THE STATE COMPENSATION INSURANCE FUND (SCIF) AND WORKERS’ COMPENSATION: INJURED WORKERS, THE STATE FUND, AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

One of the largest providers of Workers’ Compensation Coverage in California is the State Compensation Insurance Fund.  The State Compensation Insurance Fund is commonly known as the “State Fund” or “SCIF.”

For many workers, it is important that they understand what is SCIF and how it operates.  The reason being is that many Injured Worker’s claims are being adjusted through the fund.

This article will discuss the State Compensation Insurance Fund and how Injured Workers should approach their claims if they are being handled by the Fund.

What are the State Fund’s Goals?

The State Fund’s goal is “to become California’s workers’ compensation carrier of choice.” Their purpose “is to provide fairly priced workers’ compensation insurance, help make workplaces safe, and restore injured workers.”

What are the Origins of the State Compensation Insurance Fund?

The State Fund was established in 1914.  It was created within the California State Constitution.

ARTICLE XIV Labor Relations, Section 4, includes “the establishment and management of a state compensation insurance fund.”

This was part of the Constitutional Mandate to provide a “complete system of workers’ compensation [which] includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment  as is requisite to cure and relieve from the effects of such injury.”

In sum, the State of California has a vested interest in the success and stability of the State Compensation Insurance Fund as a provider of workers’ compensation insurance.  This is interest based upon a constitutional mandate.

What is the State Compensation insurance Fund?

Per their website, the “State Fund is California’s leading provider of workers’ compensation insurance. Not for profit and funded solely by premiums and investment income, we’ve supported California’s entrepreneurial spirit and played a vital role in the state’s economy for more than 100 years. By innovating in areas such as workplace safety and injured worker care, we’re committed to serving California for the next 100 as well.”

State Fund offers diverse and comprehensive products and services that provide a strong and stable option for employers and injured employees with fast, reliable claims service and medical and indemnity benefits. State Fund’s accident prevention services—provided to policyholders at no additional cost—ultimately help save businesses money.

With approximately 110,000 policyholders, more than $918 million in premiums, and nearly $21 billion in assets, Californians rely on the security and certainty offered by State Fund to the state’s employers, particularly the small businesses and new ventures that are key to California’s economic recovery.

For many Employers, the State Fund is the carrier of “last resort.”  This is the place where they have to get their workers’ compensation insurance.

The Fund has two parts. There is State Fund Policy and State Fund Contracts.   The State Fund Policy is the section which handles private employers.   The State Fund Contracts is the section which adjusts various government agencies which contract with the State Fund to administer their claims.

What are the Core Values of the State Compensation Insurance Fund? Why Should You Be Aware of It?

Per the SCIF Website, the Core Values are “Respect Everyone. Create an environment where all people and perspectives are valued and teams work together to serve the diverse needs of California businesses. Be Innovative. Seek out solutions and consider new approaches to serve our customers and help improve California’s workers’ compensation system. Do What’s Right. Approach every situation with a passion to help, a desire to learn and a commitment to integrity—because doing the right thing isn’t always simple, easy, or clear. Show We Care. Listen to understand and invest the time and resources needed to help California employers and injured workers.”

These are important to know.   If you feel that your adjuster is not following the “Core Values,” they should be reminded of that them.  Most of the times, however, I have found that the SCIF adjusters act is a very professional manner.  Experienced SCIF adjusters are well trained.

How Do You Rate the State Fund as a Carrier?

These comments are from my own personal experience.

The State Fund has tremendous resources. They have lots of assets and monies. They are an innovator within workers’ compensation and have taken steps to claims managements that were ahead of their time.  They were paperless well in advance of others in the industry.

Their claims management approach tends to rely on their adjusters.   Their adjusters can be very good and well trained.  They handle the case management as opposed to counsel.  Their counsel tend to be more appearance oriented rather than directing the case management of the claim.

Overall, I think they do a good job in adjusting their claims.

The State Fund has been known to have an excellent training program for their attorneys. Also, they have a reputation as having very good appellate attorneys.   There are many reported cases involving the State Fund.

Have You Had Any Personal Experience With the State Fund?

Besides handling claims against them, I have had two claims and awards with SCIF as the carrier.   They have been decent in my requests for treatment off of my award.  I am relatively satisfied with their handling.

As an Employer, I have had claims filed against me.   They have done a decent job handling the claim.   I did run into a problem one adjuster on an issue.   It was not easy resolving the issue.   Further, the State Fund offers a number of educational programs for Employers which I attended and found helpful.   Overall, I am satisfied with their insurance.

