UNEMPLOYMENT WORKERS’ COMPENSATIONEXCESS PROFESSIONAL LIABILITY

2009 2010

State $3,662,916.40 $13,543,404.91

Federal $480,575.18 $1,655,614.91

Local & CN $1,798,879.06 $4,337,430.92

A quasi-judicial evidentiary hearing at which sworn

witnesses and legal representatives offer

testimony and evidence

EMPLOYER has the burden of proof

Must prove by greater weight of the evidence that claimant was discharged for SUBSTANTIAL FAULT or MISCONDUCT in connection with the work.

By statute, includes: Positive drug/alcohol test Certain types of drug convictions Consuming drugs or alcohol at work Significant impairment at work by

illegal drugs or alcohol Loss of license, bond, permit, surety,

etc.

NCGS 95-230 Controlled Substances Examination Act

Drug and alcohol testing and test results must be authenticated with scientific or medical

knowledge.Need witness from testing lab (Medical Review

Officer) or a “litigation packet.”

Without testimony -- case is hard to prove

Time-certain disqualification by default 9 weeks

Can be as many as 13 weeks if aggravating factors or as few as 4 if mitigating factors

This is a “lesser” penalty, and is applied in cases where the conduct does not rise to the level of misconduct

Six factors to considered when a claimant is discharged for attendance policy violations. (Lindsey)

1. When the claimant was notified of the attendance policy;2.The degree of departure from expected conduct that warranted either a demerit or other disciplinary action;3.The degree the policy accommodates the need to deal with the exigencies of everyday life;4.The claimant's ability to make amends for rule violations;5.The amount of counseling the claimant received concerning violations; and

6.The amount of warning the claimant had that rule violations may result in discharge

APPLEWHITEJanuary, 2008

North Carolina Court of Appeals ruled if final incident of absenteeism or

tardiness leading to discharge is for reasons beyond the control of claimant,

then claimant is not disqualified

The Right Witnesses

Witnesses with first-hand knowledge

The person with the MOST knowledge about what happened is not necessarily

the best witness if their testimony would be hearsay.

Not only summarize your case, but your only opportunity to ARGUE for why your

side should prevail.

Rarely used effectively by non-lawyers

State why you believe you should win

A hearing is legal, and the topic being discussed is business, so only talk

about business.

Do your best to keep frustration, surprise and anger out of your voice and

demeanor.

Everything is reviewable on appeal, IF you object during the hearing.

If the Appeals Referee overrules your objection, let it go. Your objection on the record can be grounds for a new

hearing on appeal.

Notify employees their jobs are in jeopardy

Document counseling and warnings

Make sure your policies and procedures are clear and understandable

Follow your own policy

Question is NOT whether you had the right to fire an employee.

Question is whether a former employee is entitled to benefits.

Unemployment Insurance is a fault-based system

Employer must show fault in discharge

Was it misconduct or substantial fault in connection with the work?

Lack of skill, ability or training is not disqualifying reason for separation.

Prove ability with testimony from past

If you know someone isn’t doing their best, say it and try to prove it

96-13(b)(1) Settled law that school employees are

not entitled to benefits in between school terms if they have a reasonable assurance of returning to work in the same or similar capacity in the upcoming term

96-14(2b)discharged from employment because a license,

certificate, permit, bond, or surety that is necessary for the performance of the individual's employment and that the individual is responsible to supply has been revoked, suspended, or otherwise lost to the individual, or the individual's ability to successfully apply or the individual's application therefor has been lost or denied for a cause that was within the individual's power to control, guard against, or prevent. No showing of misconduct connected with the work or substantial fault connected with the work not rising to the level of misconduct shall be required in order for an individual to be disqualified for benefits under this subdivision.

96-8(10)f

No substitute teacher or other substitute school personnel shall be considered unemployed for days or weeks when not called to work unless the individual is or was employed as a full‑time substitute during the period of time for which the individual is requesting benefits. For the purposes of this subsection, full‑time substitute is defined as a substitute employee who works more than 30 hours a week on a continual basis for a period of six months or more.

Early November

Information from Traci Waters

The NC General Statutes are online at the General Assembly’s webpage, www.ncleg.net

NCGS Chapter 96 – ESC Laws 96-8 Definitions 96-13 Eligibility 96-14 Disqualification (Separations)

ESC Regulations: www.ncesc.com

Workers’ Compensation

FY 2011 Comparisons FY 2011 Comparisons Total Payments-State & SplitTotal Payments-State & Split

FY11

Indemnity

$ 22,276,847

FY11

Medical

$27,706,496

Total:Total: $ 49,983,343$ 49,983,343

FY10

Indemnity

$18,778,471

FY10

Medical

$23,806,454

Total:Total: $ 42,584,925$ 42,584,925

Main “Driver” Expenses Main “Driver” Expenses FY11FY11

$ 49.9M $ 49.9MTemporary Total

Disability$ 11,999,362 24.0%

Permanent Partial Disability

$ 4,929,136 9.9%

Physician/

Outpatient

$10,317,604 21.6%

Hospital $ 9,524,406 20.0%

Rx $ 3,005,459 6.0%

Workers’ Compensation Workers’ Compensation Reform LegislationReform Legislation

House Bill 709House Bill 709Protect and Put NC Back to Protect and Put NC Back to WorkWorkSigned by Governor June 24, Signed by Governor June 24, 20112011

Suitable Employment – New Suitable Employment – New ClaimsClaims

Suitable Employment will be defined both pre and post MMI.

