PANC Conference Discussions:

1. UNEMPLOYMENT WORKERS’ COMPENSATION EXCESS PROFESSIONAL LIABILITY PANC ConferenceDiscussions:

2. 20092010 State $3,662,916.40 $13,543,404.91 Federal $480,575.18 $1,655,614.91 Local & CN $1,798,879.06 $4,337,430.92 Unemployment Cost Comparison

3. A quasi-judicial evidentiary hearing at which sworn witnesses and legal representatives offer testimony and evidence appeal

4. EMPLOYER has the burden of proof Must prove by greater weight of the evidence that claimant was discharged for SUBSTANTIAL FAULT or MISCONDUCT in connection with the work. Discharges

5. By statute, includes: Positive drug/alcohol test Certain types of drug convictions Consuming drugs or alcohol at work Significant impairment at work by illegal drugs or alcohol Loss of license, bond, permit, surety, etc. Misconduct

6. NCGS 95-230 Controlled Substances Examination Act Drug and alcohol testing and test results must be authenticated with scientific or medical knowledge. Need witness from testing lab (Medical Review Officer) or a “litigation packet.” Without testimony -- case is hard to prove Drug & Alcohol Test Cases

7. Time-certain disqualification by default 9 weeks Can be as many as 13 weeks if aggravating factors or as few as 4 if mitigating factors This is a “lesser” penalty, and is applied in cases where the conduct does not rise to the level of misconduct Substantial Fault

8. Six factors to considered when a claimant is discharged for attendance policy violations. (Lindsey) 1. When the claimant was notified of the attendance policy; 2.The degree of departure from expected conduct that warranted either a demerit or other disciplinary action; 3.The degree the policy accommodates the need to deal with the exigencies of everyday life; 4.The claimant's ability to make amends for rule violations; 5.The amount of counseling the claimant received concerning violations; and 6.The amount of warning the claimant had that rule violations may result in discharge Attendance and Tardiness

9. APPLEWHITE January, 2008 North Carolina Court of Appeals ruled if final incident of absenteeism or tardiness leading to discharge is for reasons beyond the control of claimant, then claimant is not disqualified Attendance and Tardiness

10. TIPS & SUGGESTIONS

11. The Right Witnesses Witnesses with first-hand knowledge The person with the MOST knowledge about what happened is not necessarily the best witness if their testimony would be hearsay. The Golden Rule

12. Not only summarize your case, but your only opportunity to ARGUE for why your side should prevail. Rarely used effectively by non-lawyers State why you believe you should win Always Make Closing Statements

13. A hearing is legal, and the topic being discussed is business, so only talk about business. Do your best to keep frustration, surprise and anger out of your voice and demeanor. Just the Facts

14. Everything is reviewable on appeal, IF you object during the hearing. If the Appeals Referee overrules your objection, let it go. Your objection on the record can be grounds for a new hearing on appeal. Preserve Appeal Rights

15. Notify employees their jobs are in jeopardy Document counseling and warnings Give Notice

16. Make sure your policies and procedures are clear and understandable Follow your own policy Be Clear

17. Question is NOT whether you had the right to fire an employee. Question is whether a former employee is entitled to benefits. Reality

18. Unemployment Insurance is a fault-based system Employer must show fault in discharge Was it misconduct or substantial fault in connection with the work? Fault

19. Lack of skill, ability or training is not disqualifying reason for separation. Prove ability with testimony from past If you know someone isn’t doing their best, say it and try to prove it Lack of Ability, Skill or Training

20. 96-13(b)(1) Settled law that school employees are not entitled to benefits in between school terms if they have a reasonable assurance of returning to work in the same or similar capacity in the upcoming term Reasonable Assurance

21. 96-14(2b) discharged from employment because a license, certificate, permit, bond, or surety that is necessary for the performance of the individual's employment and that the individual is responsible to supply has been revoked, suspended, or otherwise lost to the individual, or the individual's ability to successfully apply or the individual's application therefor has been lost or denied for a cause that was within the individual's power to control, guard against, or prevent. No showing of misconduct connected with the work or substantial fault connected with the work not rising to the level of misconduct shall be required in order for an individual to be disqualified for benefits under this subdivision. Loss of Licensure or Certification

22. 96-8(10)f No substitute teacher or other substitute school personnel shall be considered unemployed for days or weeks when not called to work unless the individual is or was employed as a full‑time substitute during the period of time for which the individual is requesting benefits. For the purposes of this subsection, full‑time substitute is defined as a substitute employee who works more than 30 hours a week on a continual basis for a period of six months or more. Substitute Teachers

23. Early November • Information from Traci Waters Year-End Unemployment Billing

24. The NC General Statutes are online at the General Assembly’s webpage, www.ncleg.net • NCGS Chapter 96 – ESC Laws • 96-8 Definitions • 96-13 Eligibility • 96-14 Disqualification (Separations) • ESC Regulations: www.ncesc.com Where is the law?