As an Injured Worker, Should I Be Concerned that the State Fund is the Insurance Company?

No. You should not be concerned.  You should be vigilant concerning your rights and pay attention to the documentation you received.   On occasion, they will make a mistake. Other carriers do so as well.  Unlike other carriers, however, because of their status, they need to be “the standard” as to quality claims handling.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

THE SERIOUS CONSEQUENCE OF WORK INJURIES: INJURED WORKERS, SUICIDE AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

After an industrial injury, Injured Workers are faced with a number of life obstacles.   They have their body which has broken down in some shape or form and is in need of repair and healing. A claims process has arisen in which the Injured Worker’s Employee/Employer relationship has changed.   They have taken on a new relationship with a workers’ compensation insurances company which is both trying to assist with the process and trying to manage the risk by taking steps to minimize the claim. They have a new relationship with doctors who, while they have a relationship with them, they are also beholden to the employer and insurance company. Finally, their family relationship may have changed.  They may no longer be providing the economic contribution to the family.   They may no longer be able to help perform chores in the house.   They may need to be dependent upon others in the house for assistance.   They may be spending more time in the house with other family members leading to more conflict.

These stressors can lead to serious consequences. This article will discuss a recent study from South Korea of import, which discusses the risk of suicide in individuals who have suffered occupational injuries.

What Factors Did the Study Look at?

The study looked at a variety of factors: loss of income, return to work, the nature and extent of the disability, pensions, and family disruption.  Lee H, Kim I, Kim M, et al

Increased risk of suicide after occupational injury in Korea Occupational and Environmental Medicine Published Online First: 13 August 2020. doi: 10.1136/oemed-2020-106687

What Was Were the Conclusions?

Industrially Injured Workers are statistically at a higher risk of injury when compared to others that are economically active.

The study found that “Injured workers showed higher mortality from suicide for both men (SMR=2.22, 95% CI 2.14 to 2.31) and women (SMR=2.11, 95% CI 1.81 to 2.45) compared with the economically active population in Korea.” Lee H, Kim I, Kim M, et al Increased risk of suicide after occupational injury in Korea Occupational and Environmental Medicine Published Online First: 13 August 2020. doi: 10.1136/oemed-2020-106687

One interesting note, which is of import, was the more severely disabled workers had a lower suicide risk. Supra.   One reason hypothesized as the fact that they have received a disability pension.   This notion of disability pension, when translated into a United States analysis and within the State of California could imply a Social Security Disability Award, a Government Employee Disability Pension, such as CALPERS, LACERA, KCERA, CALSTRS or LACERS, or a Disability Pension from a Private Disability Plan.  Further, on Workers’ Compensation Case of a high percentage, such as 100 percent, the disability payments are substantial.

What Do We Need to Learn from the Study?

Most importantly, it is those who have injuries that cause the loss of employment, but which do not cause permanent disability, that we should be concerned with.  In essence, individuals who lose their job and does not get substantial financial assistance are at a greater risk for suicide. Increased risk of suicide after occupational injury in Korea Occupational and Environmental Medicine Published Online First: 13 August 2020. doi: 10.1136/oemed-2020-106687

What Should We Do?

For those Injured Workers it is important that efforts be made to get them treated promptly and get them returned to the workforce.   Both expediting treatment and the prompt provision of the Job Voucher would certainly assist in these cases. Further, there should be awareness to identify these individuals and get them psychological counseling through the workers’ compensation system or through an Employee Assistance Program.  Also, those Injured Workers may benefit from retaining Legal Counsel to assist them.   They may need assistance in the handling of their workers’ compensation claim as well as potential claims related to disability discrimination.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

HOTEL WORKERS AND WORKERS’ COMPENSATION: HOTEL WORKERS SUSTAINING INDUSTRIAL INJURIES AND WORKERS COMPENSATION: WHAT YOU NEED TO KNOW

Hotel Workers are at risk for injury.   They have demanding jobs that are time sensitive.  There are many tasks that they perform that can cause musculoskeletal disorders.   In addition, some workers use tools and materials which can place them at risk for skin and respiratory injuries.

