Published Articles

Can a Finding of a Breach of Warranty Be the Basis for Recovery of Attorney’s Fees and Punitive Damages?
By: Marie Cheung-Truslow, Esq.

Massachusetts does not recognize common law punitive damages. It follows the American Rule, which provides that each party is responsible to pay its own attorney’s fees unless specific statute or contract allows assessment of those fees against the other party. Under certain circumstances, attorney’s fees and punitive damages have been granted under Massachusetts’ consumer protection statute, Mass. Gen. L. ch. 93A. View Article

Reprinted by permission from National Association of Subrogation Professionals, Subrogator, Spring/Summer 2008 issue.

 

Found Money: The Benefits of an Aggressive Approach to Second Injury Fund Recovery
By: David A. Jollin, Dorothy M. Linsner, and W. Frederick Uehlein

The benefits of a comprehensive workers’ compensation second injury fund recovery program are many. For the insured employer, recovery puts “money in their pockets” if there are deductibles or retentions or helps to reduce experience modification factors; for self-insured employers and insurers, dollars are recouped, loss costs are lowered and reserves are reduced. Because of the high recovery value of many claims, even a modest increase in the number of recovered claims can have a substantial positive impact. Second injury funds are there for the purpose of reimbursing eligible insurers and employers. Employers that don’t ask for this money won’t get it, but they will continue to finance the fund regardless, paying for others to get paid. Reimbursement is not guaranteed until it is negotiated, awarded and collected in a timely manner. [View Article]

Reprinted by permission from the National Association of Subrogation Professionals, Subrogator Winter 2006 issue

 

Leaving Money on the Table: Obstacles to Second Injury Fund Recovery
By: David A. Jollin and W. Frederick Uehlein

A comprehensive workers’ compensation second injury fund recovery program puts money in the employer’s pockets, reduces experience modification factors and lowers reserves. Because of the high recovery value of many claims, even a modest increase in the number of recovered claims can have a substantial positive financial impact. Second injury funds are there for the purpose of reimbursing eligible insurers and employers. Employers that don’t submit second injury fund claims wont receive these benefits, but they will continue to finance the fund regardless. Reimbursement is not guaranteed until it is negotiated, awarded and collected. [View Article]

Reprinted by permission from Public Risk January 2006

California Workers’ Compensation Permanency Reform: Providing the Tools for Cost Containment
By: Mark J. Nevils

The 2004 amendment to the California Workers’ Compensation Law (SB 899) has several ambiguous substantive and procedural changes, some of which are already under judicial review, with more to come. Even with these outstanding questions, the new law contains statutes with clear and valuable cost-containment tools that became effective on April 19, 2004, the date of enactment. Insurers and employers must learn how to use these new cost-containment tools as soon as possible to create the savings that the law intended. [View Article]

Reprinted by permission from Claims Quarterly, March 2005.

Closing the Recovery Gap
By: W. Frederick Uehlein and David A. Jollin

Does any company know for sure if it is maximizing opportunities to reduce total workers’ compensation costs through third-party recoveries? How many claims managers, risk managers, or CFOs are confident that they are maximizing recovery dollars for their company? Frequently, the recovery mantra is, “How am I going to fix this? Will it take months?” As we travel around the country talking with insurance professionals, we have rarely heard positive responses to our questions about maximizing recovery. We more often hear one of two refrains, “We’ve got it covered” or, “We will try to get to this issue later.” Judging by what we have heard in interviews with employers and insurers alike, the answer to the question of how long it will take to fix could be “Years.” [View Article]

Reprinted by permission from The Journal of Workers’ Compensation Winter 2005.

Second Injury Funds: Still a Valuable Cost-Containment Tool
By: Mark J. Nevils

The debate continues on whether workers’ compensation second injury funds (SIF) fulfill their intended purposes. The fact remains, however, that these funds still exist in many jurisdictions, and provide employers or insurers with a very valuable cost-containment tool when properly handled. As the workers’ compensation claims process becomes increasingly segmented, more companies are dedicating personnel to in-house programs or outsourced vendors to achieve cost containment. An estimated $800 million is paid out annually from these funds across the country, primarily by either reimbursement to the insurer or directly to the employee. [View Article]

Reprinted by permission from Claims Quarterly, March 2004.

Second Injury Funds: Maximizing Your Recovery Results
By: W. Frederick Uehlein and Dorothy M. Linsner

Workers’ compensation claims management has entered a new era. Rapid technological advances in computer software enable claims managers to track information, people, and statistics. This development provides an unparalleled opportunity for cost savings at a time when costs are rapidly escalating. Sophisticated computer claims-management systems allow claims managers to unbundle, measure, and reengineer various services, targeting the most efficient solution at the lowest cost. The same openness to change that has already been witnessed in other areas of the workers’ compensation industry needs to be carried over to the second injury fund recovery process. [View Article]

Reprinted by permission from The Journal of Workers’ Compensation, Fall 2003.

In Search of Savings
By: W. Frederick Uehlein

Litigation costs continue to escalate in the property and casualty industry. Many studies over the past decade have chronicled these continuously increasing costs. Much is to blame for the increase, including mismanagement and fraud. By far the greatest reasons for the increase in litigation costs are lack of skill, time, and motivation by the insurance professionals to oversee and manage their provider law firms and litigation process.  There is usually no pay for performance system in place to give them proper incentive to resolve claims quickly, efficiently and cost effectively. [View Article]

Reprinted by permission from Best’s Review June 2003.

Subrogation: Thar’s Gold in Them Thar Claim Files
By: R. Gary Lee

Subrogation is often a missed opportunity in workers’ compensation claims files. The average amount of lost recovery dollars approximates one point on many insurers’ combined ratios. For the insured, the result can be unnecessary premium increases along with a poor experience modifier. Specialized subrogation efforts can yield an attractive return on investment (ROI). The article details the scope of the problem and provides specific steps for the insured, self-insured, or insurer to take to maximize recovery from workers’ compensation claims. [View Article]

Reprinted by permission from The Journal of Workers’ Compensation Spring 2003.

The Growing Storm: The Role of Second Injury Funds in the Wake of the ADA
By: Dorothy M. Linsner

Do second injury funds encourage the hiring of disabled workers? A worker enters the personnel office of a manufacturing operation to apply for a position. Although he arrives with skills that qualify him for the job, he has had back surgery and is left with an ache that occasionally flares up. From the employer’s perspective, this employee represents a potentially expensive commitment. Historically, and employer might have rejected such an impaired worker. Accommodations would have been costly and the risk of injury greater. [View Article]

Reprinted by permission from MSL Law Review, Fall 1997.