Workers Comp Matters

AI may be changing the Workers’ Compensation insurance industry, but that doesn’t diminish the importance of a personal touch. Guest Michael Kelley leads the HUB International claims adjustment team in New England and explains how bringing cases to a satisfying conclusion for all involved can be as much of an art as a science. There’s room for both automation and technology and face-to-face discussion, understanding the nuances of every situation, and negotiating. Kelly shares his process and how he puts his 40+ years of experience to work, from soup to nuts. Hear what he considers and how he works with both employers and third-party insurers to reach a settlement that fairly compensates a worker while making sure a claims provider stays in business. What role will today’s emerging AI technology play? Kelley says it can be an excellent tool for efficiency, but nothing will replace an adjuster’s wisdom and experience. If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at JPierce@ppnlaw.com. Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Michael C. Duff, professor at the St. Louis University School of Law, explores the evolving field of mental health injuries in the Workers’ Comp world. Stress and workplace trauma is real, and recognition of these injuries is developing, but there are still complicating factors. Did workplace stress cause a heart attack, or was there underlying heart damage? What constitutes post-traumatic stress, and at what point did that stress occur on the job? There’s a lot to unpack. Daily on-the-job stress versus something truly unusual at the workplace; cumulative versus traumatic stress; faking versus real injury; causation; and privacy (HIPAA) all factor into a decision regarding compensation. We all know a broken arm when we see it. But understanding a damaged mind can be tricky. First responders, air traffic controllers, and factory workers all face stresses, but not all stress is the same. Hear how jurisdictions differ in their view of psychological injury Workers’ Comp claims. If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at JPierce@ppnlaw.com. Mentioned in This Episode: Agis v. Howard Johnson Co. Previous Appearance on Workers Comp Matters, “For Every Wrong, A Remedy? When A Workplace Event Harms A Family” Previous Appearance on Workers Comp Matters, “Presumptions in the Age of Covid-19” Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Bogdan Savych, a senior policy analyst at the Workers’ Compensation Research Institute (WCRI), discusses his new paper, written with David Neumark, entitled “Impact of Attorney Representation on Workers’ Compensation Payments.” WCRI studied the impact of attorney representation when it comes to indemnity payments (income replacement benefits) for injured workers in what, on its face, is supposed to be a straightforward Workers’ Compensation system. What impact, statistically, does having an attorney represent an injured worker have on payments? Not surprisingly, Savych’s research found that for workers, having an attorney represent them in their claims can result in higher payments, but there is still work to be done. And, as host Alan S. Pierce notes, it’s even possible involving an attorney can save the Workers’ Comp insurance company money by identifying other parties who are liable for the injury through negligence. But then, what about attorney fees? There are myriad factors to consider, and, as we know, every state is different. If you’re an attorney who represents injured workers in Workers’ Compensation claims, or you’re otherwise connected to the world of Workers’ Comp, consider joining WCRI as a member. If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at JPierce@ppnlaw.com. Mentioned in This Episode: “Impact of Attorney Representation on Workers’ Compensation Payments,” by Bogdan Savych and David Neumark Free Report: “WCRI Medical Price Index for Workers’ Compensation, 16th Edition (MPI-WC)” by Workers’ Compensation Research Institute Previously on Workers Comp Matters, “The Attorney’s Role in Workers Compensation” Learn more about your ad choices. Visit megaphone.fm/adchoices