“Make work” will be allowed as approved by health care provider. Includes part-time positions.

After MMI, job is suitable if employee is capable of performing work (physical and mental limitations, vocational skills, education, experience, located within 50 mile radius of home).

Wages, benefits hours, age and vocational interest will no longer be relevant to determine whether a job is suitable.

NC GS 97-2(22)

Suitable Employment – Risk Suitable Employment – Risk ManagementManagement

Provide Job Description for PhysicianIncludes Full and Part-Time PositionsRate of Pay – No Longer a

DeterminantJOB OFFER IS KEYReturn Injured Employees Back to

Work before and after they reach maximum medical improvement (MMI)

Misrepresentation of Misrepresentation of Physical Condition – New Physical Condition – New ClaimsClaims

No compensation will be allowed to an employee who provides inaccurate information during a post-offer physical, or while completing a post-offer medical questionnaire.

Employer may prove that employee’s misrepresentation should bar him/her from receiving benefits.

- Employee knowingly/willfully makes false representation

- Employer relied upon false representation when hiring

- Causal connection between false representation by employee and injury or occupational disease

NC GS 97-12.1

Misrepresentation of Misrepresentation of Physical Condition – Risk Physical Condition – Risk ManagementManagement

Create and maintain detailed records of any and all representations made by employees about their medical conditions ◦- At the time of hire◦- When completing a post-offer medical

questionnaire◦ - Prepare to testify that you relied on

those representations and it was a substantial factor in hiring employee

Increase in Benefits – New Increase in Benefits – New ClaimsClaims

TTD benefits will be capped at 500 weeks from the date of first disability. NCGS 97-29(b)

TPD benefits will be increased to 500 weeks total (not from date of injury). NCGS 97-30

Death Benefits increased to 500 weeks and funeral benefits increased to $10,000. NCGS 97-38 and 97-40

Change of Treatment or Change of Treatment or Health Care Provider – All Health Care Provider – All ClaimsClaims

Employee has a right to seek a second opinion evaluation, and parties have 14 days to agree on the second opinion before employee will be allowed to file a motion on the issue.

When employee files a request for a Change of Treating Physician, the Commission will have to find a preponderance of evidence that change is reasonably necessary to effect a cure, provide relief or lessen the period of disability.

If an employee wants to change their treating physician, a request in writing to employer is encouraged before seeking treatment. If employee fails to seek permission in writing and treats without authorized, the Commission “may” disregard the doctor’s opinion.

NCGS 97-25

Broader Communication Rights Broader Communication Rights Process for Requesting Information - Process for Requesting Information - All ClaimsAll Claims

Employer must request medical records from physician -Compensable claims, authorization from employee is not necessary;Denied claims, employer must give contemporaneous notice to employee.

Employer may write to the doctor with contemporaneous notice to employee and ask questions relevant to inquiry/injury.

Employer can schedule a telephone conference with the doctor if information requested is not received. Employee is allowed to participate.

Employer will be allowed to provide information not contained in the medical records to the doctor for comment (surveillance, prior medical records doctor many not be aware of, etc.). Employer must provide copy to employee and employee will have right to object.

. NCGS 97-25.6

Second Opinions – Second Opinions – RatingsRatingsAll ClaimsAll Claims

Employee may seek a second opinion on a rating--

With doctor of their choice (paid by employee ) Commission “must” disregard doctor’s opinions on all issues other than rating

NCGS 97-27

Benefits Paid to Employee Benefits Paid to Employee While on Workers’ While on Workers’ CompensationCompensation

100% Medical66 2/3 Lost Time (Indemnity)Vacation & Sick Leave Credits

( 240 hrs. maximum)Paid Hospitalization InsuranceLongevity Pay (over 10 years)Retirement Use of Leave to Supplement

Weekly Compensation

Workers’ Compensation Workers’ Compensation Risk ManagementRisk Management

Know Your ClaimsReview Claims about every 3 monthsReport claims timelyCommunicate with Injured WorkerUtilize PPO Medical NetworkCommunicate with AdjustersAttend MediationsSupport Work Comp Administrators

(WCAs)Return Employees Back to WorkExercise Rights under the new WC

Reform

Excess Professional Excess Professional LiabilityLiabilityCovers Employees and

VolunteersAutomatic Enrollment No Cost to Employees or LEAsNo Association Membership is

NeededProfessional ActivitiesReimbursement for Attorney Feeswww.professionalliabilitync.com

THANK YOUTHANK YOU

Eileen Townsend, CPCU, AUSection Chief Insurance eileen.townsend@dpi.nc.gov919-807-3522