By Gary Evans
Occasionally, occupational health professionals can be involved in a legal case when there is some dispute over an employee’s injury, workers’ compensation, or a monetary settlement. From a legal perspective, “freezing the facts” as soon as possible will pay off as the case moves forward, said attorney William Lowry, JD, president of Nyhan, Bambrick, Kinzie & Lowry in Chicago.
“We want cases to be closed, be it by settlement or by trial,” Lowry said at a webinar presented by the Association of Occupational Health Professionals in Healthcare (AOHP).1 “By freezing the facts in accident investigation and claim mitigation, you reduce your overall workers’ compensation cost. Aggressive management of your claims will foster fewer cases, which allows for a more thorough accident investigation process.”
Frequent Communication
This requires communication between the medical and legal team when the case is pending, through frequent emails, calls, or text messages. Case files should be reviewed monthly or bimonthly.
“There’s no better way to ensure that the left hand and the right hand are moving in concert than to have regular file reviews,” Lowry noted. “Cases are disposed of probably 33% [faster].”
This review and communication time includes strategic conferencing as you determine where you are in the case and what is needed to move it forward.
“The more aggressive you are, the more immediate and thorough you are relative to your accident investigation, the more information you’ll be able to gather and share with your vocational [workplace] experts,” Lowry said.
It also will provide key information to the facility’s independent medical examiner (IME), who will try to determine if the accident or injury truly is work-related.
“IME doctors want everything, so in my cases I prepare a medical chronology to share with the examining expert,” Lowry explained. “We also prepare a medical background letter, which really lays out just the facts — everything that is pertinent to the case. We gather and send all the treatment records and medical records we can get our hands on, any radiographic film, videotape of the job or location.”
This sometimes requires a strategic decision, because anything included in the IME report must be shared with the opposing attorneys.
“Videotapes and surveillance that you’ve gathered can reduce your exposure, but it also can affect the credibility of the claimant when you use that information during your cross examination,” Lowry said.
Be Purposeful
Typically, cases will proceed to trial or to a settlement, with the latter the preferred outcome for the healthcare organization.
“I want you to be purposeful relative to your settlement track,” Lowry said. “Most claimants will say they went to an attorney because of a non-returned phone call or an outstanding medical bill. It’s important that you have an ongoing conversation with those who are alleging an accident, until they’re represented by counsel.”
This process, legally termed an “in-house pro se program,” may eliminate or reduce any settlement and avoid the trial track. Even so, some cases linger on indefinitely and must eventually be resolved through some kind of settlement.
“It might be because of a non-responsive opponent; it might be because the issue of ongoing treatment just lingers and lingers,” Lowry said. “I started doing ‘resolution days,’ where we get a room and invite opponents in to make sure all are at the same table. We work through trying to settle the case. Again, what are we trying to do? We’re trying to close cases. The best case is a closed case.”
If trial seems inevitable, Lowry recommended calling for a pretrial hearing, a venue where a final attempt at settlement can be made.
“Request for hearing,” Lowry said. “That’s something that I want to make sure that employers are utilizing. We have the right to set a case down for hearing, based on our own motion. Again, we cannot allow these cases to just linger and sit. That’s how exposure builds.”
At the end of the AOHP presentation, Lowry was asked by an occupational health nurse practitioner: “What would you recommend occupational health do to prevent a case from getting to a lawyer in the first place? Anything you would recommend we document in our notes to help if things do get to a lawyer?”
“In concert with [your facility], be responsive. I know usually you are, but if the individual calls with a question, answer it,” Lowry recommended. “You want the claimant to know you’re trying to work with them with a common goal. The common goal should be a return to unrestricted, gainful work as soon as possible. With that, everyone wins. The claimant wins, you win, and the employer wins.”
Further, creating a strong medical history of the claimant cannot be emphasized enough.
“I’ve had cases where because of great histories being taken on the front end by our occupational experts, we look up and we’ve got three or four different histories [by the claimant] at the time of trial,” Lowry said. “That becomes just in and of itself a basis to dispute accidents. Get a good medical history — not only work-related pathologies, but non-work-related. In one case, an individual was alleging CRPS [complex regional pain syndrome], and because of your work on the front end, we were able to determine the person had lupus long before the alleged work accident.”
REFERENCE
- Association of Occupational Health Professionals in Healthcare. Freeze the facts: The role of aggressive accident investigation and claim mitigation. Aug. 22, 2023.
Occasionally, occupational health professionals can be involved in a legal case when there is some dispute over an employee’s injury, workers’ compensation, or a monetary settlement. From a legal perspective, “freezing the facts” as soon as possible will pay off as the case moves forward.
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