There was a study awhile ago which analyzed work injuries in the Hotel Industry.   Moving forward from the study, you can see how the industry has dealt with the problem of  their high rate of workers’ compensation claims. At the time, the study found that the Hotel Industry was at high risk when compared to others. Disparities in the US Hotel Industry Susan Buchanan, MD, MPH, * Pamela Vossenas, MPH,  Niklas Krause, MD, PhD, Joan Moriarty, MS,  Eric Frumin, MA,  Jo Anna M. Shimek, MS, Franklin Mirer, PhD, CIH,  Peter Orris, MD, MPH,  and Laura Punnett, AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 53:116–125 (2010)

This article will discuss Hotel Workers, their tasks, their rates of work injuries and the tactics that Risk Management has used to address the high rate of work injuries.

Why Should Hotel Employees Be Concerned?

Any time an Industry is subject to significant amounts of work injuries, Risk Management will take measures to reduce work injuries. These measures may impact Hotel Employees and how they perform their work assignments.   Additionally, it may impact how Injured Workers will be treated after claims have been reported.

Why Are Work Injuries in the Hotel Industry Important?

When the study was done, it was noted that “[w]ithin the US hospitality industry, hotels, and motels employ 1.8 million workers [USBLS, 2007b].” Supra.

At the time, the study reported the significant number of work injuries that occur at Hotels. “In the United States, hotel workers are nearly 40% more likely to be injured on the job than all other service sector workers. Hotel workers also sustain more severe injuries resulting in more days off work, more job transfers, and more medically restricted work compared to other employees in the hospitality industry [USBLS, 2005]. Supra.

What is the Service Industry?

The Service Industry is part of the employment/business sector that provides customer services and occasionally provides goods.   The Service Industry does not manufacture products.

Examples of the Service Industry include food services: i.e., McDonalds, Starbucks, and Taco Bell, retail, i.e.  Target, Walmart and Food-4-Less, transport, i.e. Greyhound and Southwest Airlines, and distribution, i.e. Fed-Ex, UPS and DHL.

Manufacturing and Raw Materials are the other employment/industrial sectors.

What is the Hotel Industry?

The Hotel Industry is considered as part of the “Hospitality Industry”.   The term “Hospitality Industry” includes additional employers such as food service, drink service, event planning, theme parks and transportation.

Who are Hotel Workers? What Do They Do? What Types of Labor Makes Them at Risk for Injury?

Hotel Workers have many titles and perform various tasks.  Hotel Workers have many job titles such as bartender, banquet server, cashier, chef, cook, dishwasher, door person, host, hostess, housekeeper, lobby attendant, pot washer, room attendant, and stewards.

Hotel tasks can be broken down into five distinct categories.  These are Housekeepers, Banquet Servers, Stewards/Dishwasher, Cooks/Kitchen Workers and Other.

What Tasks Do Housekeepers Perform?

”Housekeepers perform guest room cleaning including making beds, vacuuming floors, cleaning shower walls and bathroom fixtures, dusting furniture, and pushing carts.”  Occupational Injury Disparities in the US Hotel Industry Susan Buchanan, MD, MPH, * Pamela Vossenas, MPH,  Niklas Krause, MD, PhD, Joan Moriarty, MS,  Eric Frumin, MA,  Jo Anna M. Shimek, MS, Franklin Mirer, PhD, CIH,  Peter Orris, MD, MPH,  and Laura Punnett, AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 53:116–125 (2010)

NOTE: Housekeepers perform physically arduous work.

What Tasks Do Banquet Servers Perform?

“Banquet servers provide food service such as carrying plated food from the kitchens to the customers, dispensing drinks, and supplying food to cafeteria and buffet services.” Supra.

NOTE: Banquet Servers perform physical activities which are time sensitive.

What Tasks Do Stewards/Dishwashers Perform?

“Stewards retrieve, sort, load/lift, unload, and return dishes, glasses, pots, utensils and silverware, and provide these items by pushing carts to cafeteria and buffet lines. In addition, stewards maintain cleanliness in food preparation areas.” Supra.

NOTE: Stewards/Dishwashers, like the Banquet Servers, perform physical activities which are time sensitive.

What Tasks Do Cooks/Kitchen Workers Perform?

Cooks lift, weigh, measure, mix, cut and grind food ingredients; they cook these ingredients and compose salads and other food for serving Supra.

NOTE: Cooks/Kitchen, like the Banquet Servers, perform physical activities which are time sensitive.   Likewise, they may also be involved in shift work.

What Tasks Do Others Perform?

All remaining jobs were categorized as “other.” Jobs classified as “other” were those that did not share similar job tasks or exposures with the other four key job categories. These included lobby attendant, cashier, door person, host/hostess, among others.  Supra.

NOTE: Other work may involve various physical activities as well as perform shift work.

What Are the General Types of Injuries that Hotel Workers Can Sustain?