25. Workers’ Compensation

26. FY 2011 Comparisons Total Payments-State & Split

27. Main “Driver” Expenses FY11 $ 49.9M

28. Workers’ Compensation Reform LegislationHouse Bill 709Protect and Put NC Back to WorkSigned by Governor June 24, 2011

29. Suitable Employment – New Claims Suitable Employment will be defined both pre and post MMI. “Make work” will be allowed as approved by health care provider. Includes part-time positions. After MMI, job is suitable if employee is capable of performing work (physical and mental limitations, vocational skills, education, experience, located within 50 mile radius of home). Wages, benefits hours, age and vocational interest will no longer be relevant to determine whether a job is suitable. NC GS 97-2(22)

30. Suitable Employment – Risk Management • Provide Job Description for Physician • Includes Full and Part-Time Positions • Rate of Pay – No Longer a Determinant • JOB OFFER IS KEY • Return Injured Employees Back to Work before and after they reach maximum medical improvement (MMI)

31. Misrepresentation of Physical Condition – New Claims No compensation will be allowed to an employee who provides inaccurate information during a post-offer physical, or while completing a post-offer medical questionnaire. Employer may prove that employee’s misrepresentation should bar him/her from receiving benefits. - Employee knowingly/willfully makes false representation - Employer relied upon false representation when hiring - Causal connection between false representation by employee and injury or occupational disease NC GS 97-12.1

32. Misrepresentation of Physical Condition – Risk Management • Create and maintain detailed records of any and all representations made by employees about their medical conditions • - At the time of hire • - When completing a post-offer medical questionnaire • - Prepare to testify that you relied on those representations and it was a substantial factor in hiring employee

33. Increase in Benefits – New Claims TTD benefits will be capped at 500 weeks from the date of first disability. NCGS 97-29(b) TPD benefits will be increased to 500 weeks total (not from date of injury). NCGS 97-30 Death Benefits increased to 500 weeks and funeral benefits increased to $10,000. NCGS 97-38 and 97-40

34. Change of Treatment or Health Care Provider – All Claims Employee has a right to seek a second opinion evaluation, and parties have 14 days to agree on the second opinion before employee will be allowed to file a motion on the issue. When employee files a request for a Change of Treating Physician, the Commission will have to find a preponderance of evidence that change is reasonably necessary to effect a cure, provide relief or lessen the period of disability. If an employee wants to change their treating physician, a request in writing to employer is encouraged before seeking treatment. If employee fails to seek permission in writing and treats without authorized, the Commission “may” disregard the doctor’s opinion. NCGS 97-25

35. Broader Communication Rights Process for Requesting Information - All Claims Employer must request medical records from physician - Compensable claims, authorization from employee is not necessary; Denied claims, employer must give contemporaneous notice to employee. Employer may write to the doctor with contemporaneous notice to employee and ask questions relevant to inquiry/injury. Employer can schedule a telephone conference with the doctor if information requested is not received. Employee is allowed to participate. Employer will be allowed to provide information not contained in the medical records to the doctor for comment (surveillance, prior medical records doctor many not be aware of, etc.). Employer must provide copy to employee and employee will have right to object. . NCGS 97-25.6

36. Second Opinions – RatingsAll Claims Employee may seek a second opinion on a rating-- With doctor of their choice (paid by employee ) Commission “must” disregard doctor’s opinions on all issues other than rating NCGS 97-27

37. Benefits Paid to Employee While on Workers’ Compensation • 100% Medical • 66 2/3 Lost Time (Indemnity) • Vacation & Sick Leave Credits ( 240 hrs. maximum) • Paid Hospitalization Insurance • Longevity Pay (over 10 years) • Retirement • Use of Leave to Supplement Weekly Compensation

38. Workers’ Compensation Risk Management Know Your Claims Review Claims about every 3 months Report claims timely Communicate with Injured Worker Utilize PPO Medical Network Communicate with Adjusters Attend Mediations Support Work Comp Administrators (WCAs) Return Employees Back to Work Exercise Rights under the new WC Reform

39. Excess Professional Liability • Covers Employees and Volunteers • Automatic Enrollment • No Cost to Employees or LEAs • No Association Membership is Needed • Professional Activities • Reimbursement for Attorney Fees • www.professionalliabilitync.com

40. THANK YOU Eileen Townsend, CPCU, AU Section Chief Insurance eileen.townsend@dpi.nc.gov 919-807-3522