NAWCJ

July 2021 President’s Letter



by Hon. Deneise Turner Lott

 

Shifting into Neutral

 

The backstory reads like something out of Faulkner or Larry Brown. The claimant was a young, developmentally disabled man from a remote outpost in south Mississippi. While working as a laborer for an oilfield services company, he was exposed to a degreaser and a weed killer that contained toxic chemicals.  The toxins suppressed his bone marrow, thereby reducing his ability to produce red cells, white cells, and platelets, and increased his risk for bleeding internally and externally.  At the time of his injury in 1997, there was no treatment to cure this condition or to prevent it from worsening.

Claimant’s hematologist at the University Medical Center eventually allowed him to return to work with permanent restrictions which the employer declined to accommodate.  He bounced between six jobs over the next three years before securing steady work setting tombstones for a monument company at minimum wage.

Although the employer/carrier was ordered to provide medical benefits, it refused to pay certain medical expenses which appeared unrelated to his injury.  Claimant filed a motion to compel medical services because he needed treatment and his medical providers were threatening to garnish his menial tombstone setter wages, for nonpayment of medical bills.

At the hearing on the motion, it was evident that the novelty and complexity of claimant’s medical condition would require the parties to communicate more clearly and more consistently with each other and with the medical providers. It was also evident that this would be the first of many motions to compel unless the lines of communication remained open.

The remedy appeared to be the appointment of a nurse case manager (NCM) who could liaise between the providers and the parties and furnish the medical management needed to ensure payment of benefits. Because the claimants’ bar often considered NCMs as advocates for the defense  –  a reputation that was not always undeserved  – it also appeared a NCM would be more effective if appointed by the Commission as a neutral.  There was no precedent for such an appointment, and claimant’s counsel was apoplectic at the mention of a NCM.  I nevertheless entered an order appointing a neutral NCM and requiring employer/carrier to pay for her services.

That first order appointing a neutral NCM was almost 20 years ago.  Since then, I have written more than 100 such orders.  To my knowledge, none of the orders were appealed on that basis.  I know no appeals prevailed on that basis.

Initially, I appointed neutral NCMs in the rarest of cases.  I still reserve them for exceptional cases, although the parties now ask for neutral NCMs, as do the doctors.  NCMs, too,  have embraced their roles as neutrals.  They acknowledge the cases are challenging, but report they enjoy the work because, in one NCM’s telling words, it is “straight nurse case management.” Most appointments involve: (a) high-utilization claimants who are not represented by counsel; (b) medical-only claims in which all indemnity benefits have been paid and oversight is needed to facilitate payment; and (c) severe injuries requiring home modification, nursing services to assist with ADL, or other extraordinary relief.  If needed, they are appointed whether or not employer/carrier also has a NCM on the case.

Neutral NCMs have proven to be an effective tool in managing difficult cases.  They are effective for two reasons.  First, neutrals require complete transparency which engenders trust.  Second, the neutral NCM’s goal is to facilitate a good medical outcome, not to contain the claim or costs.   A good medical outcome delivers the quickest return to work.  It pays the highest dividends.  And, it represents a win-win for both parties on multiple levels.

A few other suggestions:

*Pick the right nurse case manager.  My preference are nurses who have the good judgment, diagnostic ability, people skills, and empathy (kind, but no nonsense) of old school country doctors.

*Work with as few NCMs as possible so you get to know and trust each other.

*Establish clear boundaries and expectations for the parties and the NCM in the order.  Explain the purpose of the NCM is to facilitate the timely provision of medical services and to furnish employer/carrier with the documentation it needs to timely pay reasonable and necessary medical expenses.

*State in the order that the NCM will not be an advocate for either party or for any result other than a good medical outcome.

*Recite in the order that the NCM will copy both the parties and the Commission on all reports and on all emails between the parties and the NCM because transparency encourages trust and reduces friction.

*Furnish the NCM an access code to the electronic file (or ask your IT Department to do so).  A neutral will need to see the medicals that have been filed, as well as the orders entered and the history of the claim.

*Include NCMs in hearings on motions for medical treatment.  The hearing will be more productive because NCMs are a font of information.  Orders on motions should be copied to them as well.

*When the NCM is no longer needed, ask the NCM to documents this fact in an email to you which is copied to the parties and transported to the file.

*MS’s Act contains no explicit authority to appoint a neutral NCM, but every medical service and supply and every directive the Commission may issue in administering the Act is not stated explicitly in the statutes.  Several statutes do state, and the state Supreme Court has stated in numerous cases, that the Commission has “full and complete” authority to determine claims and to facilitate payment of compensation without delay and without unnecessary cost.

*On a policy note, the American College of Occupational and Environmental Medicine reports that most lost workdays by injured workers result from lax management, delayed treatment and specialty referrals, lack of transitional work positions, and poor communication.  These are the types of problems that NCMs can troubleshoot if they have earned the parties’ trust.

*****

In closing this month, please remember to nominate a fellow judge to the Adjudicator Hall of Fame  – someone you believe is worthy of this honor and who has been instrumental in the success of our organization.

Also, as you gather with friends and family this month to commemorate Independence Day, remember the important role you play in ensuring that our democracy endures and prevails.  So much to celebrate this 2021!

Deneise