Most commonly, Hotel Workers are subject to musculoskeletal injuries.

The study cited that “[a]mong Las Vegas hotel room cleaners, the prevalence of self-reported pain associated with work was 75% during the previous year [Scherzer et al., 2005]; 63% had had severe or very severe low back pain just in the prior month [Krause et al., 2005].” Supra.

Additionally, Hotel Workers who work with water or other liquids  or who use gloves as subject to “wet-work” injuries.  These injuries are to the skin, i.e. contact dermatitis.  For an article discussing “wet work,” click here.  Further Hotel workers may work with products that contain fragrances.   These products may cause respiratory injuries such as “occupational asthma.” For an article discussing “fragrance-related injuries,”  click here.

What Did the Study Tell Us About Hotel Workers?  As an Injured Worker, Should It Matter?

The study found that with respect to certain Hotel Employees that women had a greater rate of work injuries than men.  It found that there were some racial differences in that certain ethnic groups had greater injury rates than whites.

NOTE: With respect to these rates, it is this writer’s opinion that more data should be explored.  Non-English-Speaking workers may stay with a work position that is physically harming them longer than English Speaking workers.  One reason for them remaining on such as a job is that that their lack of English Fluency may limit their ability to obtain less physical employment.  As a result of this, they may at a greater risk of injury.  Thus, the ethnic group itself may not really be the issue. It may be more the ability of worker to seek other employment that is less injurious in nature.

How Does the High Rate of Work Injuries Impact Hotels?

Industries with high rates of workers’ compensation claims will seek to reduce their injury rates. Since the study, Hotel Risk Management has already taken steps to reduce injuries.   For those who visit hotels, it is apparent that what has been done.  Reducing staff hours and tasks translates into lower rates of injuries.   Many Hotels, under the auspices of being “green” encourage patrons to reuse towels and decline daily “room service.”   In doing so, labor time of laundry service and housekeeping is reduced.  Long term, if staff hours are reduced, staffing may in turn be reduced.  In sum, less employees.

With respect to food service workers, many catered events feature buffets and no longer offer table service.   Further, beverage stations are offered so that attendees can get their own coffee, juice, etc.. Again, less labor hours translates to less risk of injury.   In sum, less labor hours, less employees.

Additionally, Risk Management may engage in more surveillance of their employees via cameras to prove or disprove work injuries.   NOTE: This may be most effective with respect to specific injuries and not so much with respect to cumulative trauma injury claims.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

 

THE NECK DISABILITY INDEX AND WORKERS’ COMPENSATION: WHAT YOU NEED TO KNOW

Injured Workers, during the course of their workers’ compensation claims will be seen by treaters and evaluators.   These treaters and evaluators frequently have Injured Workers fill out self-reporting concerning their physical conditions.

This self-reporting is done with respect to various orthopedic body parts.   One of these requests for self-reporting is with respect to the cervical spine.  It is provided to the Injured Worker in the form of an index. One of these indexes with respect to the neck is the Neck Disability Index (NDI.)

This article will discuss the Neck Disability Index, what it is used for within the workers’ compensation setting, and how Injured Workers should address it.

What is the Purpose of Self-Reporting?

“Self-reported disability and other outcome measures are an important part of patient assessment and provide important clinical information to the clinician. Neck pain related disability and function need to be measured in order to assess pre and post treatment patient outcomes, as well as provide valuable information to other stakeholders.” The association between neck pain, the Neck Disability Index and cervical ranges of motion: a narrative review Emily R. Howell, BPHE (Hons), DC* J Can Chiropr Assoc. 2011 Sep; 55(3): 211–221. PMCID: PMC3154067 PMID: 21886283

In sum, an evaluator or treater can tell a lot of about a patient’s condition if the patient accurately describes their condition.   This can be an effective cost-saving measure to assist in treatment and evaluation.

What is the Neck Disability Index (NDI)?

The Neck Disability Index (NDI) is a 10-item questionnaire that measures a patient’s self-reported neck pain related disability. It was the first of its kind when it was published in 1991 in JMPT. The association between neck pain, the Neck Disability Index and cervical ranges of motion: a narrative review Emily R. Howell, BPHE (Hons), DC* J Can Chiropr Assoc. 2011 Sep; 55(3): 211–221. PMCID: PMC3154067 PMID: 21886283

The NDI addresses perceived neck pain and disability status.  The disability status addresses various issues such as work and participation in activities of daily living.

What Neck Injuries Can This Cover?

