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The Curse of Confidentiality: How What You Don’t Share Can Hurt You

The Curse of Confidentiality: How What You Don’t Share Can Hurt You

By Anne Hernandez and Jacquelyn Miller

Originally appeared in the July 2019 issue of the Public Risk Magazine.  Read more at primacentral.org.

Employers and claims administrators have a great deal of information available to them at all times — and it’s information that can often impact a workers’ compensation claim, either negatively or positively. Knowing when and what information to share is critical to the accurate administration and defense of claims.

Hopefully, those of us in the workers’ compensation field have a genuine appreciation for maintaining confidentiality throughout a workers’ compensation claim. We all know you shouldn’t discuss claim specifics with friends or family or — even if you’ve got “the best story ever” regarding a specific claim — at the office holiday party. Common sense, right?

So when is the appropriate time to share? There are certain instances where an employer, claims administrator, defense attorney or even a treating doctor have critical information regarding a claim that needs to be shared … with the right party.

What each party needs to know.

Each person involved in the claim needs information for a variety of reasons:

An employer is looking for information regarding the employee’s ability to return to work. What work restrictions might they may have? Will those restrictions be permanent or temporary? Will the employee be off work for an extended period of time?

The claims administrator’s responsibility is to gather information to determine accurate and timely benefits. He or she will be looking for information on return to work, ongoing need for medical care, residual disability and the relationship of the injury to benefits claimed.

When a case is litigated, a defense attorney is assigned; he or she needs specific information to resolve the disputes involved in the claim. That information may come from the employer, claims administrator, physician(s) or even the injured worker.

The risks of under-sharing.

Let’s take a look at a few examples of how under-sharing information, or failing to provide needed information, can impact a claim.

Delayed information about a new injury. An employee has been telling his coworkers about his “major crash” while water skiing last weekend. “Man, it was something! I’m lucky I walked away!” The following week, the same employee files a workers’ compensation claim for an unwitnessed knee injury that happened as he was walking up some stairs at the office. While seeking treatment at the designated occupational clinic, he made no mention of the earlier water skiing accident. Without knowledge of the previous incident, his knee injury is considered minor; with no compensable time loss, the injury is accepted and benefits are paid.

Some time later, the employee’s personal treating physician recommends a total knee replacement and the employee is claiming compensable time loss relating back to the minor, accepted knee injury. Only now do his coworkers report the water skiing information to their supervisor.

In this case, a delay in reporting important information regarding recent activity resulted in a claim being accepted for an injury which may not have been work-related. The delay eliminated the value of a timely and reasonable investigation in to injury causation.

What should happen? The employer should actively collect any relevant information from coworkers whenever an unwitnessed injury occurs. A supervisor should check in with the worksite at the time of injury for helpful information; employees will often answer direct questions, but not offer information unless specifically asked. This information should be immediately provided to the claims administrator before any decisions of compensability are made.

Return-to-work information. An HR director plans to return an employee to work at full duty on June 1st, but hasn’t shared that plan with others involved in the claim. The employee is back to work for two weeks before the claims administrator is notified.

In this case, under-sharing information could lead to an overpayment of benefits. Additional risks include increased claims costs for additional care if the employee has not yet been medically released to work and her recovery is delayed, or a delayed claim resolution if the overpayment is disputed.

What should happen? Employers should communicate with the claims administrator when they begin planning an injured employee’s return to work, to ensure a safe and appropriate return to work and to determine any change to benefits.

Questionable employee activity. The Police Chief receives an email asking for donations for a charity run in which one of her officers is competing. The email explains the officer has been training for the past few months, and is very excited about the run! The Chief agrees it’s a great charity and donates $50. The same employee has been medically disabled from working for the last three months due to an ankle injury; she has been restricted from running, but no information regarding the upcoming charity run is provided to the claims administrator.

In this case, not sharing information could lead to benefits being overpaid to an employee who can be returned to work.

What should happen? When an employer receives information indicating an injured worker may be involved in an activity beyond their work restrictions, he or she should contact the claims administrator and provide as much information as possible to evaluate and investigate the situation.

Notice of representation. A Public Works department supervisor receives a legal notice of representation regarding a workers’ compensation claim; he files the notice in his desk and forgets about it. Six months later, the city receives a Hearing notice regarding this claim and forwards it to the claims administrator.

In this case, the under-sharing risks might involve increased claims costs for legal representation and defense, or from potential claim liability for failure to evaluate the claim and provide or deny benefits in a timely way.

What should happen? Notice of a claim from any source should be shared with the claims administrator immediately. There are specific timelines in place to accept or deny benefits; a failure to abide by these timelines may result in a claim being accepted that could have been successfully disputed.

Employment agreements. An employer provides salary continuation benefits to certain staff. When an employee was temporarily disabled, her salary continued but no one notified the claims administrator. Salary continued at the same time disability benefits were paid from the claims file, resulting in an overpayment.

In this case, there is a risk of increased litigation costs should the issue of reimbursement become a dispute. Other risks include an overpayment of benefits, or delayed claim resolution due to ongoing litigation.

What should happen? Upon reporting the claim, the employer should notify the claims adjuster any time salary is continued. Providing the claims administrator with information regarding the salary continuation program in advance of claims may prevent overpayment of benefits when claims occur.

Communication is key.

For many employers, workers’ compensation is just another task on their list; it may or may not be part of their everyday work. We’ve reviewed some basic instances where under-sharing may lead to risk — now, let’s take a look at how we can mitigate it.

Establish clear communication expectations between the employer representative and the claims adjuster. If workers’ compensation responsibilities are transferred to a new person or department, make sure they know who handles the workers’ compensation claims and how to reach them. Unsure what information to share? The best bet is to call the adjuster and have a discussion.

Communication between the employer and the defense attorney should involve the claims adjuster. Litigation management doesn’t happen in a vacuum and the claims adjuster cannot manage the workers’ compensation case without this communication.

At every step in the life of a claim, sharing the correct, appropriate information is critical. Remember: As part of the workers’ compensation team, your contribution and communication is key to a successful claim!

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