Our military and public service veterans deserve our best. Guest Alex Dell is a longtime Workers’ Compensation and Veterans Affairs compensation attorney, often representing injured public servants or military veterans. He’s also a former Division One hockey referee. In both roles, Dell explains how taking a broad view is crucial. The key, he says, is to avoid “tunnel vision.” Learn to see issues from multiple angles. Take in the whole picture. In hockey, keep an eye out for penalties behind the play, and when a worker is hurt, especially a military veteran, watch for multiple claims to pursue as you seek to best represent your client. When we talk about veterans’ claims, we’re looking at three areas: pension benefits, compensation for injuries, and “DIC” benefits, the dependency and indemnity claims for families who lost a loved one or who have a loved who was disabled. It can get tricky, and there are unscrupulous “representatives” eager to trick potential clients into making payments that are already covered by the compensation programs. Representing public servants and veterans is nuanced. Some disabilities aren’t physical. Post traumatic stress disorder (PTSD) may not be evident at first but can manifest itself later. That’s still a real disability, and vets deserve compensation to help them recover. Some veterans may not even know help is available even a decade or more after service. And clients may also not understand a VA “denial” isn’t the end of the road. There are alternatives and appeals. Do you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear? Contact us at JPierce@ppnlaw.com Mentioned in This Episode: Pro Hac Vice Article, “Presumptive Evidence Of Causation In Workers’ Compensation Claims Related To World Trade Center Rescue, Recovery And Cleanup Operations” “Your Intent to File a VA Claim,” U.S. Department of Veterans Affairs “The Michigan Goal,” YouTube Learn more about your ad choices. Visit megaphone.fm/adchoices

In this special episode, co-host Alan Pierce shares his thoughts on an auspicious occasion, celebrating his 50th year practicing Workers’ Compensation law. Alan’s son and law partner, Judson Pierce, interviews his father. Fifty years of anything is a long time. Alan passed the bar in 1974 and began practicing Workers’ Comp law. He’s seen a lot. Incremental changes seem to pass slowly, but over half a century, Alan has had a front row seat to what’s become a revolution, from his start as a claims adjuster to attending law school at night to founding his own Workers’ Compensation law firm. Since its introduction more than a century ago, Workers’ Comp evolved into a specialized, and highly complex system aimed at making injured workers whole and getting then back on the job while controlling costs, rehabilitating workers, and understanding and managing ever-changing workplace environmental challenges. Today’s “gig economy,” artificial intelligence, the influence of business lobbying, and the decline of union political influence are ongoing issues that will shape Workers’ Compensation rules as the system heads into its second century. Hear Alan’s perspective on the changes he fears may ultimately harm workers if we don’t continue to uphold our long-held moral obligation to protect each other. Do you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear? Contact us at JPierce@ppnlaw.com Mentioned in This Episode: Michael Duff, “How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain ‘Adequate’ Without Defining ‘Adequacy’” Learn more about your ad choices. Visit megaphone.fm/adchoices

How will AI help us help workers injured on the job? What voids will AI help us fill as we work to help people get back to work and life? Treatment authorizations, document delivery, and automation of mundane tasks such as signature acceptance help an injured person get back on the job faster and speed operations for the adjuster. Let’s work together. As guests from digital communications platform Gain Life Tycho Speekenbrink and John Peters explain, claims are complicated. But automation can help speed the process by analyzing how prior cases and even patient locations have worked in similar cases. Today’s tech can help both sides eliminate bottlenecks, including routine treatment approvals, medical appointment scheduling, even transportation to and from care. Hear how AI can accelerate and simplify the process. Can AI help adjusters get past routine tasks and learn a little bit about empathy and collaboration, things that work for both the worker and the adjuster? Workers’ Comp is struggling to get past the old “snail mail” and paper files era. Hear how AI can advance reaction time and attract new, younger, talent that has grown up in the digital age. The systems aren’t yet perfect, but you don’t want to be left behind. Change (for the better) is coming. AI won’t replace adjusters and attorneys, but it will help them do their jobs better. Mentioned in This Episode: “AI Sparks New Era In Empathetic Workers' Comp Claim Management,” PropertyCasualty360, by Tycho Speekenbrink and John Peters (free registration required) OpenAI ChatGPT Google Gemini AI Coursera Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Claire C. Muselman’s recent publication in WorkersCompensation.com encourages adjusters to take a new look at Workers’ Compensation’s goals. Maybe we should be less skeptical of workers and show empathy. In other words: Be Nice. We all have biases. Sometimes they get in the way and keep us from caring. From social media to traditional learning to storytelling and anecdotes, how do those biases influence our assumptions when it comes to making workers whole and getting them back on the job after a workplace injury? In her article, “Empathy’s Impact on Workers’ Compensation: Elevating Care for Injured Workers,” Muselman writes, “Empathy is the ability to understand and share the feelings of others. In the Workers' Compensation field, it involves recognizing and acknowledging the emotions of injured workers, seeing things from their perspective, and responding with compassion and understanding. Empathy goes beyond sympathy, which is pity or sorrow for someone's misfortune. Instead, empathy involves a deeper connection where we can truly comprehend and relate to another person's emotional experience.” Wouldn’t it be great if we could step away from an adversarial position, stop trying to assign blame, and start thinking about the injured people and their families? It’s a new approach but perhaps a better one. Learn more about your ad choices. Visit megaphone.fm/adchoices