There are a variety of neck conditions that the NDI can address. This includes cervical spine conditions such as mechanical neck pain, cervical radiculopathy, whiplash related injuries, chronic, non-specific neck pain, chronic, non traumatic and chronic uncomplicated neck pain, and degenerative posttraumatic and other neck pain.

When You Have a Workers’ Compensation Case When Would You Take Fill Out Such an Index?

There are a number of occasions for which the NDI could be used.   First, it would be when an Injured Worker present with neck complaints.   Second, it would generally be used by Orthopedic Doctors or Chiropractors.  Third, it would be used for treatment for neck complaints.   Perhaps the Primary Treating Physician and Physical Therapists may want to have the NDI taken to measure complaints and possible improvement.  Therefore, the NDI can be done over a series of visits.   Fourth, it could be used by a Qualified Medical Evaluator or Agreed Medical Evaluator who is addressing neck complaints.   Fifth, it may be used by a Mental Health Practitioner to obtain a picture of the Injured Worker’s physical state.

What Does the NDI Address?

The NDI addresses 10 different specific categories. These categories are Pain intensity, Personal Care, Lifting, Reading, Headache, Concentration, Work, Driving, Sleeping, and Recreation.

How is It Scored?

“Each question is measured on a scale from 0 (no disability) to 5, and an overall score out of 100 is calculated by adding each item score together and multiplying it by two. A higher NDI score means the greater a patient’s perceived disability due to neck pain. The “minimally clinically important change” by patients has been found to be 5 or 10%..” The association between neck pain, the Neck Disability Index and cervical ranges of motion: a narrative review Emily R. Howell, BPHE (Hons), DC* J Can Chiropr Assoc. 2011 Sep; 55(3): 211–221. PMCID: PMC3154067 PMID: 21886283

Note: This is about “perceived” disabilities.  The score reflects how the Injured Worker feels about their condition. It is not dealing with the “reality” of the injury.   A high number can either reflect a severe impairment or exaggeration.  There is also criticism that the NDI does not address psychosocial or emotional aspects of neck disabilities. https://www.mdapp.co/neck-disability-index-ndi-calculator-222/

What are the Descriptions of these indexes?

Pain: the Pain Occurrences and the perceived severity

Personal Care: the Ability to Care for Oneself and Degree of Perceived Accuracy in Doing So

Lifting: the Capacity to lift different weights with or without pain

Headache: the Frequency and Perceived Severity of Recurrent Headaches

Concentrate: the Degree of Difficulty Encountered When Trying to Concentrate

Work: the Comparison Between Current and Past Work Capacity

Driving: the Ability to Drive and Length of Time to Drive Before Pain Occurs

Sleeping: the Quantification of Sleep Disturbance

Recreation: the Perceived Impairment to Partaking I Leisure Activities

What Are the Questions of Pain Intensity?

1. I have no pain at the moment, 2. The pain is mild at the moment, 3. The pain comes and goes and is moderate, 4. The pain is moderate and does not vary much, 5. The pain is severe but comes and goes, 6. The pain is severe and does not vary much.

What are the Questions for Personal Care (Washing, Dressing, etc)

1. I can look after myself without causing extra pain; 2. I can look after myself normally but it causes extra pain, 3. It is painful to look after myself and I am slow and careful, 4. I need some help, but manage most of my personal care, 5. I need help every day in most aspects of self-care, and 6. I do not get dressed, I wash with difficulty and stay in bed.

What are the Questions for Lifting?

1. I can lift heavy weights without extra pain, 2. I can lift heavy weights, but it causes extra pain, 3. Pain prevents me from lifting heavy weights off the floor but I can where they are position, for example on a table; 4. Pain prevents me from lifting heavy weights, but I can manage light to medium weights if they are conveniently positioned, 5. I can lift very light weights, and 6. I cannot lift or carry anything.

What are the Questions for Reading?

1. I can read as much as I want to with no pain in my neck; 2. I can read as much as I want with slight pain in my neck; 3. I can read as much as I want with moderate pain in my neck; 4. I cannot read as much as I want because of moderate pain in my neck; 5. I cannot read as much as I want because of severe pain in my neck; and 6. I cannot read at all.

What Are the Questions for Headaches?

1. I have no headaches at all 2. I have slight headaches which come infrequently; 3. I have moderate headaches which come infrequently. 4. I have moderate headaches which come frequently; 5. I have severe headaches which come frequently; and 6. I have headaches almost all of the time.

What are the Questions for Concentration?

