourself.”

Hector’s fellow dancer put his hand on Hector’s belly to still his movements and pushed a chair cushion under his head.

“Be still a minute, man, and breathe — breathe against the pain,” the Zydeco dancer said.

Hector looked up at the man thankfully and started to breathe more deeply, his beer belly rising and falling with each labored breath.

Hector couldn’t make it to work the following Monday and filed for leave under the Family Medical Leave Act.

Poll Question

How familiar are your risk management and human resources departments with the amendments to the Americans with Disabilities Act that were enacted in 2008?

View Results

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Tough Medicine

Hector rested for a few days, trying to dull the pain with Ibuprofen and light beer. Given that he wasn’t hurt at work, Hector didn’t go to a doctor, thinking he might end up bearing the cost of treatment that he couldn’t afford.

Scenario_ScalesJustice

On the Thursday after his injury, Hector got a ride from a buddy and came back to work. Hector is self-medicating, taking unhealthy doses of Ibuprofen in an attempt to perform his job.

He barely made it through Thursday and Friday, depending on co-workers to cover for him. Over the weekend, home resting but still in substantial pain, Hector faced the music.

“There’s no way, man,” he said, looking at his bent-over body in the bathroom mirror.

“I gotta talk to somebody.”

The following Monday, Dave Wagner, the general manager of the Brentwood Better Harvest store, got a knock on his office door.

Being the GM of this store, with its affluent and demanding customer base, was no joke. Dave Wagner was one busy man.

“Hector, what’s up?” Dave said.

“I need to talk to you, Mr. Wagner. It’s my back. I hurt it bad the other night and I can’t do any lifting, not much anyway,” Hector said.




Dave did some rapid-fire mental calculations as he gestured Hector to a chair.

“Sit down Hector, sit down,” he said.

Hector moved slowly to sit down, telling Dave everything he needed to know about how badly Hector was hurting.

“I’ll tell you what Hector, I’ll tell you what,” Dave said, as memories of Better Harvest HR emails concerning the ADA flashed through his formidable memory.

“Hold on a sec,” Dave said and popped down at his desk. In two clicks and a couple of scrolls, Dave scanned some emails from HR.

“Reasonable accommodation” is the phrase that stuck in Dave’s mind as he rapidly scanned the emails.

“You don’t have to lift,” Dave said, turning back to Hector. “You can work the counter. How does that sound?”

Hector, although in substantial pain, brightened some.

“That sounds good Mr. Wagner, thank you,” Hector said. But Hector’s feeble attempts to stand up sent Dave a message.

“Talk to Marcus and tell him what I said and I’ll talk to him too,” Dave said, as Hector made his way out.

As Hector went off to find Marcus, the manager of the seafood department, Dave engaged in professional, removed reflection.

“We’ll see what’s reasonable. I’ll give it three months,” he said to himself, before his vibrating cellphone distracted him.

“Cripe,” the harried Dave said to himself, looking at the number and picking up his phone.

“Dave Wagner,” he said impatiently to whoever was on the line.

Three months came and went, and Dave had to make a call. Hector just wasn’t that strong on the counter.

You had to have serious customer service skills to handle Brentwood and Beverly Hills customers and Hector was flailing. Complaints about him were coming at Dave from all sides, customers, co-workers, you name it.

“Reasonable means reasonable,” Dave said to himself as, worn down with complaints about Hector’s customer service shortcomings, he moved to terminate him.

Poll Question

How well do you document interactions with employees that touch on ADA or Family Medical Leave Act compliance issues?

View Results

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The Wheel Turns

After his firing, it didn’t take long for the befuddled Hector to hook up with a gifted, ambitious employment rights attorney, Lucia Yamamoto, a graduate of Berkeley Law and a passionate defender of workers’ rights.

Scenario_ScalesJustice

This is how the pre-trial negotiations went between Yamamoto’s firm, The Workers’ Rights Center, and the firm that did defense work for Better Harvest’s employment liability carrier, Apex Insurance.

“Okay guys, this is an easy one,” Yamamoto said on the phone call with the Apex defense team.

“We don’t see it that way,” was the game response from Ed Kleindinst, the defense lead for Apex’s law firm, Kleindinst, Evans, Hale & Brown.

“Oh really?” Yamamoto said, her derision palpable.

