1. Gary Jennings, CPCU, ARM, ALCM, AIC, ARe, SCLA
Principal
Strategic Claims Direction LLC
(678) 520-3739 1

2. WC Defensibility
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 #1 topic requested by Georgia PRIMA members
 State
 Cities
 Counties
 Risk pools
 School districts
 Water & sewage authorities
 Shared concern regardless of entity

3. WC Defensibility
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 Displeased with outcomes
 Mediation
 Hearings
 Trials
 Why are we not getting the desired results?
 What can we do to improve the outcomes?

4. WC Defensibility
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 Different program types
 Risk Managers, HR Managers, Safety Managers, Finance
Managers, and others
 Self-administered or TPA-administered
 Contractors and vendors used in different ways
 In-house counsel or outside counsel
The issues are the same regardless of your program type,
structure, administration model, or size.

5. WC Defensibility
 Why aren’t we getting the desired results?
 Common refrains on why we aren’t winning more
cases:
 The deck is stacked against us – employees always win
 The unions work against us
 We have too many employees with entitlement
mentalities
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6. WC Defensibility
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 Why are we not getting the desired results?
 Our supervisors don’t handle it properly
 The claims administrator is doing a poor job of
managing the claims
 Defense counsel dropped the ball
We will take a broad view of WC defensibility and what we
can do to improve it.

7. WC Defensibility
Defensibility– The Free Dictionary
Capable of being
defended
protected
justified
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8. WC Defensibility
 Defend – Successfully repel attackers
 Protect – Maintain safe place for the people
and resources or assets that we value
 Justify – Our actions are respected,
supportable, and affirmed
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9. WC Defensibility
J
U
S
T
I
F
Y
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LIFE OF A CLAIM
D
E
F
E
N
D
P
R
O
T
E
C
T

10. WC Defensibility
 Inherent presumption in this definition is that we and
our employees are all:
 Concerned about our employees
 Acting in good faith
 Following Georgia’s WC requirements
 Seeking the most appropriate care for the injured
employee
 Trying to eliminate or significantly reduce time off from
work
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11. 11

12. WC Fraud
 “3 Most Common Types of Workers’ Comp Fraud” -
Claims magazine November 2014
1. Abusers
 Outright fraud – injury did not occur at work
2. Opportunists
 Injury occurred at work but employee has performance issues,
is uncooperative, and seems to extend time off
3. Forgotten and/or uninformed employees
 Not fraudulent but frustrating and eventually may be viewed
unfavorably
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13. WC Defensibility
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We spend a lot of our
time on the fewer
claims from ABUSERS
& OPPORTUNISTS
The rest are the claims of
UNINFORMED or
FORGOTTEN EMPLOYEES
that can be reduced
through assertive and
disciplined claims handling
ALL OF THESE CLAIMS CAN GENERATE SIGNIFICANT CLAIMS COSTS

14. Forgotten and/or
Uninformed Employees
 Regular people who have lost their way and we suspect
them of fraud / malingering
 Unaware of or unclear about requirements
 Hurt and in pain
 May have other physical problems
 Seeing medical providers they don’t know
 Don’t understand medical and WC terminology and
procedures
 Often get little information from informed sources
 Are financially stressed, worried about their jobs/future
 May get misleading information and advice from family &
friends
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15. Personal Experience
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16. What do we do?
How do we handle these claims
from different types of employees?
Abusers
Opportunists
Forgotten employees
What can we do about these cases?
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17. “How do I make time for this?”
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“I’m already doing a balancing act!”

18. Maybe the better question is:
Will you have more time in
the future to spend on these
issues, and will you get better
results if you don’t change
anything?
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19. How do we get there from here?
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20. 20

21. Claims are Hard to Predict
 Employers don’t know at the outset which claims will
become the most costly or most difficult to manage
 Employers must be consistent
 Prepare for assertive claims handling
 Adhere strictly to the plans and procedures
 Execute all steps with discipline
KNOW WHAT TO DO AT THE RIGHT TIME FOR THE
RIGHT RESULTS
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22. To be efficient & effective -
Do it right the first time
 Create a clear path for claims handling
 Make sure the claims are being managed well
 Act with a sense of urgency
 Ensure that employees get the information they need
 Investigate promptly and fully
 Evaluate based on objective facts, not favoritism or
politics
 Choose your battles
 Manage expectations
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23. WC Defensibility
Yogi Berra - “If you don’t know where you are going, you
might wind up someplace else.”
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24. Contributing Factors
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 Contributing factors to unsuccessful WC defensibility
 Lack of “Leading Industry Practices” – unstated,
inadequate, and/or inefficient claims management
expectations, procedures, and activities
 Unclear or undefined roles and responsibilities - roles
of the public entity representatives, the adjusters, the
nurse case managers, the defense attorneys, etc.
 Poor execution or follow-through