Let’s talk about alternative medicine and coverage under Workers’ Comp’s hodgepodge of rules. Guest Maya Rashid is a recent graduate of Penn State Law and the winner of the College of Workers’ Compensation Lawyers’ student writing competition with her article “Revitalizing Recovery: Exploring Workers’ Compensation Coverage of Alternative Medicine.” Fighting for clients seeking treatment through alternative medicine under Workers’ Comp? Even traditional medicine can get tangled in case law and treatments, but when it comes to alternative medicines, where do you, and your clients, stand? It’s a confusing issue, trying to figure out how injured workers can choose their own care and recovery path versus what insurers and jurisdictions determine is “reasonable.” The word “reasonable” varies across jurisdictions. Not to mention the confusion of medical bill coding. If you, and your clients, are confused, you aren’t alone. Learn more about your ad choices. Visit megaphone.fm/adchoices

When workers are recovering from a workplace injury, there are psychosocial factors, mental factors, which can impede the recovery from physical injuries. Things such as a worker’s recovery expectations, fear of pushing too hard or performing activities that may restrict the benefits of physical therapy and hamper recovery, or even new negative feeling about their job and perceived injustices over how a supervisor or employer reacted to the injury. Can these “mental” factors prolong recovery and delay a return to productive work? Guest Vennela Thumula, Ph.D., works at the Workers’ Compensation Research Institution – a nonprofit, objective provider of research and analysis – and is the lead author of this year’s WCRI report, “Importance of Psychosocial Factors for Physical Therapy Outcomes.” The role of psychosocial factors is increasingly being recognized as a major factor in recovery. Understanding a clients’ mental state – and its impact on recovering – may be just as important as their injury diagnosis when it comes to achieving full compensation and helping them return to a full, productive life. Just because you can’t see an injury doesn’t mean it isn’t there. What you hear on this episode of Workers’ Comp Matters may change how you approach each client’s individual situation. Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode opens a new topic for the Workers Comp Matters podcast: repetitive stress injuries, sometimes referred to cumulative trauma, acquired on the job. What happens to someone when someone develops a workplace injury, physical or mental, that can’t be traced back to a single, isolated event? Or what if the injury is the result of cumulative trauma developed under multiple employers? Bodily wear and tear, the result of daily repetitive labor, is real. Think of the brick mason on his knees for decades or the mechanic crawling under vehicles and lifting heavy items, or the carpal tunnel injuries from working at a keyboard week in and week out. These injuries pose challenges when asked for a “date of injury” on a claim form. For attorneys representing victims of repetitive stress, clarity is key, explaining clearly to the investigator that there is no single date. The injuries were the result of the entire period of labor. Lawyers need to think creatively to fully communicate that the injury is the direct result of the workplace. We all “break down” as we age. For a successful claim, attorneys must show that the traumatic “wear and tear” injury is a direct result of the workplace, not simply the result of ordinary aging. Mentioned in this Episode: Massachusetts Zerofski Case Learn more about your ad choices. Visit megaphone.fm/adchoices

