At the 2018 SAWCA All Committee Conference, Bob Wilson from WorkersCompensation.com hosted a panel discussion looking at issues that make him go hmmmm.
The panelists were:
- Dr. Robert Snyder – State of Tennessee
- Frank McKay – State of Georgia
- Paul Tauriello – State of Colorado
- Debrah Watkins – Care Bridge International
In an era where there is significant concern about identity theft, a large percentage of state workers’ compensation forms require the use of a social security number. Changing that is something most states consider impossible because of the costs required to reprogram all of their systems. Georgia is rolling out new forms next year that will be removing social security numbers. Changing the forms was a relatively simple process, but there were challenges with regard to being able to index whether people had prior claims. In addition, the State requires a social security number as a fraud prevention measure so that number is important. Other states are taking a look at this issue and trying to find ways to identify people with something other than their social security numbers.
Disability vs Impairment
Most workers’ compensation systems have a permanent impairment element to them. Physicians are asked to provide an impairment rating, usually using one of the versions of the AMA Guidelines. There is a challenge in asking physicians to evaluate “disability” as that is really a more legal definition than the medical measure of “impairment”. Some states measure “disability” using the impairment rating alone while other states use the impairment rating as a factor in evaluating “disability” for the purpose of a permanent-partial award.
The issue of impairment vs disability is also a mindset issue as some injured workers feel their are “disabled” because they are “impaired”. A person can have impairment, but still be able to perform the essential functions of their job. We need to make sure the workers’ compensation system is emphasizing ability vs disability and focusing on what an injured worker can do, vs what they cannot do. We also need more focus on the impact that mental health has on a person’s sense of disability and take steps to address this.
Medicare Set Asides
Medicare has invested significant funds hiring a contractor to pursue lien recovery and review Medicare Set Aside agreements. Yet when it is all done they allow the injured worker to manage the set aside themselves. This is not realistic. Most injured workers do not have the knowledge necessary to do the reporting of MSA spending that CMS requires. Because of this, using professional administration something the industry is embracing with more frequency because it is seen as a benefit to both the injured worker and the payer.
Submitting a set-aside for CMS approval has always been a voluntary process, and more and more payers are moving away from getting this approval. Payers found repeatedly that the figures CMS recommended were exorbitant and did not even follow CMS rules on medical treatment. Payers are still doing the evaluation and setting aside the funds, but forgoing the actual approval process. It should be noted that CMS has never initiated litigation against a payer or injured worker alleging that the set-aside was insufficient. Their litigation has focused on the enforcing their liens.
NOTE: The state of Georgia recently received a request from the federal government for information pertaining to indemnity claims so that they could cross-reference this to SSDI. The panel is concerned we may see the federal government taking action to prevent permanent total disability claims from being shifted from state workers’ compensation systems onto SSDI.
The recent election illustrates the challenges of regulatory turnover. New governors can lead to new administrators and administrative law judges. Organizations like SAWCA play an important role in providing networking opportunities for new regulators to assist them in gaining an understanding of their new role.