Sarasota, FL (WorkersCompensation.com) – One of the most significant side effects of the current pandemic on the workers’ compensation system is delay. For claims professionals, it is creating a hellish nightmare as they attempt to work through claim defense difficulties.
“Delays increase the risk of accidentally waiving rights/defenses,” said Stephen Wyder, a New York-based attorney with Hamberger & Weiss. During a webinar produced by the National Workers’ Compensation Defense Network in partnership with the WorkersCompensation.com Center for Education Excellence he described what has become a typical ‘Terrible, Horrible, No Good, Very Bad Day’ for claims managers and offered strategies to mitigate their frustrations.
‘Harriet Harried’ is a claim handling specialist at Brand X insurance, Wyder offered. Among the 10 voicemails and 30 emails she’s received overnight is one from her defense counsel explaining that a judge has precluded the Independent Medical Exam because it occurred 10 days after the deadline. When her initial efforts to get an IME on time had failed due to the backlogs of IME vendors, she got the earliest appointment possible and filed a letter in the e-case file 5 days before the hearing explaining this. However, the 10-day backlog in document scanning by the New York State Workers’ Compensation Board meant her letter is still not viewable in e-case; so neither the judge nor her defense counsel even knew the letter existed.
“And so it goes, document after document, email after email, phone call after phone call the delays from COVID impact her cases, causing problems and headaches,” Wyder said. “What is a harried claim handler to do?”
The delay in available IME appointments and document scanning are but two of the myriad challenges that have become the norm in recent months, at least among claims handlers in New York. Additional delays relate to:
- Production of witnesses and documents; due to laid off/furloughed employees, little or no administrative staff working, and employees working from home without access to some or all records
- Production of routine claim information
- Medical treatments
“Delay is part of our world,” Wyder said. “It’s something that’s going to be with us for a long time to come. The question is, how do we minimize the impact on our cases? How do we avoid waiving rights/defenses on our claims?
Understanding that some things are taking much longer than they did before the pandemic is the first step. For example, processing documents now takes the NYS WCB up to two weeks from when the document is scanned to when it is viewable in the e-case file. Prior to COVID-19, it typically was viewable within a day or two.
“Another situation we’ve seen with alarming frequency is the WCB missed scanning documents. I’ve seen this a number of times in the last six months,” Wyder said. “The Board is taking documents where the claimant has multiple files traveling at the same time and instead of scanning them in the file you or counsel are submitting them in, they’ve been scanned into a completely different file.”
Documents that were supposed to be included for a pre-hearing conference have been scanned into a completely different file. “If that error is not caught that can lead to serious problems with your defense of a case,” Wyder said. “If documents are not filed timely in a controverted case you can waive the right to use those documents in defense of a case.”
In one recent situation, Wyder said a claimant had two cases; a new one and an older one. Attorneys submitted multiple documents for the newer case. But two weeks later, the documents did not appear in the file. “We actually had a note from the Board acknowledging receipt of the file,” he said. “We found them in the other, wrong file.”
Knowing things are taking longer, it’s important to take any and all steps to minimize delays. “Start the wheels turning as soon as possible,” Wyder advises. “Sometimes that’s not enough.”
He offered the following tips to help.
Create a Paper Trail. When a delay is inevitable, such as THE inability to meet the deadline for an IME, it’s important to create a document trail to demonstrate you’ve acted with due diligence. That means keeping records of any contacts made with employer representatives, such as the date, the method of contact used, and an explanation for why there has been a delay in getting a response from your client — furloughs, remote workers without access to documents, etc.
Also, Wyder advises keeping copies of any emails you’ve sent or received and making them available to show the judge the delay was not your fault.
“If you attempt to contact an individual by phone, make a note of the phone number, the date, and a brief summary of any message you left,” he said, “anything else that can be used to show you acted timely with due diligence. Anything is fair game.”
But just having the document trail is not necessarily enough. You then need to do something with it.
File the Documents. “File copies in the e-case file so they are in the record,” Wyder recommends. “Make sure you send copies of those documents to your defense counsel before any hearings or depositions. Defense counsel can use them as proof at a hearing or an attachment to a time extension request to explain why there’s been a delay and why an extension is needed.”
Also important is to notify defense attorneys of any delays in the production of documents before the hearings in which they are needed, or before any Board imposed deadlines. “If you wait until after the hearing or deadline to explain the delay, that increases significantly your chances of waiving rights,” Wyder said. “If your defense counsel and the judge can’t see a document in the e-case file they don’t know it exists.”
Avoid Multiple Case Numbers. A document with a single case number is less likely to be scanned into the wrong file. “But this is not a silver bullet,” Wyder said. “It doesn’t work every time.”
Highlight Errors. If the Board has scanned a document in the wrong file, Wyder advises submitting a file to the Board for each e-case file affected. “Let the Board know, ‘this is the document, this is the file you should have put it in, this is the one you did put it in,’” he said. “It minimizes risk of future confusion and the opponent saying the mistake was on your end.”