Michael S. Goldstein, Esq. Michael S. Goldstein Co., L.P.A. Solon Business Campus

1. Ohio Workers’ Compensation Defense:“WINNING THE FIGHT”Society for Human Resource ManagementMarch 25, 2011 Michael S. Goldstein, Esq. Michael S. Goldstein Co., L.P.A. Solon Business Campus 31300 Solon Road, Suite 6 Solon, OH 44139 Phone: (440) 424-4071 Fax: (440) 248-5014 Email: mgoldstein@msglpa.com

2. Corporate Goal – Save money by reducing premium • Prevent workplace accidents • Certify “real” claims • Get the injured employee back to work • Defend suspicious claims • Settle “real” claims as early as possible

3. Purpose of the Workers’ Compensation System • Avoid time and expense of regular negligence litigation • Compensate injured employee regardless of employer’s or employee’s negligence • Tradeoff: lower $$ awards than in negligence court case

4. Employer Premium Allowed claims raise the employer’s premiums, sometimes greatly, in various ways Employer’s responsibility to ensure that only proper claims become allowed

5. WORKERS’ COMPENSATION SYSTEM • DUTIES & GOALS OF BWC • Solvency of State Insurance Fund • Compute reserves and premiums • Charge employers the correct amount • Ensure injured workers’ receive proper compensation and benefits • Adjudicate coverage and premium issues

6. DUTIES • BUREAU OF WORKERS’ COMPENSATION • Administer Actuarial Functions • Administer Claims • The BWC does NOT defend any claims on behalf of employers as an insurance company may do in a non-monopolistic state.

7. DUTIES • INDUSTRIAL COMMISSION • Adjudicate Claims

8. BWC FISCAL DUTIES • Insurance • Reserving • Actuarial • Premium

9. Rate Driven by Claims Activity Money Your claims activity will drive your rate. What do you want to pay?

10. Claim Costs Claim Costs Include: • the actual money paid on a claim (medical bills and compensation) • the reserve or money intended to pay estimated future costs for that claim Actual Estimated

11. Reserve Example Medical $ 5,000 $10,000 TT Compensation Reserves $50,000 Total Value $65,000 $15,000 Value without Reserves

12. 600 + Manual Classifications NCCI classifications began 7/1/96

13.  20 Claim Data Elements Yellow indicates when an IC order may be required MIRA

14. MIRA Reserve Calculation • MIRA Total Incurred Amount • - BWC Payments made to date • = MIRA Reserve

15. Need To Focus On Medical Management • On-going medical • expenses will matter • Pain management • Treatments • Prescriptions

16. Need To Focus On Return-To-Work • Medical Only Status = • zero reserves • Lost Time Claims are automatically reserved

17. Percent of Permanent Partial Awards • Converts a medical only claim to lost time • Reserve will be calculated MO LT

18. MIRA Reserves Stop When... • Final settlement/both medical and lost time • Claim changes from “active” to “inactive”

19. MIRA Reserves Stop When... • 390 days has elapsed since the most current compensation and medical dates. • No medical or compensation has been paid and the current system date minus the claim filing date is greater than 395 days • 90 days has passed since the Return To Work Date (only stops Temporary Total reserve “bucket”)

20. MIRA Reserves Stop When... • Date of death unrelated to injury - no • application for benefits filed • Death Claim - No evidence of a spouse or • dependent

21. Drug-Free & DF-EZ Workplace Program Discounts 20% 20% 20% 15% 10% 25% Random 25% Random 25% Random 10% Random 1 2 3 4 5 Years 5 Panel Drug Test * Potential discounts for qualifying employers

22. Group Rating • Allows an employer with low claims experience to earn an attractive discount. • Groups combine payroll and experience of the members to earn a significant discount. Discounts up to ?

23. REDUCING PREMIUM • Settle Claims – Eliminate Reserves • Negotiate from Strength • Claim Management

24. Claims Avoidance: Safety • Safety culture • Develop employee mindset where these events could never occur:

32. SAFETY CULTURE INCLUDES: • Collective Bargaining Agreement or Employee Manual • Involve supervisors • Involve Employees

33. Work Rules • All accidents must be reported at once, and define “at once.” • Specify reporting procedure • Post policy and procedure on bulletin board • Put policy and procedure in Employee Handbook

34. Work Rules • Each employee sign and date that he/she has received the policy, and understands it • Impose non-disparate discipline on those who violate the accident report rules, and impose it invariably! • It helps in defense of claims

35. If there is an accident: Fix the Problem • Find the cause • Engineer the cause out of the plant, and/or • Develop new/amended procedure to prevent recurrence • Add new written procedure to Procedures Handbook • Train your employees on new procedure

36. Supervisor Responsibilities - Train them in: • Record keeping • Keep a notebook • Call every absentee, to find out: • Why absent? If injury or illness, how/where occur? • Write memos to the file constantly • Bird-dog accident report • How these help in defense of claims

37. DRUG/ALCOHOL AND THE WORKPLACE • WHAT IS THEIR RELATIONSHIP WITH THE WORKERS’ COMPENSATION SYSTEM?

38. Claim is allowed if injury/occupational disease is incurred: • In the course of employment • Arising out of employment Injury does not arise out of employment if it is caused by injured employee’s being under the influence

39. Corporate Goals • Prevent workplace accidents • Prevent the use of drugs and alcohol in the workplace • Win claims based upon employees being under the influence

40. Post-Accident Drug Testing • ORC §4123.54 • Rebuttable Presumption if Test is Positive: • Claimant was “under the influence” at the time of the accident, and • Claimant’s being “under the influence” was the cause of the injury • Unless rebutted by Claimant, the injury is not compensable

41. Drug-free Workplace (DFWP) Discount ProgramOAC 4123-17-58 (E) Program Requirements (4) Drug and Alcohol Testing (b) Post-accident “All employees who may have caused or contributed to an on-the-job accident . . . shall submit to a drug or alcohol test.” [Emphasis added]

42. Post-Accident Drug Testing Pitfalls • Suspicionless test • Cannot take advantage of presumption

43. Post-Accident Drug Testing Pitfalls • Discipline for refusal to submit to suspicionless post-accident test • Could make employer liable for public policy tort suit

44. Public Policy Employment Tort • Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228 • Painter v. Graley (1994), 70 Ohio St.3d 377 (384-385)

45. Accident is Reported -- • What do we do? • Fill out Accident Report as completely as possible. • If medical treatment required, send claimant to our clinic, with a workers’ compensation department employee to facilitate and to observe.

46. If employee refuses treatment: • Injured workers have free choice of physician • But must notify employer (C-23) of change of physician

47. Accident Report • How did accident occur? Have claimant write it out in his/her own words, then date it and sign it. Lock the claimant into a story which he/she may later contradict under oath at one or more hearings, and/or in court. • Fill out medical release, and get claimant to sign it.

48. EMPLOYER: Don’t Be A Firefighter!

49. Initial Preparation • Is there any reason to suspect validity of claim? See “Do Not Certify” indicators.

50. If Claim is Filed and is Suspect • Work to have claim disallowed • If we can’t avoid alleged injuries, we limit the risk by defending suspect claims