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The TPA, Defense Counsel and You Part II

Friday, February 14, 2020

This is being written in follow up to my last post where the Third Party Administrator attempted to advise the Self- Insured Employer and his attorney that the only person with decision making authority was the Claims Adjuster.  It again becomes clear in this post that the TPA is not interested in doing what is best for the Self-Insured Employer or the claim.  


Self-Insured Employers each have service instructions about vendors to be used.  It is a Self-Insured Employers right to designate what vendors are to be used.  The TPA must abide by those service instructions.  If you are seeing counsel, or IME physicians or surveillance companies being used  in your claims that you are not familiar with the best place to start to look is what instructions you have given the TPA in working on your claims.    If you do not assign appropriate vendors as this TPA said here, your vendors will be picked for you.

The Self-Insured Employer who was involved in this TPA driven claim, requested that the service instructions be changed to reflect that litigated claims were to be sent directly to counsel and that the counsel would be handling the disputed claims and that counsel would select the IME physicians and the Surveillance company.   The TPA refused to put this counsel’s name  in the service instructions and would only list “Ohio counsel.”  The service instructions were amended to include that “Ohio counsel” would have the right to pick the surveillance company and the IME physician.  Yet again, a TPA interfering in a business relationship between the Self-Insured Employer and counsel.  Let me reiterate the Self-Insured Employer has the right to alter those service  instructions to reflect the wishes of the company. 

The Self-Insured Employer advised that on this particular claim they would not be using the TPA vendors.  The TPA’s response was that they would not pay those vendors through the claim.  The Self-Insured Employer stated that all bills for the IME and the surveillance company be sent to them directly.   Tracking costs of the claim, seems a task appropriate for a TPA but this one will only do it if the Self-Insured Employer uses their vendors.    TPA’s are more interested in doing tasks that are beyond them, i.e. the practice of law and creating cost centers for their company rather than doing the tasks that they are specifically paid to perform.

When all was said and done,  based upon the recommendations of counsel for an IME physician and excellent work done by the Investigative Company including WEBtap, video surveillance,  the Self-Insured Employer secured a win across the board,  winning at both DHO and SHO Hearings.

The message is clear here,  if Self-Insured Employers want to be successful in litigated claims they need to become informed enough to make decisions for their company and have those trained to practice law take the lead.

Employer violated FMLA by not freezing its point reduction policy during approved FMLA leave:

Monday, January 27, 2020

Dyer v. Ventra Sandusky LLC, 934 F. 3d 472 (6th Cir.) 

Employer had a no fault attendance policy in which points were assessed for absences. Once 11 or more points accumulated, the employee was terminated. The employer also had a policy where employees could reduce the number of points. For each 30 day period of perfect attendance, one point would be reduced. Vacations, bereavement, jury duty, military duty, union leave and holidays counted toward the 30 days, and the employee would not be penalized for taking those types of excused absences to accrue the  30 days resulting in a point reduction.

Employee Dyer had migraines and took approved intermittent FMLA leave. Each day he was off for approved FMLA, the 30 day period was reset to zero. He eventually accumulated 12 points under the no fault attendance policy and was terminated. He brought suit in Federal Court alleging violation of FMLA.

The Sixth Circuit Court of Appeals held that the employer’s attendance point reduction schedule violated the FMLA because it interfered with Dyer’s right to take FMLA leave ad be restored to an equivalent position, even though the taking of the FMLA did not in itself count toward the 11 point limit. The taking of the FMLA should have “frozen” the accrual of perfect attendance during the leave, as the other types of specified leave, ie vacation, bereavement, jury duty, military duty, union leave and holidays.

Not every workers’ compensation claim requires the help of an attorney. But if you need one, choose experience, reputation, and most importantly, someone who understands how you do business.

LL Patterson LLC is founded on the principle of providing clients with exceptional and results oriented service. The singular mission of LLP is to aggressively and exclusively protect Ohio Employers’ rights in workers’ compensation, OSHA, VSSR, and employment related issues. Whether you’re in the medical or healthcare industry, the construction field, education, the corporate world, or small business, the goal remains the same: to reach final closure of your workers’ compensation claim in as little time as possible while minimizing cost.

Lisa L. Patterson understands the complex intricacies of the Ohio workers’ comp system and has sixteen years experience working with this very specific and sensitive form of law. A seasoned Ohio employers’ advocate, she will work to ensure that all parties’ claims are fairly and efficiently executed to protect your interests and assets.