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The TPA, Defense Counsel, and you (The Client)?

Thursday, October 17, 2019

I recently received this email from a Third Party Administrator.  It is clear that this Claims Supervisor believes that it is her right to interfere with the legal relationship between attorney and a self-insured employer, but it raises the question- what should be the central objective for each of the professionals on your team?  And more importantly what is your goal when utilizing defense counsel.  Do you hire defense counsel to take hearings?  Do you hire defense counsel to develop both a factual and medical defense?  Do you want decisions made on your behalf in litigation by non-attorneys? 

The impetus of this email is a growing trend in which litigation is being controlled by non-attorneys to further the economic objectives of the huge conglomerate Third Party Administrators and more specifically,  blatant engagement in the unauthorized practice of law.  Litigated claims are being directed not by the client through advice of counsel,  but by non-attorney claims adjusters.

With that being said, in the 25 years I have practiced in this area, I have encountered amazing, dedicated Third Party adjusters.  These experienced and seasoned professionals work hand in hand with defense counsel to provide for their client the best defense in Ohio Workers’ compensation claims.  This teamwork is the stuff of 20+ years of successful representation of employers in Ohio with the main objective to 1) have the claim denied; 2) have the claim closed; 2) have the claim settled.  These should be the only objectives of a workers’ compensation program.  Not every case requires litigation, but when it does a client is best served if the Attorney can provide legal advice to the client to achieve those objectives.

It bears repeating, the Client has the authority to accept recommendations made by an attorney for legal defense.  Defense counsel’s duties require them to communicate with, advise, counsel and advocate for our clients, the self-insured employers.

What you don’t see in this email:

  1. A discussion of what would be best for the claim.
  2. A discussion of what would be best for the client.
  3. What expert physician/surveillance company would be best for this individual claim.
  4. An acknowledgement that this self- insured employer has had 3 different claims examiners in 3 months, and this claims examiner had no familiarity with this case.

What you see in this email:

  1. Defense counsel is being asked not to speak directly to the self-insured employer.
  2. Claims adjusters, to the exclusion of self-insured employers, will make all decisions in the claim file.
  3. All vendors should be in the umbrella of companies provided by the TPA.
  4. A conflict between a counsel’s legal duties to the self-insured Employer and the TPA’s dedication to furthering their own interests. 

Third party administrators are great at managing claims.  Lawyers are great at conducting litigation.  Isn’t it time the client takes control? How do you want your claims handled?

Things Clients Want to Know:

Wednesday, February 27, 2019

Q.   In a system where the Employer must always be reactionary
how can Employers move towards proactive and take control of the claim?      

A.  Prior to any decision about the compensability of a claim an
employer must investigate whether the Employee was injured in the
course of and arising out of his or her employment.  It is becoming
more frequent that injured workers do not disclose all prior medical
treatment and yet it is this very documentation that is crucial to the
determination of whether a claim is compensable.  As the number of
Industrial Commission hearings continues to plummet, hearings are
being set sooner, forcing employers to participate in hearings where
increasingly they don’t have all the facts. The single most effective
thing an employer can do to control the timing of the processing of the
claim is to immediately send out a medical release and begin to
request medical records. This places the ball so to speak in to the
Employee’s court. 
Without a medical release AND a list of medical providers the Employer
has the right to stop processing of the claim and file a motion to suspend
until the requested documentation is received.  While a suspension does
nothing more than delay benefits and processing it allows the employer
the adequate time to mount a successful defense. While most use the
BWC release, many providers have their own release and those will also
need to be secured from the Employee.  The Hearing Administrator
presides over any failure to provide a medical release and failure to
respond to medical records request.  By the Employer doing their due
diligence, they insure that claims are not processed prior securing all the
facts.  Once again, preparation is always key to being successful at the
hearing table. If you have having difficulty securing either medical
releases or medical records please contact  us.

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.