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BRC Boot Camp – Are you Employing the Best Practices in Your Benefit Review Conferences? Angela Sparkman, Martha Lynn-Lee, Howard, Nicole Billings, Facilitators.

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Presentation on theme: "BRC Boot Camp – Are you Employing the Best Practices in Your Benefit Review Conferences? Angela Sparkman, Martha Lynn-Lee, Howard, Nicole Billings, Facilitators."— Presentation transcript:

1 BRC Boot Camp – Are you Employing the Best Practices in Your Benefit Review Conferences? Angela Sparkman, Martha Lynn-Lee, Howard, Nicole Billings, Facilitators Keitra Robinson, Moderator

2 WELCOME TO BRC BOOT CAMP! Important Disclaimer : The creators of this Boot Camp can not be held responsible for your extraordinary success at BRCs after completing this boot camp. All credit goes to you, the participant, who applies the knowledge gained and continues to win. Text and your Questions to 22333

3 THE BRC BOOTCAMP PROGRAM! THIS BOOT CAMP IS MADE UP OF 5 STATIONS. EACH STATION FOCUSES ON ONE AREA OF THE BRC BODY. YOU WILL BE WORKING OUT AT EACH STATION. Text and your Questions to 22333

4 STATION 1 PRE-BRC & Convening Text and your Questions to 22333

5 BRC Preparedness This is the stretching that you do before beginning the BRC workout. This will help you gain strength early on and maintain endurance for the rest of the workout BRC BOOT CAMP SUCCESS TIP: This begins when the injured worker reaches MMI. Begin negotiations early, and then involve an attorney in the setting of the BRC. This will engage the injured worker and their attorney in negotiations early and you can begin to determine what if any obstacles to settlement are beginning to arise. Text and your Questions to 22333

6 Coordinate With Counsel Text and your Questions to 22333

7 Helpful Warm Up Exercises Text and your Questions to 22333

8 Convening As we continue in station 1 with “convening”, your heart rate will begin to increase. Your elbows may start to sweat, and you will be challenged to see how agile you are. Get your head in the game! Text and your Questions to 22333

9 What is convening? To come together or assemble, usually for public purpose. (Dictionary.reference.com) Text and your Questions to 22333

10 Convening helps set the stage for optimal results! If your mediator asks you to gather more information during the convening station, please do so, and make sure it is available at the BRC if it hasn’t been sent in by then. Text and your Questions to 22333

11 FITNESS CHECK! The new Division rules governing Alternative Dispute Resolution proceedings like the BRC provide that if a party does not cooperate with the mediator and provide information necessary for the resolution of the dispute, the mediator may refer the party for penalty. (A)True (B)False Text and your Questions to 22333

12 Answer b.) False Rule provides that “The parties shall cooperate with the mediator and provide any information necessary for the resolution of the dispute. If the mediator determines that a party is not cooperating or is not negotiating in good faith, then the mediator shall refer the party for a penalty…” Text and your Questions to 22333

13 THE “OPENING” -STATION 2  At this station, you will be doing a blend of strength work and aerobic training. Remember people: BREATHE! Text and your Questions to 22333

14 THE OPENING STAGE OF BRC- BRC BOOT CAMP SUCCESS TIP: Involve your client. Have the Employer attend the BRC and help the defense attorney with the fact pattern of the claim. Be STRATEGIC about who you ask to attend. Text and your Questions to 22333

15 BRC BOOTCAMP SUCCESS TIP! OPENING STAGE OF BRC Participation at this station is not mandatory, but can significantly benefit the healthy outcome of the BRC. Text and your Questions to 22333

16 OPENING TO COMMUNICATING Keep your eyes on the prize Text and your Questions to 22333

17 BRC BOOT CAMP TOP SUCCESS TIP: BE AVAILABLE, STAY ACCESSIBLE! You almost always have something come up in opening of which you were unaware. If you are listening by phone and you hear that the surprise is unpaid medical bills, you can start researching them. Or if the issue is underpayment of temporary disability benefits, you can be looking into that. It’s now the time for you to address issues you heard during the opening that you disagree with, and back up your position with supporting documents. Text and your Questions to 22333