25. WC Defensibility
 Successful defensibility relies upon proper planning
and efficient execution before AND after an incident
occurs. Don’t have a procedural “goose egg” before the
incidents occur.
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LIFE OF A CLAIMNO
PLANS

26. WC Defensibility
 Case may start to unravel before the incident occurs
 Lack of notification and knowledge regarding claims
reporting
 Inadequate reporting procedures, uninformed or
uncooperative supervisors
 Inefficient processes to manage claims once incidents
occur
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27. WC Defensibility
 DISCIPLINE
 The difference between a successful defense and an
unsuccessful defense is often due to the difference in the
level of detail
 Maintain a strong sense of urgency throughout the life
of a claim
 Take decisive steps
 Don’t let the claim languish
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28. Theme: Keep Calm, Sail On
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Which do you want?
OR

29. Theme: Keep Calm, Sail On
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 To have “happy sailing”
 Have a steady captain
 Experienced
 Committed
 Understand the seas ahead
 Study & analyze
 Learn from past mistakes
 Prepare for the voyage
 Identify the destination
 Create detailed maps and directions

30. Theme: Keep Calm, Sail On
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 To have “happy sailing”
 Get the right crew / define your duties
 TPA or self-administer?
 Qualified personnel
 Continuing training
 Clear expectations
 Chart your course and check it regularly
 Compare where you are against known guides

31. WC Defensibility
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 To have “happy sailing”
 Execute confidently

32. Discipline - Pre-Incident
 Pre-incident planning and preparation
 Hire “right” employees for the jobs
 Discharge the “wrong” people
 Promote “right” workers to supervisors and managers
 Set up prompt reporting processes & methods
 Select medical panel & post it
 Inform employees of the medical panel
 Develop special claims admin. service instructions
 Inform employees of reporting responsibilities
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33. Discipline – Pre-Incident
 Pre-incident planning and preparation
 Make the right decision – self-administer or use a TPA
 Create a Stay at Work / Return to Work (SAW/RTW) program
 Select “right” vendors
 In-house counsel vs. outside counsel
 Managed Care Organizations
 Triage Nurses
 Medical Bill Review / Re-pricing
 Telephonic or Field Case Management
 Utilization Review
 Durable Medical Equipment
 Pharmacy Benefit Management
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34. Discipline – Pre-Incident
 Pre-incident planning and preparation
 Select “right” claims system or risk management
information system (RMIS)
 Efficient claims operation
 Capture key information
 Create meaningful reports
 Allocate claims costs back to departments
 Set up performance measurements for claims
administrator and for departments / divisions
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35. Discipline – Incident Response
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 Reporting
 To the supervisor or designated person
 Completing the Supervisor’s Report
 Completing the First Report
 Getting the report to the TPA
 Setting up and assigning the claim

36. Discipline – Incident Response
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 Reporting, set-up, and contact “lag times”
Incident
date
Date EE
reported
to Supv.
Date
Supv.
compl.
invest.
Date
FROI
compl.
(WC-1)
Date sent
to Claims
Admin.
Date
Claims
Admin.
set up /
assigned
Fri.,
3/20
Mon.,
3/23
Tues.,
3/24
Wed.,
3/25
Thu.,
3/26
Fri.,
3/27
Cumulative Days Expired
0 3 4 5 6 7
Possible first contact with employee

37. Discipline – Incident Response
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 Reporting and Initial Contact – if not done promptly,
it may be several days before someone starts managing
the claim.
 What are the dangers?
 Employee sees unauthorized medical providers
 Employee is uncertain and stressed – getting no
direction
 Friends & family give misleading advice and information
 Witnesses and co-workers may be unavailable / coached
 Facts of the claim become murky
 Employee may become represented

