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CD1408-11 © 2014 LRP Publications
Based on these developments the
employer agreed to accept the claim
inclusive of lost time and medical. As
a risk mitigation strategy, “everybody
just knew about it” isn’t a plan I’d
MICHELLE KERR is the editor of this
column and can be reached at mkerr@
lrp.com. This column is based on the
experiences of a group of long-time claims
adjusters. The situations they describe are
real, but the names and key details are kept
; Edited by Michelle Kerr
report indicating work-related history
and finding the fracture causally
I was even less surprised when
I received a Medicare conditional
payment lien for the hospital and
outpatient care. My attorney opined
that exposure was limited to paying
the eight weeks of incurred lost time.
Defense counsel said we’d have
to cover Medicare’s lien. Under the
Medicare Secondary Payor Act, any
commercial insurance had to pay
prior to Medicare. Since Medicare
perceived this to be workers’
I received a claim involving a serious ankle fracture from
a slip and fall. The injured worker, Greg, 65, had slipped
on his office’s carpeted floor. Three co-workers witnessed
the accident. Greg was taken to the emergency room and
admitted. My nurse case manager confirmed a diagnosis
A Not-So-Magic Carpet Ride
of right ankle tri-malleolar fracture.
Greg, a part-time employee,
remained out of work.
When we spoke, he was somewhat
guarded. I asked if there was
anything that contributed to his fall;
he replied that perhaps the carpet
was uneven. He said there was no
prior relevant medical history, and
provided the names of the co-workers
who assisted him.
The claim looked compensable
since it arose out of and occurred
in the course of employment, and
on the employer’s premises. But I
decided to interview the co-workers
Two confirmed that there were
places where the carpet was uneven,
but “everybody just knew about
that.” Both also remarked that Greg
was on his cell phone when he fell.
I spoke with the employer about
the carpet. They had leased space
in the building six months prior. As
part of their leasing incentive, the
building owner had carpet installed.
I asked permission to have an expert
examine the carpet where Greg fell,
with 12 days left prior to initiating
In the interim, I received the
index bureau report showing that
Greg had fallen in a bowling alley
a year before, spraining the same
ankle. It troubled me that Greg failed
to mention being on a cell phone and
also having a prior injury to the same
However, my expert confirmed
that the carpet was uneven. Under
the floor there were recessed
chambers with electric plug outlets.
On top of each chamber was a lid,
which allowed lessees flexibility in
configuring cubicles. When carpet
was laid on top, it wasn’t quite flush.
Inasmuch as the employer had
seen the floor prior to carpeting,
without objections, I thought it
resolved the matter. But that wasn’t
quite the case.
When I told the employer of my
findings and my intention to accept
the claim, they balked. They felt that
Greg violated their procedures by
being on a cell phone and also by
failing to mention a prior injury.
They planned to submit his claim
to their disability carrier and have
him use his private health coverage.
I sent the requisite denial letter to
I wasn’t very surprised when I
received a statutory hearing notice.
It turned out the disability carrier
denied the claim due to the doctor’s