“You got two guys, practically the same age. They’re both working the same job. I mean this is beautiful,” she said.

“You accommodate one guy, and he’s still got a job,” Yamamoto said.

“Your GM in the Boston store continues to accommodate him, according to widely disseminated company policy…,” she continued.

“I don’t think you’re in a position to know how widely disseminated it was,” Kleindinst responded.

“Like it matters,” Yamamoto shot back.

“The other guy, same company, you terminate after 90 days even though it’s not presenting an undue hardship to your business. Instead, he was terminated because the manager felt he had accommodated him for long enough, which runs contrary to the company policy,” Yamamoto says.

“Been there 20 years, married with four children. Never been disciplined in his working life. Hello? Are you guys still there?” she said.

“We’re here,” Kleindinst said, this time with a little less vigor, pushing the mute button and rolling his eyes at his co-counsel in one of the Kleindinst, Evans, Hale & Brown conference rooms.

One of the partners jotted a note on a sheet of paper and slid it in front of Kleindinst.

There was a pause — orchestrated on the part of both Yamamoto and Kleindinst.

“Well, you’re not saying anything,” Yamamoto said.

“Go on, please, counsel,” Kleindinst said.

“Oh I’ll go on, I could go on all day with this one,” Yamamoto said.

“Two million,” she said.

“Oh come on!” Kleindinst said.

“See you in court!” Yamamoto replied.

Kleindinst’s partner jerks his head at the sheet of paper, trying to focus Kleindinst.

“One million,” Kleindinst said.

“One and six or we go to court and no more of this,” Yamamoto said.

There is another pause.

“Gentlemen, are we done?” said Yamamoto.

Kleindinst looked at his co-counsel, who nodded and pulled back in his chair.

“Yes, we’re done,” Kleindinst said.

***

“I really, really don’t like her,” Kleindinst said to his partner after he hung up.

“Like it matters,” his partner said.

Poll Question

Are you aware of the section of the ADA which stipulates that employees seeking an injury accommodation shouldn’t have to compete with other employees for the accommodation?

View Results

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Bar-Lessons-Learned---Partner's-Content-V1b

Risk & Insurance® partnered with Sedgwick to produce this scenario. Below are Sedgwick’s recommendations on how to prevent the losses presented in the scenario. This perspective is not an editorial opinion of Risk & Insurance®.

1. Medical review: Make sure you request and document medical reviews of any request for leave or accommodation under the Family Medical Leave Act or the Americans with Disabilities Act as part of the overall interactive accommodation process.

2. Consistency: Different injured employees with debilitating chronic conditions should be treated with consistency under the Americans with Disabilities Act, regardless of whether their need for accommodation is due to a work-related injury, a non-occupational injury or illness or for another medical need.

3. Document, document, document: Companies need to make sure that standard procedures regarding leave or accommodation under the Family Medical Leave Act or the Americans with Disabilities Act are in place, up to date and triggering interactive process review – as well as clearly communicated to employees. Companies also need to document that they have communicated changes to those policies in a comprehensive and timely manner. A robust information management platform is key to supporting the process and necessary documentation.

4. The leave option: Although the goal of ADA/ADAAA is to keep people at work and every effort should be made to meet an accommodation request, supervisors need to keep in mind that there may be cases where a workplace accommodation isn’t possible or advisable due to the significant hardship it would place on their business; time off from work may be the only option. Shoe-horning an employee into a task they are unfit for may do more harm than good.

5. Disabled means disabled: Under the law, even if a condition is “controlled” by medication or some other treatment method, a disability is still a disability. Be very careful not to treat someone with a chronic condition differently just because they’re asymptomatic.

Additional Resources

ADA Accommodation Services

Sedgwick Connection Blog



Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at dreynolds@lrp.com.
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Risk Insider: Terri Nichols

The Information Gap

By: | August 22, 2014 • 2 min read
Terri Morris-Nichols is system director of risk management at PeaceHealth, a not-for-profit health care system with 10 hospitals and medical facilities in Alaska, Washington and Oregon. She is a registered nurse with a master's degree in health administration. She can be reached at TNichols@peacehealth.org.

All too often, we hear antidotes about circumstances where important information was not provided to the risk management team because of the fear of retribution or retaliation.