18 FITNESS CHECK!  For dates of injury on or after July 1, 2014, a ___________ will be filed with the clerk of court which notes the 1) issues the parties have agreed upon 2) remaining issues that are still in dispute including all defenses to the claim that were raised during the mediation. A.“Official Impasse report” B.“Benefit Review Report” C.“Dispute Certification Notice” D.“Hearing Request Notification” Text and your Questions to 22333

19 Answer C. “Dispute Certification Notice” Rule (4) Text and your Questions to 22333

20 BRC BOOT CAMP STATION #3  BRC STAGE #3- COMMUNICATING Text and your Questions to 22333

21 BRC BOOT CAMP SUCCESS TIP: BE FLEXIBLE AND BE WILLING TO LISTEN TO YOUR ATTORNEY  COMMUNICATING STAGE and into NEGOTIATING STAGE OF BRC Text and your Questions to 22333

22 STATION 4 Joint Session/ Individual Interviews & Negotiation By: Angela Sparkman Text and your Questions to 22333

23 THIS STATION FOCUSES ON EXERCISING THE JOINT SESSION/INDIVIDUAL INTERVIEWS & NEGOTIATION This exercise builds on the skills learned at the Communication Station using your vocal muscles but listening is key for everyone involved so you must perform ear exercises also. Text and your Questions to 22333

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27 WHAT IS A JOINT SESSION?  At the BRC, the parties, their lawyers (if represented) and the mediator (a Workers’ Compensation Mediating Specialist employed by this Division) are together in the same room for a joint session. The mediator makes a brief introductory statement explaining the process (opening statement). Next, each side has an opportunity to make a brief statement. This simply lays out the details of the case for the mediator. Text and your Questions to 22333

28 EXERCISING THE JOINT SESSION MUSCLE!  BRC BOOT CAMP SUCCESS TIP  Use The Joint Session to Your Advantage  The mediator’s task is to facilitate an open discussion of the issues, explore alternatives and reduce any hostility between the parties. The Joint Session brings everyone together saving time and setting the right tone for the mediation. It ensures that the parties are educated about the process and prepared to make informed decisions.  A good opening statement by the mediator with the right body language works wonders. It allows the mediator to set a “matter of fact” tone so there is more focus on solving problems than laying blame. It provides an opportunity for parties to examine positions, ask questions, establish common ground and agree on the minor issues up front.  Exercising the Joint Session. Putting the parties together in the same room is useful at the beginning of a mediation because it allows the mediator to set the tone, it reminds everyone of the process and our respective roles, it is an opportunity for the parties to evaluate the employer and/or employee’s credibility and/or effectiveness at court, it often sets the employee at ease putting a face to the other side and limits repetition of most information. The mediator may call the parties together for multiple joint sessions, if needed. Text and your Questions to 22333

29 WHAT SHOULD YOU DO IN A JOINT SESSION?  Don’t Be Scared.  Speak Up (Calmly). Be Heard (Tone Control). Be Seen (Proper Demeanor). Free Discovery (Ask Questions).  The claimant and employer have the opportunity to exercise his or her ghosts.  The employer, insured and/or defense counsel have the opportunity to clarify any miscommunication, ask questions and simplify some disputes in the joint session, such as return to work, current employment status, etc.  LISTEN. Listen with the intent to resolve the issue(s) not be right.  You Be the Judge.

30 JOINT SESSION- HOW IT WORKS  Salutations and general pleasantries (informal process, attendance document)  Housekeeping matters (location of restrooms, smoking areas, beverages, etc.)  General explanation of process/mediation (confidentiality, voluntary process, good faith, etc.)  Explanation of role of mediator (conflict resolution, “employee of the State,” credentials, experience, neutral, unbiased, impartial, interject when appropriate)  Explanation of purpose and scope of program (no-fault system, speedy and inexpensive alternative, general legislative/judicial/executive influences and authority, damages such as no pain/suffering, relevancy of certain testimony and actions by both parties, etc.)  Opportunity for opening statements from parties  General Questions applicable to both parties Text and your Questions to 22333

31 Text and your Questions to 22333

32 WHAT IS AN INDIVIDUAL SESSION?  The mediator meets privately with one side. During this private “‘caucus”, the mediator leads the party through an analysis of the case. It’s as simple as responding to the questions and inquiries made by the mediator. Everything is confidential. The mediator will not disclose to the other side anything a party or lawyer asks to be kept confidential. The mediator may point out strengths and weakness of the party’s position.  Next, the mediator meets privately with the other side. During this time, the first side is able to further discuss the case privately in their own room. The mediator will engage in the same analysis that he/she conducted with the first side. The confidentiality rules still apply.  The mediator engages in “shuttle diplomacy”, moving back and forth between the private meeting rooms. Periodically, the mediator may call the parties together for another session. This process is continued until the case is settled or the parties decide mediation is no longer fruitful. The parties may decide to reconvene on another day to continue the mediation. Text and your Questions to 22333

