Wyolawpod brings to life new and interesting legal topics to through conversations with successful and experienced Wyoming attorneys who teach you with stories of both accomplishments and lessons learned along their path to success.
EPISODE 1: Public Relations for Lawyers CLE Summary
Public Relations for Lawyers CLE Summary
Time Schedule: 70 minutes
Summary of Topics Covered
- Introduction of instructor Dennis Ellis
- Beginning a career in public relations after law school
- Transitioning from employee to public relations firm owner
- How to build up a client base
- The advantage of having a law degree while working in public relations
- Overcoming obstacles and bouncing back from disappointments
- Establishing trust and building relationships
- Charging for your work
Instructor Dennis Ellis, Esq. Bio
Microsoft TechSpark Manager, Wyoming 2017 – Present
Ellis Public Affairs, LLC Owner 2016 – 2017
Anadarko Petroleum, Director of External Affairs, Wyoming 2010 – 2016
Wyoming Medical Society, Executive Director 2007 – 2010
Colorado AG Office, Deputy Attorney General 2008-2008
Colorado Department of Public Health & Environment, Executive Director 2005-2006
Senior Policy Advisor Governor Owens 2005
Meditation Facilitator 2004-2005
Legislative Director Rep. Barbara Cubin WY 2000-2004
UW College of Law JD 2000
UW College of Arts and Sciences BA English 1996
Past President Wyoming Agriculture in the Classroom
Past President Wyoming Petroleum Association
Advisory Board Member to the Wyoming College of Agriculture
Commissioner on the Wyoming Mixed Martial Arts Commission
EPISODE 2: Taking Your Practice to the Next Level with an LLM in Entrepreneurial Law CLE Summary
Time Schedule: 60 minutes
Summary of Topics Covered
Introduction of Instructor Mathew Kaufman
Deciding if an LLM is a good fit with your legal career
Deciding what LLM is right for you
What is an LLM in Entrepreneurial Law
Working with your firm and law partners to plan for time away from work
Planning for the time away from family and how to stay healthy while commuting to school
Determining if there is a market for your new skills
The advantage of having an LLM in marketing your skills to clients
Instructor Mathew Kaufman, Esq. Bio
Partner at Hathaway and Kunz
Law Clerk, First Judicial District, State of Wyoming, 2005-2007
Member of the Governor’s ENDOW Counsel
Co-founder and Chairman of Array School of Technology and Design
Leadership Wyoming, Class of 2015
Past President, Wyoming Federalist Society
Wyoming State Bar, Young Lawyers, Executive Committee (past member)
Guest Lecturer, University of Wyoming College of Business
National Trial Lawyers, Top 40 Under 40 in Wyoming
American Society of Legal Advocates, Top 40 Under 40 in Wyoming
Mountain States Super Lawyers, Rising Star 2012-2015
National Trial Lawyers, National Top 100 Civil Trial Lawyers of 2015
L.L.M., Entrepreneurial Law, University of Colorado, 2012
J.D., University of Wyoming, 2005, Order of Barristers
B.A., Political Science, Sociology, Criminal Justice, University of Wyoming, 2002
EPISODE 3: The Magic of Video Depositions CLE Summary
Time Schedule: 60 minutes
Summary of Topics Covered
Introduction of Instructor Grant Lawson
What are the key advantages of taking video depositions
The use of props in video depositions
Getting the deponent “in the moment” to recreate an event
How to use a video deposition in trial, for settlement purposes and during focus groups
Using a video deposition to limit frivolous objections
Determining when to take a video deposition
Instructor Grant Lawson, Esq. Bio
Partner at Metier Law Firm
Graduate and Instructor at Gerry Spence’s Trial Lawyers College
Board Member Wyoming Trial Lawyers Association
Executive Member American Association for Justice
National Trial Lawyers, Top 40 Under 40 in Wyoming
J.D., University of Wyoming, 2006
B.S., Rangeland Ecology and Watershed Management, University of Wyoming, 2000
EPISODE 4: Origins of Work Comp CLE Summary
Time Schedule: 60 minutes
Summary of Topics Covered
Introduction of Instructor Michael Duff
European System and the French Train Project of 1832
Swiss Early Structure
German System and Otto Von Bismarck
- Factor Acts
- Liability Statutes
- WC Act of 1897
American Liability Acts/Federal Employee Liability Act of 1908