When that happens, we lose the opportunity to improve the organization’s performance. Particularly in health care, this leads to ineffective feedback for patient safety.

“Compassionate communication” encourages others to share and express their thoughts. It has been described as ensuring we hear the underlying values, needs, and fears of those we communicate with.

With compassionate communication — and the coaching and mentoring that follows — our colleagues will ensure that critical information is provided and that risk management can be seen as a partner.

Organizations that have a highly evolved risk culture have designed opportunities for this open dialogue. Approaching the risk culture with a mind-set linked to valuing and engaging the individual through compassionate communication still provides the necessary parameters around which we can protect the organization and mitigate risk.

A Hurtful Silence

We have heard stories about individuals who isolate after a mistake has been made or when their actions result in an untoward outcome because they believe that opening up to someone is a risk to themselves and their organization.

They silence their opportunities to process their feelings and emotions in exchange for safety from legal ramifications, believing they will be met with blame and criticism for their actions.

Yet, in a culture of compassionate communication, these doors are opened, and leaders can nurture the space between recognition and reporting to inspire, create hope, and engage employees in areas that might have been neglected in the past.

With compassionate communication, the culture is enhanced and enriched.

Each of our employees has the ability to see and report situations that could bring about risk to the organization, so visibility and approachability are crucial.

Using opportunities to seek information — explore what is keeping your employees up at night — and to provide education on a structured schedule demystifies the idea of who is behind the door.

Risk managers also need strong communication and conflict resolution skills.

While many risk managers understand the skills related to negotiation and mediation, we sometimes forget that we are working with human beings who bring their fears and hesitations when thinking about risks in our organizations.

Training risk managers in empathetic approaches, the principles of cooperative power, and sound communication skills will provide an infusion of compassionate communication within the risk culture where it is needed to ensure that the right thing is done on behalf of those served.

I was once told that it takes at least two years to fully develop trust in another individual. Trust at a level where no matter what the decision or action, support can be given indicates a trusting relationship.

Working to develop and solidify strategic relationships with risk management, through our use of empathy and compassion, will contribute to the kind of risk culture that benefits those serving the organization and those being served.

Read all of Terri Nichols’ Risk Insider contributions.

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Sponsored: Healthesystems

The Next Wave of Workers’ Comp Medical Cost Savings

Reducing WC claims costs in one area often inflates them in another.
By: | August 4, 2014 • 6 min read

Managing medical costs for workers’ compensation claims is like pushing on a balloon. As you effectively manage expenses in one area, there are bound to be bulges in another.

Over the last decade, great strides have been made in managing many aspects of workers’ compensation medical costs. Case management, bill review and pharmacy benefits management are just a few categories that produce significant returns.

And yet, according to the National Council on Compensation Insurance (NCCI), medical costs remain the largest percentage of workers’ comp expenses. Worse still, medical costs continue to be the fastest growing expense category.

Many medical services are closely managed through provider negotiations, bill review, utilization review, pharmacy benefits management, to name a few. But a large opportunity for medical cost containment remains largely untouched and therefore represents a significant opportunity for cost savings.

Ancillary medical services is a term used to describe specialty or supplemental health care services such as medical supplies, home health care, durable medical equipment, transportation and physical therapy, etc.

According to Clifford James, Vice President of Strategic Development at Healthesystems in Tampa, Fla., modernizing the process for managing ancillary medical services presents compelling opportunities for cost savings and improved patient care.

Source: 2014 Healthesystems Ancillary Medical Services Survey

“The challenge of managing these types of medical products and services is a cumbersome and extremely disconnected process,” James said. “As a result, it represents a missing link in an overall medical cost management strategy, which means it is costing payers money and patients the most optimal care.”

James singled out three key hurdles:

Lack of transparency

As the adage goes, you can only manage what you can measure.

Yet when it comes to the broad range of products and services that comprise ancillary benefits, comprehensive data and benchmarking metrics by which to gauge success are hard to come by.

The problem begins with an antiquated approach to coding medical services that was developed in the 1970s. The coding system falls short in today’s modern health care environment due to its lack of product and service level detail such as consistent units of measure, quantity and descriptors.