33 EXERCISING INDIVIDUAL INTERVIEWS- CAUCUS  BRC BOOT CAMP SUCCESS TIP  Use Individual Interviews to Your Advantage- What Should You Do?  LISTEN UP. The individual interview gives the mediator the opportunity to do reality testing and educate the parties further through the Explanation of Benefits (“E.O.B.”) form, information gained during the warm up (pre BRC) and/or information gained throughout the BRC. (Note: Some review the E.O.B. form during the joint session. It is at the discretion of the mediator.) An unbiased opinion from a neutral mediator is an expert way to help one resolve a claim and lose that extra baggage by closing the claim.  SPEAK UP. BE HEARD. Individual Interviews allow the parties to speak frankly and confidentially. It is a confidential process where the parties can share things or bounce ideas off the neutral mediator. The mediator may point out strengths and weakness of the party’s position. Take advantage and ask for the neutral mediator’s opinion. Text and your Questions to 22333

34 INDIVIDUAL INTERVIEWS –HOW IT WORKS PART 1  Separation of Plaintiff and Defense to designated conference rooms  Discussion of the injury itself from each party’s point-of-view (body part, diagnosis, surgery, panel/authorized treating physician, etc.). Discussion of how injury occurred  General overview of the Employee’s job and responsibilities  Causation discussion (arising out of and within the course and scope of employment, medical proof needed, witness support, etc.)  Explanation of Benefits (past and future medical treatment, permanent and temporary, total and partial, reconsideration, signing of “EOB” document)  Gathering facts from each point-of-view (compensation rate, impairment ratings and referencing the AMA Guides, physicians identification and discussion of reputation, applicable caps, permanent total disability vs. permanent partial, Medical Impairment Rating (MIR), education level, age, etc.) Text and your Questions to 22333

35 INDIVIDUAL INTERVIEWS – HOW IT WORKS PART 2  Discussion of issues/defenses and application of law pursuant to each argument (misconduct, statute of limitations, positive drug/alcohol screens, covered employees/employers, illegal immigrant status, independent contractor vs. employee, idiopathic injuries, assaults, willful failure to use a safety device, notice, termination for cause, deviation from the job, recreational activities, etc.)  Discussion of actual proof and burden. Discussion of changes in the law as applicable  Discussion of prior negotiations terms and whether still applicable. Determination and application of new claim vs. reconsideration  Determination of range of compensation and future medical treatment. Outstanding temporary disability or medical bills  Discussion regarding alternative demands (mileage, overpayment/credit of temporary disability, outstanding authorized/unauthorized medical bills etc.) Text and your Questions to 22333

36 Exercising the Negotiation Muscles! Text and your Questions to 22333

37 WHAT IS NEGOTIATION?  A dialogue between two or more people or parties intended to reach an understanding, resolve points of difference, to gain advantage for an individual or to craft outcomes to satisfy various interests. Negotiations can occur in both the joint and individual session during the BRC. Text and your Questions to 22333

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40 BRC BOOT CAMP SUCCESS TIP USE YOUR NEGOTIATION MUSCLES TO YOUR ADVANTAGE- WHAT SHOULD YOU DO? Be Prepared to Compromise. Being too rigid during the negotiation exercises can lead to severe muscle strain causing a deadlock or impasse. Being right and wanting to “win” may lead to a more costly injury. One may never feel fully vindicated in the workers compensation no- fault system where current law is construed in favor of the injured worker and new law notes that the work injury must have contributed to at least 50.1% to the overall injury to be construed fairly and impartially. On the other hand there are no damages such as pain/suffering for the claimant. This can be considered a legislative compromise. Therefore, the conventional “win” may not be an option under workers compensation law. Overall it is in everyone’s best interest to negotiate a claim so one remains in control while saving time and money. It is a speedy and inexpensive alternative.