How These Issues Still Affect Work Comp in Wyoming Today
Instructor Michael Duff, Esq. Bio
Professor of Law, University of Wyoming
Founder, Co-Editor and Author, Workers’ Compensation Law Professors’ Blog
National Labor Relations Board, Regional Office Attorney
McTeaque, Higbee & Mac Adam, Associate
Massachusetts Department of Industrial Accidents, Law
Honors and Awards
2017 University of Wyoming College of Law Extraordinary Merit Award
Fellow, American Bar Foundation
Member, National Academy of Social Insurance
Fellow, College of Workers’ Compensation Lawyers
Pound Academic Fellow, Pound Civil Justice Institute
Recognition Award, Workers’ Injury Law and Advocacy Group
Centennial Distinguished Professor of Law, University of Wyoming College of Law 2014-2017
Workers’ Compensation Law
Teachers Manual for Workers’ Compensation Law
Wyoming Workers Compensation Law (forthcoming)
Secunda, Hirsch & Duff, Labor Law: A Problem Based Approach
Labor, Civil Resistance, and the Rule of Law
J.D., Harvard University 1995
B.A. West Chester University of Pennsylvania, Philosophy summa cum laude 1991
EPISODE 5: The Road To Discovery: Discipline, Patience and Persistence
Time Schedule: 60 minutes
Summary of Topics Covered
Introduction of Instructor Jack D. Edwards, Esq.
Interrogatories: Asking Good Questions
Document Request: Getting What You Need without Asking for Too Much
Patience: One Marshmallow versus Two
Dealing with Objections Round One: The Meet and Confer
Round Two: Written Notice of Inappropriate Objections
Round Three: The Motion to Compel
Instructor Jack D. Edwards, Esq. Bio
Owner, Edwards Law Office, PC, 2010 to Present
Associate, Luthi & Voyles, 2005-2010
Lincoln County DA, 2006
Associate, Hirst Applegate, LLP 2004-2005
University of Wyoming, JD 2004
University of Nevada, Reno, BA Criminal Justice 2001
Co-Author “Wyoming Foreclosure Law: Conforming to the Broad Changes Made by HB 112” 2006
Wyo Law Review
Commissioner, Wyoming State Bar, 2009-2012
Seminar Instructor Western Wyoming Community College, 2005-2011
President, Associated Students of the University of Wyoming 2003-2004
Member, University of Wyoming Board of Trustees, 2003-2004
EPISODE 6: Workers Compensation Secrets Revealed
Time Schedule: 70 minutes
Summary of Topics Covered
Introduction of Instructor Josie Sanchez
How does one become a claims analyst
What you should and should not do in working with your claims analyst
Importance of an accurate report of injury
Communicating with your claims analyst
What is proper notice you should receive for a change in benefits
How are IMEs scheduled
How not to upset your claims analyst
Guidelines for claimant attorney communications with claims analyst
Long term injuries and the importance of following up with your doctor
Negotiating final determinations directly with the claims analyst
Red flags, investigations and social media…aka how not to lose your benefits
What to do when benefits are denied and you are waiting for hearing
Instructor Josie Sanchez Bio
Josie Pacheco is retired from the State of Wyoming after 21 years of service. Josie started at the State of Wyoming with Workers’ Compensation as a reception clerk and started learning the details of the job she would soon do as a claims analyst. She was passionate about her job and was quickly promoted to be an analyst. After about two years as a claims analyst, Josie was managing a case load of between 450 and 500 claims at a time and continued to do so for the next 19 years. She retired in 2018 and is enjoying her retirement and her new hobby of bee keeping, but she still takes calls from her former claimants to help them and answer questions about their cases. Josie has a vast knowledge of the work comp claims process that will be beneficial to claimants and claimant’s attorneys alike.
Episode 6: Transcript
12 WYOLAWPOD PODCAST INTERVIEW OF JOSIE PACHECO
13 March 27, 2020
14 Episode 6
1 MR. KALLAL: Good afternoon, and welcome to
2 the fifth [sic] episode of Wyoming Law Pod. I’m excited
3 today. We’ve got our first nonattorney guest on the show.
4 Josie Pacheco is retired from the State of Wyoming after 21
5 years of service. After retirement, she’s been doing the
6 little things she didn’t have time to do before — updating
7 her house and taking care of her new hobby, beekeeping.