As a result, a meaningful percentage of ancillary benefits spending is coded as “miscellaneous,” which means a payer has little to no visibility into what product or service is being delivered — and no way to determine if the correct price is being applied or if the item is even necessary or appropriate.

Source: 2014 Healthesystems Ancillary Medical Services Survey

“It’s a big challenge. Especially when you consider that for many payers, it’s difficult to determine exactly what they are spending, or identify what the major cost drivers are when it comes to ancillary services,” James said. And when frequently over 20 percent of these types of services are billed as miscellaneous, payers have zero visibility to effectively manage these costs.

Measurement and monitoring

Often, performance that is monitored is given the most attention. Therefore, ancillary programs that are closely monitored and measured against objective benchmarks should be the most successful.

However, benchmarks are hard to determine because multiple vendors are frequently involved using disparate data and processes. There isn’t a consistent focus on continuous quality improvement, because each vendor operates off of their own success criteria.

“Leveraging objective competitive comparisons breeds success in any industry. Yet for ancillary services there is very limited data to clearly measure performance across all vendors,” James said. “And for payers, this is a major area of opportunity to promote service and cost containment excellence.”

Source: 2014 Healthesystems Ancillary Medical Services Survey

Inefficiency

If you ask claims executives about their strategies for improving the claims management process, a likely response may be “workload optimization.” The goal for some is to enable claims professionals to handle a maximum case load by minimizing administrative duties so they can leverage their expertise to better manage the outcome of each case.

But the path towards “workload optimization” has many hurdles, especially when you consider what needs to be coordinated and the manual way it frequently is done.

Ancillary benefits are a prime example. For a single case, a claims professional might need to coordinate durable medical equipment, secure translation services, arrange for transportation and confirm the best physical therapy plan. Unfortunately they often don’t have the needed time, or the pertinent information, in order to make quick, yet informed, decisions about the ancillary needs of their claimants.

In addition there is the complexity of managing multiple vendor relationships, juggling various contacts, and accessing multiple platforms and/or making endless phone calls.

SponsoredContent_HES“We’ve been called the ‘industry integrator’ by some people, and that’s accurate. We are delivering a proven platform connecting payers with providers and vendors on the ancillary medical benefit front. It’s never been done before.”
– Clifford James, Vice President of Strategic Development, Healthesystems

Modernizing the process

To the benefit of both payers and vendors, Healthesystems offers Ancillary Benefits Management (ABM).

The breakthrough ABM solution consists of three foundational components — a technological platform, proprietary medical coding system and a comprehensive benefits management methodology.

The technological platform integrates payers and vendors with a standardized architecture and processes. Business rules and edits can be easily managed and applied across all contracted vendors. All processes – from referral to billing and payment – are managed on a single platform, empowering the payer with a centralized tool for managing the quality of all ancillary providers.

But when it comes to ancillary products, the critical and unique challenge Healthesystems had to solve is the antiquated coding system. This was completed by developing a highly granular, product-specific coding system including detailed descriptions and units of measure for all products and services. This coding provides payers with the clearest understanding of all products and services delivered including pricing and all the necessary utilization metrics.

“We bring the highest level of transparency and visibility into all ancillary products and services,” James said, adding that the ABM platform uses an extensive preferred product coding system 15 times more detailed than any other existing system or program.

This combination of sophisticated technology, proprietary coding system and benefit management methodology revolutionizes the ancillary category. Some of the benefits include:

  • Crystal-clear transparency
  • A more detailed and comprehensive view into ancillary products and services
  • An automated process that eliminates billing discrepancies or resubmittals
  • Integrated and consistent processes
  • Strategic program management

Taken together, the system leapfrogs over the existing hurdles while creating entirely new opportunities. It’s a win for vendors and payers, and ultimately for patients, who receive the optimal product or service.

“We’ve been called the ‘industry integrator’ by some people, and that’s accurate,” James said. “We are delivering a proven platform connecting payers with providers and vendors on the ancillary medical benefit front. It’s never been done before.”

To learn more about the Healthesystems Ancillary Benefits Management solution visit: http://www.healthesystems.com/solutions-services/ancillary-benefits

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Healthesystems. The editorial staff of Risk & Insurance had no role in its preparation.

Healthesystems is a leading provider of Pharmacy Benefit Management (PBM) & Ancillary Benefits Management programs for the workers' compensation industry.
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