41 BRC BOOT CAMP SUCCESS TIP  Remain Open to New Information. Reflect on the information provided and adjust ones position accordingly but don’t get side tracked by information or complaints that are not relevant.  Failing to seek information about the other side’s needs and wants. Even experienced negotiators often fail to really understand the other side’s interests. You should ask questions and keep communicating, even if you’re not agreeing. This information can lead to BRC success, i.e. settlement.

42 BRC BOOT CAMP SUCCESS TIP  Be Forthcoming with your mediator and share confidential information, trust that the mediator can evaluate the information and determine how best to use it to get a compromise while keeping it confidential. It may not be the smoking gun you think it is but it may be the added hammer needed to nail a compromise. Also a neutral opinion may help you reevaluate ones stance (reality testing).  Details and Information are Key. Without a foundation and a plan on how to address the various issues, a negotiation can quickly get bogged down if details are not immediately addressed.

43 BRC BOOT CAMP SUCCESS TIP  Exercise Your KNOWLEDGE.  Personal review of applicable laws, rules policies and procedures can lead to BRC success. Knowing this information can help one maximize the results of the BRC. Text and your Questions to 22333

44 Text and your Questions to 22333

45 BRC BOOT CAMP SUCCESS TIP  Be Mindful of one’s tone, demeanor, body language and facial expressions.  Don’t Get distracted by the opposing negotiator’s personality and behavior. Do not take an over- aggressive stance early in a negotiation.

46 BRC BOOT CAMP SUCCESS TIP Evaluation. Determine if one may be driven by influences other than those of a monetary nature. Don’t become so entrenched in a position that that one can not consider new information. Text and your Questions to 22333

47 Remember that the mediator is there to mediate a dispute not referee a fight. Negotiations are not psychological warfare while negotiation has a strong psychological component, viewing it as a war can be damaging. Advice: communicate clearly, develop listening skills, and keep your own words and actions telling a clear and consistent message. Stay Focused. BRC BOOT CAMP SUCCESS TIP Text and your Questions to 22333

48 THE BRC NEGOTIATION-HOW IT WORKS  Demands and Offers exchanged through the mediator’s movement from room to room  Jurisdiction/venue determination and discussion of trends therein  Extensive discussions of whether settlement is in best interest of parties  Generalities regarding filing suit and the interim from BRC to Trial or subsequent settlement (depositions, discovery, discretionary cost, time value of money, personal involvement, fees, etc.)  Projection/Prediction of Judicial review  Possible Appeal  Plaintiff’s private discussions with counsel and family  Defense counsel’s private discussions with Adjuster/Employer  Plaintiff’s “venting session” or “day in court”  Second Injury Fund involvement Text and your Questions to 22333

49 THE BRC NEGOTIATION-HOW IT WORKS  Demands and Offers exchanged through the mediator’s movement from room to room  Jurisdiction/venue determination and discussion of trends therein  Extensive discussions of whether settlement is in best interest of parties  Generalities regarding filing suit and the interim from BRC to Trial or subsequent settlement (depositions, discovery, discretionary cost, time value of money, personal involvement, fees, etc.)  Projection/Prediction of Judicial review  Possible Appeal  Plaintiff’s private discussions with counsel and family  Defense counsel’s private discussions with Adjuster/Employer  Plaintiff’s “venting session” or “day in court”  Second Injury Fund involvement Text and your Questions to 22333

50 STATION 4. JOINT SESSION/ INDIVIDUAL INTERVIEWS AND NEGOTIATION STATION In conclusion, the Top Tips for maximize the results in the BRC are exercising/excising demons, exercising good judgment, exercising good body language, exercising listening skills, exercising communication skills and exercising negotiation skills.

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53 STATION 4 JOINT SESSION/ INDIVIDUAL INTERVIEWS AND NEGOTIATION STATION You can get a very strenuous workout from the Joint Sessi0n, Individual Interview(s) and Negotiation Station but it pays off in the end if you follow the Boot Camp Success Tips.

54 STATION 5 The BRC “Conclusion” Station -By Howard Keltner Text and your Questions to 22333

55 FITNESS CHECK! If a party disagrees with the contents of a “dispute certification notice” issued by the mediating specialist, then the party is required to file an objection with the mediator within ___ business day of receipt. A.) 10 B.) 7 C.) 5 D.) 2 Text and your Questions to 22333

56 ANSWER C.) 5 Text and your Questions to 22333


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