8 Josie started at the State of Wyoming with
9 workers’ compensation as a reception clerk, learning the
10 details of her job, and then she worked her way up to
11 senior claims analyst. She was very passionate about her
13 Josie left the Division in 2018, and she
14 continues to get calls from claimants for the direction of
15 their claims. We’re very excited to have her here today
16 because we think it will give both attorneys and claimants
17 a whole new perspective on the workman’s comp system and
18 how to operate within it.
19 Thank you very much for being a guest today,
21 MS. PACHECO: Thank you for inviting me.
22 MR. KALLAL: I guess, first of all, kind of
23 give our listeners the idea of what went into an average
24 day, if there was such a thing, when you were working as a
25 claim analyst.
1 MS. PACHECO: Very quiet from 6:00 to 8:00,
2 and then the phones start ringing off the hook. And then
3 working your claims, your bills, and all your messages in
4 so that you can get everybody called back and get all your
5 claims done.
6 MR. KALLAL: What hours did you work, then,
7 typically, as a claims analyst?
8 MS. PACHECO: In order to get a lot of work
9 processed, I started at 6:00, 6:30, and 7:00, depending on
10 the time of the year. Like in the spring, start coming in
11 a little bit earlier so that you can — your phones aren’t
12 ringing and you’re — you can get your work done.
13 MR. KALLAL: So would that be like a
14 designated quiet time, where you wouldn’t have to take any
15 phone calls or —
16 MS. PACHECO: Yes.
17 MR. KALLAL: — receive emails?
18 MS. PACHECO: Yes. That would be a
19 designated quiet time for me.
20 MR. KALLAL: Okay. Would you work until
21 3:30 in the afternoon?
22 MS. PACHECO: 3:30 average, yeah.
23 MR. KALLAL: So it is an 8-hour, 40- —
24 8-hour-a-day, 40-a-week —
25 MS. PACHECO: Yes, it was.
1 MR. KALLAL: Did you have the freedom to
2 kind of designate times when you would and wouldn’t take
3 phone calls?
4 MS. PACHECO: We were instructed to always
5 answer our phone. So there weren’t times where you were —
6 like dead time. So I chose to come in earlier hours so I
7 could have that time — that freedom to start doing work
8 that needed to be done without being interrupted by the
9 phone. However, my claimants knew that I was there early,
10 and those that needed to call could call at that time. But
11 for the most part people called after 8:00.
12 MR. KALLAL: So would the claimants have a
13 direct line to you, or would they need to go through a
14 receptionist to get ahold of you?
15 MS. PACHECO: No. We have our direct line.
16 MR. KALLAL: So where that direct line, if
17 you’re on the phone, does it automatically go into
19 MS. PACHECO: No. The phone rings and you
20 pick it up. So you’re never allowed to star your phone,
21 meaning turn off your ringer and let it go to voicemail.
22 You were instructed that you always had to answer your
23 phone, unless you were on the phone.
24 MR. KALLAL: And that’s — I guess that’s
25 what I meant. If you were on the phone, would it go to
1 voicemail? Or what was the process then?
2 MS. PACHECO: Yes, it would go to voicemail
3 if I was currently on a phone call.
4 MR. KALLAL: When you start out for the
5 Division, how did they train you, or do they just kind of
6 throw you to the wolves? Or what’s the process of becoming
7 a claims analyst?
8 MS. PACHECO: When I started as a claims
9 analyst, we didn’t have a trainer. So basically I learned
10 on my own. As time went on, they had someone who trained
11 and they went through a training process. And usually it
12 was 30 to 60 days. I’m not quite sure, because I never had
13 to really go through that. Pretty much I learned from
14 keeping my statute book open in front of me, and when I
15 took calls, I looked up information. And if I didn’t have
16 it, I’d call them back with it. So pretty much I self-
18 MR. KALLAL: About how long did it take you
19 to feel comfortable handling different claims?
20 MS. PACHECO: I would say that whole
21 training period, for the basic information, was two to
22 three years. Because as laws change, so does your job. So
23 you are always learning the process of bills, paying bills,
24 the process of sending claims to hearing would change. So
25 everything is always changing, so you had to learn
1 something different all the time.
2 MR. KALLAL: When you started, did all the
3 claims go to the Office of Administrative Hearings or were
4 some of the cases still going to district court?
5 MS. PACHECO: I believe they were going to
6 the Office of Administrative Hearings. It’s been so long
7 that I don’t even remember now. But every time we created
8 a package that needed to go to hearing, they went through
9 the managers, and the managers went through your package
10 and there was criteria you had to meet. If all your
11 information wasn’t there, then they’d send it back and you
12 had to complete the package again. So once it got to the
13 managers, they’re the ones that send it on.