1. I can concentrate fully when I want to with no difficulty; 2. I can concentrate fully when I want to with slight difficulty; 3. I have a fair degree of difficulty in concentrating when I want to; 4. I have a lot of difficulty in concentrating when I want to; 5. I have a great dealt of difficulty in concentrating when I want to; and 6. I cannot concentrate at all.

What are the Questions for Work?

1. I can do as much work as I want to; 2. I can do only my usual work, but no more, 3. I can do most of my usual work, but no more; 4. I cannot do my usual work; 5. I can hardly do any work at all; and 6. I cannot do any work at all.

What are the Questions for Sleeping?

1. I have no trouble sleeping; 2. My sleep is slightly disturbed (less than 1 hour sleepless); 3. My sleep is moderately disturbed (2-3 hours sleepless); 4. My sleep is moderately disturbed (2-3 hours sleepless) ; 5. My sleep is greatly disturbed (3-5 hours sleepless); 6. My sleep is completely disturbed (5-7 hours.)

What are the Question for Recreation?

1. I am able engage in all recreational activities with no pain in my neck at all; 2. I am able to engage in all recreational activities with some pain in my neck; 3. I am able to engage in most, but not all recreational because of pain in my neck; 4. I am able to engage in a few of my unusual recreational activities because of pain; 5. I can hardly do any recreational activities because of pain my neck; 6. I cannot do any recreational activities at all.

How Do Your Score the NDI?

The scores for the questions range from 0 to five. Therefore, scores can range from 0 to 50.   O would mean minimal neck pain with minimal limitation and 50 would represent severe pain and significant limitation.

After index is scored, it translates as follows: A NDI score of 0-4, would amount to an NDI percentage of 0-8 percent and be interpreted as a “none” as far as the level of disability.

A NDI score of 5-15, would amount to an NDI percentage of 10-28 percent and interpreted as “mild” as far as the level of disability. A NDI score of 15-24, would amount to an NDI percentage of 30-48 percent and interpreted as “moderate” as far as the level of disability. A NDI score of 25-34, would amount to an NDI percentage of 50-64 percent and interpreted as “severe” as far as the level of disability. A NDI score of 35-50, would amount to an NDI percentage of 70-100 percent and interpreted as “complete” as far as the level of disability. https://www.mdapp.co/neck-disability-index-ndi-calculator-222/

What Is there a Concern for Injured Workers Over The NDI?

This Index documents a variety of activities both “Activities of Daily Living” and “Work Activities.”  A credibility assessment would relate to whether the answers to the index matches up with the reported activities provided by the Injured Worker to the evaluators or treaters.   In sum, this Index can impact the Injured Worker’s credibility.

There are also problems with this Index for a variety of reasons. First, many terms used in the questions are “terms of art.”   By “terms of art,”  they actually have a definition which the Injured Worker is unaware of. For example, heavy weights may imply a 50 percent loss of the person’s lifting capacity.

When an Injured Worker does not understand the question, it can lead to an inaccurate answer. Also, there may be activities for which an Injured Worker does not engage in and therefore cannot answer in any meaningful fashion.   For example, in an extreme case, a blind person may read braille and the reading questions would not be relevant.

Is the NDI Different from the Owestry Low Back Pain Disability Index?

Yes.  The NDI address different issues. There is a focus on activities that are different such as  headaches, reading and concentration.    In Workers’ Compensation Impairment Analysis, due to the employment of the American Medical Association Guide to the Evaluation of Permanent Impairment, 5th Edition, there is a focus on an Individual’s “Activities of Daily Living.” For an article on Activities of Daily Living, click here. This index is goes slightly beyond the ADLs.

How Can These Indexes Be Important for a Workers’ Compensation Case?

The NDI can impact an Injured Worker in a few different ways.  It can impact credibility. For example, in a minor neck injury case, a high score on the index may indicate malingering.   On the otherhand, it could possibly indicate a misdiagnosis.   Finally, there can be some concern of other medical conditions that may be the source of the symptoms and impact on physical activities.

In sum, an abnormal score can trigger a “red flag.”   Further, comparison of the Injured Worker’s actual activities to the NDI answers may also raise issues of credibility.

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

 

 

MEDICARE SET-ASIDES (MSA), LIFE CARE PLANS, FUTURE TREATMENT PLANS AND WORKERS’ COMPENSATION: WORKERS’ COMPENSATION, COMPROMISE AND RELEASE SETTLEMENTS, AND MEDICARE: WHAT YOU NEED TO KNOW

There are many Injured Workers who are on Medicare or are considered as Medicare-Eligible.  Many of these Injured Workers wish to settle their workers’ compensation cases via a “Compromise and Release” settlement.   This type of a settlement is generally considered as a “buy out” of the claims and as a “buy out” of the Injured Workers entitlement to “lifetime medical” care paid for by the workers’ compensation insurance. In these circumstances, Medicare’s interests need to be addressed when there is a settlement. Medicare Set-Asides is the means upon which the interests of Medicare are considered.

