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Tip of the Week: Protecting your facility when claims are litigated

Contemporary Long-Term Care Weekly, October 25, 2007

Workers' compensation claims tend to proceed to litigation when employees feel they are not getting paid what they should, or when the insurance company doesn't think an employee is disabled to the extent claimed, according to Martin Schneider of Schneider and Ricci, a Salem, MA-based firm specializing in workers' compensation.

"The vast majority of cases that go to litigation usually involve disputes over what a person can do," says Schneider. If a claim proceeds to litigation, here are some proactive steps you can take to protect your facility:

1. Maintain close contact with insurance adjuster and insurance attorney. Most nursing homes are privately insured, and in most cases total control of the legal defense of workers' compensation claims is given to the insurance company, says Jeffrey Chanay, a lawyer with Entz and Chanay in Topeka, KS. To avoid being left out of the process, it's critical that you stay in touch with the company's adjuster and attorney and make sure they know you are available to testify, provide any needed paperwork, and are willing to work closely with them, he says.

2. Honor the attorney-client relationship. If you send a communication to an injured worker regarding work status or modified duty, be sure to send it to the employee's attorney as well. "That's a problem that comes up all the time," says Schneider.

3. Attend legal proceedings. Since employers tend to be the best sources of information about claims on an ongoing basis, Schneider encourages employers to attend all legal proceedings-even if you are not testifying-for several reasons:

• Gives your facility a personal identity. Your appearance enables the judge or mediator to "put a face" to your facility, and shows you are concerned that the appropriate result is reached and that you intend to do the right thing, says Schneider.

• You're available as a key resource. Being present at proceedings gives the insurance company another source of information. This is critical when the insurance company or judge requires information on the spot, says Schneider.

  For instance, sometimes an employer is aware that an employee suffered a prior injury, or that the employee was working a second job at the time of the injury. Chanay recalls a case in which there was a large settlement and the nursing home administrator later lamented that if only the insurance company had asked her about it, she might have provided some information that could have changed the outcome.

• Observe attorney in action. Being on-site gives you the opportunity to monitor the performance of the attorney representing the insurance company. Then you can determine whether he or she is adequately prepared and providing accurate information regarding the case.

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