The “times they are a changing” in the world of Workers’ Compensation, a system developed when the relationship between workers and employers were more clearly defined. Guest Emily Spieler is an accomplished author, former professor, practicing attorney, and government official with a career that spans the space of workers’ rights, safety, and compensation. The 100+ year old system of Workers’ Comp has evolved and continues to change and adapt. But the bottom line is we still have a duty to care for injured workers. How do we fit today’s challenges into an old model? There’s a growing debate today in both legal and government circles over the definition of worker/employer relationships. The world today is more complex than when compensation rules were developed, and the nature of work has moved beyond old factory and mining jobs. Contract workers, gig employees, and working remotely are shaking up the working world. Who should cover an Uber driver? As unions fade, who helps injured workers understand their rights, file claims, and protects them from retaliation for asking for compensation? Robotics, AI, rush warehouse fulfillment, and even jobs that haven’t been invented strain the limits of our current system. This is a fascinating conversation. Mentioned in this Episode: “(Re)Assessing The Grand Bargain: Compensation For Work Injuries In The United States, 1900-2017,” Emily A. Spieler, Rutgers University Law Review “US Court Rules Uber And Lyft Workers Are Contractors,” BBC “Oklahoma Workers’ Comp Opt Out Ruled Unconstitutional,” Insurance Journal Learn more about your ad choices. Visit megaphone.fm/adchoices

A person getting hurt at the workplace is never funny. But it can be instructional to examine some of the strangest ways people manage to become injured at work. Hear about some “interesting” cases. A schoolteacher whose leg “fell asleep” while he sat in a classroom falls trying to stand up. He broke his femur. Is he entitled to compensation from his employer? An Amtrak baggage handler was visiting the restroom when someone tossed a firecracker into the room. Startled, he fell and was injured; is Amtrak responsible? How about a city worker who says he picked up a firecracker he found on the job, and it mysteriously exploded, injuring him? People get hurt at work, but as these and other cases illustrate, it’s not always the responsibility of the employer. (And sometimes, workers do silly things…). Mentioned in this Episode: Tom Robinson’s Top 10 Bizarre Workers’ Comp Cases For 2022 Steven Silberberg v. Palm Beach County Schools Phillip Durance v. National Railroad Passenger Corp aka Amtrak Dylan Junior v. Illinois Workers’ Compensation Commission Jonathan Hollis v. Acoustics, Inc. and Associated General Contractors of MS, Inc. Donald Weed v. Spraying Systems, Co Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.) Learn more about your ad choices. Visit megaphone.fm/adchoices

HIPAA, the Health Insurance Portability and Accountability Act, is 27 years old. For better or worse, it was designed to protect patients. But in reality, it has also hampered attorneys in their quest for medical records critical to ensuring fair compensation for injured workers. Guest Jared Vishney is the founder and CEO of the medical record retrieval technology company Arctrieval. He says most firms wait more than three months for medical records, some as much as four months or more. HIPAA regulations (and penalties) have turned medical record holders so risk averse that it’s hard for patients to get their own records. The rules around HIPAA and medical records are murky. How much time do institutions have to turn over requested records? How can attorneys and clients push providers to turn over records faster? Workers’ Comp attorneys may find themselves caught in a disconnect between medical record technology and a web of legislation that is supposed to oversee electronic health record systems and rates for copies of those records. It’s hard for clients and attorneys to know they’re getting the full picture, and costs can run into the thousands of dollars. Hear about tips and tricks for getting the records you need. If you’ve been frustrated by a tangled medical records system, this episode of Workers’ Comp Matters is for you. Mentioned in this Episode: “Health Insurance and Portability and Accountability Act,” Centers for Disease Control and Prevention “Section 164.524 - Access of individuals to protected health information,” Legal Information Institute, Cornell University “Medical Records: Fees and Challenges Associated With Patient Access,” GAO report to Congress Learn more about your ad choices. Visit megaphone.fm/adchoices

Did we ever learn a lot during the once-in-a-generation health event that was COVID! Guest Dr. Bogdan Savych of the Workers Comp Research Institute (WCRI) is a policy analyst who is studying the lasting effects of the illness, as well as lingering cases of Long Covid. What is “Long COVID?” How big is the problem? Is it even real? Is a pandemic an occupational disease? Savych is investigating who should pay and who decides how much a claim is worth. Imagine months, maybe years, of shortness of breath, brain fog, anxiety, and chest pain. The question is whether the workplace is responsible. For Workers’ Comp attorneys representing clients, this becomes an issue of connecting the workplace to the initial infection, then to “Long COVID,” and finally to the worker’s ability or inability to return to work. If you’re confused, this is the place to start. Four years after the onset of COVID, we’re still learning new things and still committed to helping workers recover and get back to their jobs. Mentioned in this Episode: Workers Compensation Research Institute, WCRI “Long COVID in the Workers’ Compensation System in 2020 and 2021,” by Dr. Bogdan Savych Dr. Bogdan Savych's previous appearance on Legal Talk Network Centers For Disease Control And Prevention, CDC, “Long COVID Or Post-COVID Conditions” National Institute for Occupational Safety and Health, NIOSH Learn more about your ad choices. Visit megaphone.fm/adchoices