This article is a Part II, of a prior article on Medicare Set-Asides.   This article discusses the “nuts and bolts” that are to be contained within the MSA.  To achieve this goal, Life Care Plans, Future Medical Care Plans, Prescriptions Drugs, and Life Expectancy will be discussed.  If you are interested in the Part I of the article, click here.

What is a “Life Care Plan” for MSA Purposes?

“A “Life Care Plan” is a dynamic document based on published standards of practice, comprehensive assessment, data analysis, and research that provides an organized concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health needs. A life care plan is appropriate when the claimant’s injury or disease is extensive and serious, e.g., paraplegia, quadriplegia, brain damage. Although submission of a life care plan is optional, you are required to include drug and dosage lists. Include all pricing charts, cost projections, pricing information, and explanatory narratives and analyses.” [emphasis added]  Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

Note: Irrespective of the Medicare Issue, the parties in catastrophic injury or chronic health need case may utilize Life Care Plans to assist in resolving cases.   They are not exclusive to the development of a MSA.

What Types of Reporting is included in a “Life Care Plan”?

“When the parties to a WC settlement present CMS with “life care plans” or similar evaluations prepared by non-treating physicians to support and justify their proposed WCMSAs,

Medicare will consider accepting such evaluations if the physician does all of the following:  Examines the claimant; Reviews the claimant’s medical records; Contacts any of the claimant’s treating physicians (if applicable); Is available to answer CMS’ questions; Prepares a report that summarizes the above; and Offers a written medical opinion as to all of the reasonably anticipated future medical needs of the claimant related to the claimant’s work injury or illness/disease.   Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Note: Non-physicians frequently draw up “Life Care Plans.”

What is a “Future Medical Care” Plan?

In cases where there is not a catastrophic injury or one with chronic health needs, there is still the need to provide a Future Medical Care Plain.

“A Future Treatment Summary lists all expected care by type, level, frequency, cost per event, and total for all expected future medical and pharmacy care. A Future Treatment Plan is required in the absence of a Life-Care Plan. Future Treatment Summaries do not require the same stringent evaluation as a Life Care Plan; however, they delineate the treatment care pricing expectations by the submitter for the purpose of WCMSA calculation. The Future Treatment Summary gives the WCRC some insight into the pricing methods used by the submitter, and should not be construed to carry the same weight as treatment records or Life Care Plans.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Note: These Plans address “expected” care.   This may not be a realistic picture of the individual.  For example, no one would expect a post-surgical infection and need for hospitalization.   This can be a large cost but would not be considered as expected.   Also, someone with comorbidities, i.e. diabetes, which may complicate treatment.  This may not be considered within this framework as expected as well. In sum, the MSA may not be an “accurate” assessment of one’s care cost.   Rather, it is merely an “expected” assessment.

Does CMS Accept MSA Plans on Face Value?

No. CMS will not necessarily accept a plan based upon the fact that it was prepared and is in the correct format

“Please note that such a life care plan or evaluation is not automatically conclusive. The CMS may not credit the report if there is information that calls the evaluation or plan into question for some reason, such as contrary evidence, internal conflicts, or if the plan is not credible on its face.Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Note:  Either by mistake or intentionally, there may be some intent to skew a MSA to lower the amount.  These attempts may be flagged by CMS and there may be a need to increase the MSA amount.   To be fair, there have been times where carriers have provided for treatment monies beyond which may have been required. This is done where they have provided for treatment which was not necessarily to be considered as “expected.”

Should MSAs also Address Applicant’s “Current Treatment” for Their Industrial Injury?

Yes. Current treatment information needs to be provided within a MSA.

“Current Treatment Provide the treatment/services that the claimant regularly receives. The current treatment should give an indication that the work-related condition is stable (or at least is not getting worse).” .Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

The summary of current treatment should be supported by a minimum of two years of medical documentation and a comprehensive payment history from the WC Carrier (including indemnity payments). See Section 10.7 for details on medical records submission. If the work-related injury occurred less than two years from the date of the WCMSA submission, supporting medical documentation should date back to the date of the work-related injury. Also note any relevant past treatment, such as surgery, that the claimant may have undergone.” .Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1 [emphasis added]

Note: The “two years” part of this statement is important.   In order to complete and get an MSA approved, the gathering of an Injured Workers treatment and pharmacy records from all providers, industrial and non-industrial, is important to get a MSA completed and approved.