38. Discipline – Incident Response
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 Investigation
 Often one of the biggest weaknesses
 Slow to initiate – may be days or weeks after claim occurred
and was reported
 Cursory - Adjuster asks “Do you have any reason to doubt this
claim?”
 Sometimes performed by unqualified persons – public entity
representatives
 Lacks timely follow-up - What’s next?
 Sometimes based solely on medical provider’s opinion
 Requests medical information late

39. Discipline – Incident Response
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 Investigation - 2 layers
1. Did it happen on the job?
 Supervisor
 Often more of a cursory effort
 Loss Control
 What can be done to prevent this in the future?
 Claims Administrator
 Compensability – Did it arise out of and in the course of
employment (AOE/COE)?
 Employer’s simple lack of doubt that the injury occurred is not
the only compensability determinant
Layer 1
Layer 2

40. Discipline – Incident Response
 Investigation – some possible questions
 Where did it happen? Did it happen at another
company’s site?
 Was there evidence at the site?
 Was the employee where s/he should have been?
 What caused the employee to slip / fall ……?
 Does the employee have health conditions that might
have caused this?
 Did another employee or contractor play a part?
 Did the employee tell others about his/her complaint?
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41. Discipline – Incident Response
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 Investigation – 2 layers
2. What do we need to know to manage this claim well?
 What is the injury, the diagnosis, the prognosis, the
treatment plan, expected time off from work (if any)?
 What is the employee’s usual job and can the employee
perform that job – continue to work?
 Is this a motivated employee who will do what s/he can to
get appropriate treatment and get back to work?
Layer 1
Layer 2

42. Discipline – Incident Response
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 Investigation – 2 layers
2. What do we need to know to manage this claim well?
 Does the employee have any other conditions, injuries,
illnesses, or other circumstances that might delay recovery?
 Did the incident occur at another site or in a way that makes
a third party potentially responsible for payment?
Layer 1
Layer 2

43. Compensability Decision
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 Questions to ask yourself
 Have you been able to complete the investigation before
the first indemnity payment is due?
 Have you investigated the claim fully and promptly?
 Are the facts and details clear?
 Is the compensability decision clear, or is there room for
interpretation?
 When required, can you replicate the information and
facts on which you based the decision?

44. Compensability Decision
 Are we accepting and denying the right claims?
 If we suspect a claim is not legitimate, how do we
manage the claim until we have the proof?
 What do we do if we can’t prove it?
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45. If Some Aspect of Claim
is Being Contested
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 Should the claim be at this stage in the first place?
 Has the claims administrator maintained ongoing
contact?
 Has the employee been properly informed throughout
the life of the claim?
 If the employee is represented, has the claims
administrator had an ongoing discussion with the
employee’s attorney?
 What are the issues?
 Should they have been resolved?
 If so, why haven’t they been resolved?

46. Defense Counsel Considerations
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 In-house or outside counsel?
 Advantages and disadvantages of each?
 Managing litigation
 Litigation management guidelines
 Regular meetings and discussions
 Evaluate “success”
 Compare return on investment (ROI)
 “Success” versus costs

47. Preparing Defense
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 Proper Description of Respective Duties
 Claims Administrator Responsibilities
 Investigation and Compensability issues should be resolved
 Employee’s condition should be well known
 Action plan / resolution goals should be well defined
 Keep claim moving
 Keep defense counsel accountable

48. Preparing Defense
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 Proper Description of Respective Duties
 Defense Counsel Responsibilities
 Legal advice
 Under Claims Administrator’s direction
 Perform directed discovery
 Inform Claims Administrator of all important developments
 Discuss action plans / resolution strategies with Claims
Administrator
 “Try” case

49. Make an Early Decision
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 Resolve or Contest?
 If Contest
 Complete discovery
 Obtain needed information
 Get it to the hearing quickly

50. Summary - WC Defensibility
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 Better outcomes based on
 Consistency
 Defining your pre-incident and post-incident
procedures
 Clarifying roles and responsibilities
 Maintaining a sense of urgency
 Executing your plans

51. Questions / Comments?
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CONTACT INFORMATION
 Gary Jennings, CPCU, ARM, ALCM, AIC, ARe, SCLA
(678) 520-3739
Gary.Jennings@StrategicClaimsDirection.com