Our understanding of work and workplaces may have been forever changed by the COVID pandemic. Many workers today are working from their own homes or conducting meetings by phone during their occasional trip to an office. When you’re working from home and slip and injure yourself in your own bathroom during the workday, who is responsible? If you are hit by a careless driver while conducting a business meeting by phone in your car, who pays? Guest Cathy Surbeck of Surbeck Law is the incoming president for the Workers Injury Law & Advocacy Group (WILG). She shares how WILG members are grappling with a legal system that is struggling to keep up with the evolution of the workplace. And while financial support is crucial in any workplace injury, so is medical care, rehabilitation, and recovery. After COVID, many care providers have shifted to a hybrid office and telehealth model. It remains to be seen whether this model can help an injured worker fully recover and return to work. This is a challenging time for the Workers’ Comp field. Everything is changing, from where we work to how we receive care, and even how resolution hearings are held. Don’t be left behind. Learn more about your ad choices. Visit megaphone.fm/adchoices

Guest Dave Pederson is the producer of a new film, “Americonned,” that examines how the past few generations of workers have suffered from income inequality and been crushed by big business and its government influence. Wages aren’t keeping up, yet productivity has rocketed, on the backs of the American middle class. The rich are getting richer, the middle class is seeing the bottom drop out. Why? And what do seismic shifts in wealth mean for the future of the middle class, unions, and the lawyers who represent them? Organized labor and a strong middle class have been the drivers of Workers’ Comp protections. Without them, we may need to worry about the future. But as Pederson explains, a renewed interest in union membership and strength could be the turning point for workplace protections. If the American working class is being conned, how can Workers’ Comp lawyers help? Mentioned in this Episode: Pitchfork Economics podcast Laffer Curve Trickle Down Economics explained “Amazon Loses Bid To Overturn Historic Union Win At Staten Island Warehouse,” NPR “UPS Deal Raises The Bar For Worker Demands,” Axios Starbucks Workers United Gaslit Nation podcast Kurt Andersen, “Evil Geniuses,” President Lyndon B. Johnson “War On Poverty” speech “Student Loan Debt Crisis,” Education Data Initiative Learn more about your ad choices. Visit megaphone.fm/adchoices

What about the rights of an injured worker’s spouse and family members after a work-related injury or illness? Guest Michael Duff, law professor, former blue-collar worker, and expert on Workers’ Comp walks us through the California “Kuciemba Case,” a case where an employer may have violated COVID-19 pandemic regulations, infecting several workers. Victim Peter Kuciemba was infected and later his wife contracted the illness and ended up on a ventilator. Is he entitled to Workers’ Compensation? Beyond that, what about his wife? This is a tough issue that comes down to what’s called the “exclusive remedy,” meaning Workers’ Compensation protections are understood to be responsible for workplace injuries, replacing civil tort liability. But if a spouse isn’t part of the employment contract, does “The Grand Bargain” apply? Remember the sickened meat packers during the pandemic. The legal system said family members of workers who infected them, as a result of contracting the illness at work, cannot sue the workplace. Workers’ Comp trumps the civil case, even in case of employer negligence. Now, let’s go deeper. What about a non-family member, such as a romantic interest, or a friend? This episode goes down a rabbit hole. But if you’re an attorney representing workers in workplace injuries, you’ve got to be thinking this way. How far does exclusive remedy go? Mentioned in this Episode: “At Least 59,000 U.S. Meat Workers Caught COVID-19 In 2020, 269 Died,” PBS Newshour Learn more about your ad choices. Visit megaphone.fm/adchoices