How Is Future Treatment Determined?

Future Treatment is determined as follows:  “[d]etermine the cost of future medical expenses and prescription drugs that are directly related to the injury or illness suffered by the worker. This amount can be determined by reviewing medical records and past medical and prescription expenditures. The WCMSA must show the amount of money that should be invested to provide for the yearly expenses for the worker’s life expectancy.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

Is “Life Expectancy” an Issue with MSAs? Why is “Life Expectancy” Important?

 “Life Expectancy” is a term frequently used by individuals in the “actuarial” community.  There are segments of the medical and business world that makes calculations as to when someone is expected to die.   This is then reduced to a number.   So, an a Female 65 years of age may have a 21.6 year life expectancy.   These numbers were taken from a Life Expectancy Table generated from statistics from the U.S. Government.   This calculation is based upon the general population.   Those in the medical and business worlds will do further analysis. They will look at whether the individual has morbidities such as diabetes, hypertension or kidney disease.   There are medical conditions that can impact one’s life expectancy.   In sum, “Life Expectancy” can have a base which is calculated on the general population.   It can then be lowered based upon the individual’s morbidities.   By shortening the “Life Expectancy,” the cost of the MSA can be reduced.  Therefore, insurance companies will want to get a lower life expectancy to save money.

Note: In order to protect Medicare’s interests, a Workers’ Compensation Medicare Set-Aside (WCMSA) should be funded based on the life expectancy of the claimant unless state law specifically limits the length of time that WC covers work-related conditions.

What is the Philosophy of the MSA Calculation and the Amount?

“The key is that both the principal amount that is to be set aside and the anticipated interest that it will earn must be sufficient to provide for the worker’s future medical treatment and administration fees for the worker’s lifetime.” .Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

What Should MSAs Document?

The MSA should “[i]dentify specific types of medical services or items, the frequency and duration of the medical services or items, and the projected costs of the medical services or items related to the work injury or disease that are expected in the future in light of the claimant’s condition; Include ICD-9 or ICD-10 diagnosis codes if available. Do not use ICD-9 codes for submissions with a DOI on or after 10/1/2015; do not mix ICD-9 and ICD-10 codes in one submission. (ICD-9 codes will continue to be allowed on submissions with a DOI of 9/30/2015 or earlier.) ; Appropriately identify the information by both Medicare-covered services and services not covered by Medicare. • Future treatment must be based on the evaluation and recommendation of a physician(s), e.g., the primary care physician, orthopedic surgeon, or other specialist (if applicable).  An independent medical examination (IME) may be sufficient under certain circumstances, e.g., claimant has not received treatment in several years, and there is no primary care physician.  The claimant’s condition and medical care required in the future must be documented in written evaluations, reports, and/or letters from a physician(s). Living arrangements that affect the medical benefits of the settlement should be noted, such as nursing homes or assisted living facilities.” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

How Do MSAs Address Prescription Drugs?

Prescription drugs must be included even if the claimant is not yet a Medicare Part D beneficiary, if the current treatment records or future care plan support the use of drugs in treating the claimant’s WC injury.

What is an Example of a MSA Breakdown?

“ Example: The primary care physician states that during the claimant’s life expectancy of 30 years, it is estimated that he or she will need the following Medicare-covered services.

  1. A physician visit every 6 months with an estimated cost of $75 per visit.
  2. Physical therapy (PT) – 12 sessions per year for only the next 3 years with estimated cost of $50 per session
  3. An x-ray every 3 years with an estimated cost of $100 per x-ray (including interpretation)
  4. An MRI every 5 years with an estimated cost of $1,500 per MRI (including interpretation)
  5. Maintenance dose of prescription pain medication at $8 per month for 12 months per year
  6. Inpatient hospitalization every 10 years with an estimated cost $10,000 per hospitalization
  7. The projected total costs in this case are $49,180 as listed below; Physician visits @ $4,500 ($75 x 2 x 30) ; PT @ $1,800 ($50 x 12 x 3) ; X-rays @ $1,000 ($100 x 10); MRIs @ $9,000 ($1,500 x 6); Medication @ $2,880 ($8 x 12 x 30); Hospitalizations @ $30,000 ($10,000 x 3)” Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide Version 3.1 May 11, 2020 COBR-Q2-2020-v3.1

What If I Need Legal Advice?

If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.

 

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