Let’s talk about the F-word in Workers’ Compensation: Fraud. Guest Connor Thomson is a second-year law student at Villanova University who won the College of Workers’ Compensation Lawyers John F. Burton Jr. Law Student Writing Competition with his paper “Fight Fire With Fire: The Need For Carriers To Be Afforded More Duties And Privileges To Combat The Pandemic Of Workers’ Compensation Insurance Fraud.” He explores an interesting, challenging issue in Workers’ Comp: Are employees sometimes cheating the system? Workers’ Comp insurance fraud is a multibillion issue. Thomson takes a deep dive. The system does a lot of good, and employer fraud hurts workers. It happens. All fraud is wrong. But sometimes employees cheat, they collect a check for a workplace disability, but they work on the side, maybe under the table. That’s not a victimless crime either. It hurts us all, Thomson argues. Sure, employers do check on workers who file claims, including the use of private investigators. And that comes with its own issues. But Thomson says controlling insurance fraud may have its place. If carriers can’t investigate, does everyone suffer because of higher insurance costs? This is an intriguing issue. Mentioned in this Episode: Workers Comp Matters, “Dissecting Fraud” Connor Thomson “Fight Fire With Fire: The Need For Carriers To Be Afforded More Duties And Privileges To Combat The Pandemic Of Workers’ Compensation Insurance Fraud” College of Workers’ Compensation Lawyers John F. Burton Jr. Student Writing Competition Coalition Against Insurance Fraud Coalition Against Insurance Fraud study and findings Insurance Journal articles on Workers’ Comp fraud Jesse Maxwell v. AIG Domestic Claims Frontline, “The Myth Of Workers’ Compensation Fraud” Workers Comp Matters, Legal Talk Network, archived episode, “The History of Workers’ Compensation With John F. Burton Jr.” Learn more about your ad choices. Visit megaphone.fm/adchoices

Helping workers and their families get back on their feet after a workplace injury or other workplace-displacing health event takes more than legal aid, insurance, and even doctors. Injured workers are people first, and people have emotional needs. Guest Danielle Troxel is managing director of Kind Souls Foundation, a non-profit, donation and volunteer driven organization dedicated to helping displaced workers with the emotional support and services navigation assistance they need to recover. Many of us see ourselves as our job. It’s part of our identity. Being stripped of that routine may lead to feelings of isolation or loss of identity. Having someone to talk to about those feelings can help people adjust and move forward. Assistance is offered discretely, even anonymously. There’s no need to provide a case number or any details. No insurance companies need to be involved and no medical records are needed. Kind Souls Foundation simply wants to help. If a client or someone you know has been displaced from work due to a health event and could use emotional support, they can contact the Kind Souls Foundation at their website, https://www.kindsoulsfoundation.org/ and schedule a session. Help is available online through a face-to-face video connection, through text and chat sessions, or by phone. Sponsorship opportunities are available at the Kind Souls Foundation website. Individual donations are accepted online at https://kindsoulsfoundation.charityproud.org/Donate . Mentioned in this Episode: Kids’ Chance Learn more about your ad choices. Visit megaphone.fm/adchoices

Marijuana was once fodder for stoner comedies and standup routines. But today, medical marijuana is a serious matter in Workers’ Compensation. Fair compensation, and proper medical treatment, is not always as clear as it should be. Laws evolve by the day, state by state. Guest Jenifer Dana Kaufman is a Pennsylvania Workers’ Comp attorney who has developed a wealth of experience where marijuana law collides with fair compensation and treatment. In this episode of Workers’ Comp Matters, hear how Kaufman unraveled a complicated case and how competing state and federal laws tangle the issue of appropriate care when marijuana is involved, even when prescribed in a state where medical marijuana is legal. Intent and medical recommendations matter, but can insurers be required to pay for a drug that is technically illegal under federal law? What’s the difference between an insurer paying directly for marijuana vs. reimbursing a patient? Take a deep dive into how marijuana therapy as a Workers’ Comp issue continues to develop. Learn more about your ad choices. Visit megaphone.fm/adchoices