14 MR. KALLAL: You basically learned through
15 teaching yourself and then probably a combination of
16 positive and negative feedback from your managers?
17 MS. PACHECO: Yes. Exactly.
18 MR. KALLAL: That’s a pretty — pretty
19 difficult way to learn.
20 MS. PACHECO: It is a difficult way to
22 MR. KALLAL: Has it — has the system
23 improved now, or is it pretty much the same?
24 MS. PACHECO: No. The system has improved.
25 Like I said before, at the time that I became an analyst,
1 that’s when they designated more money to hire more
2 attorneys — I’m sorry, attorneys — analysts. And they
3 hired four or six of us at that time — during that time
4 period. And we all didn’t get that specific — specified
5 training that we needed to become a claims analyst. So my
6 very first job that I did for the first two weeks was
7 paying temporary total disability. And then in the
8 meantime, you’re taking phone calls and — and answering
9 emails and referring things to hearing and — with no
10 specified training. So as it went on, you just learned
11 from hit or miss, I guess.
12 But I also worked as a clerk up front for a year
13 and a half. So we did letters there. We took phone calls.
14 We could look up payments. So I knew all that already from
15 the year before. And so that really helped becoming that
16 claims analyst. A few years after I became a claims
17 analyst, they did away with clerical people being able to
18 give out any information. So that was already with me.
19 MR. KALLAL: When they started you out, how
20 many active cases did they give you?
21 MS. PACHECO: I believe in the beginning I
22 had 160. And then, as you learned, they add on. And as
23 everything is going okay and you’re starting to produce
24 more work, they add on. So by the time I left, I was close
25 to 400, 500 claims.
1 MR. KALLAL: It’s hard for me to even get
2 my head around how you can begin to manage that many cases.
3 I mean, is it a combination of software in systems, or how
4 do you — how do you manage that without going crazy? Or
5 do you just go crazy?
6 MS. PACHECO: You just go crazy. You just
7 take it a day at a time. You work the work that’s in front
8 of you. You take the calls that come in. And that’s why I
9 was stickler about trying to answer all my phone calls when
10 they came in, because if you let your phone go to
11 voicemail, you have to spend time writing down the message,
12 trying to figure out what the call was about, and then
13 calling the person. And you could have just taken care of
14 that in a minute. And a lot of times you’re looking up to
15 see, all right, what happened yesterday with this person?
16 And then calling them back, and it was a simple question,
17 or did I just get my check — I was just wondering if I got
18 my check today or if it went out last week or something
19 simple. So it’s just better to take the calls rather than
20 trying to call everybody back.
21 MR. KALLAL: What percentage of the calls
22 would you say are just those simple, kind of easy
23 questions, versus complicated ones?
24 MS. PACHECO: I would say less than
25 10 percent were simple calls.
1 MR. KALLAL: Okay.
2 MS. PACHECO: The other calls were what’s
3 going on with this bill, or I need to see a doctor, or when
4 is my — when is my impairment rating, or do you refer my
5 claim for hearing. So things that you have to — literally
6 have to look up the claim number, get into their claims
7 notes and figure out where we were at that point.
8 MR. KALLAL: And how long did it take you
9 to build up to the point where you’re managing 4- to 500
10 cases at a time?
11 MS. PACHECO: I would say six months to a
13 MR. KALLAL: That’s amazing.
14 MS. PACHECO: Around six months.
15 MR. KALLAL: That’s a pretty quick learning
17 MS. PACHECO: Yeah. You don’t have time to
18 do much once you sit down.
19 MR. KALLAL: When you were there, was there
20 kind of a high initial turnover? I mean, lots of people
21 coming in and being like, whoa, this is just not for me.
22 This is an awful lot.
23 MS. PACHECO: Yes. I believe there was at
24 a — at a point when we moved to the address on Pershing —
25 because we lived — lived — worked at the Herschler
1 Building, and once we worked at the Pershing building, you
2 could see more what was going on. And when a unit was
3 short a claims analyst, if our unit or district was caught
4 up, then we would need to go and help with the other
5 district to help them with their claims, because being
6 short one person is going to add a lot of extra phone calls
7 and a lot of extra work, because, one, you don’t know the
8 person. You don’t know that workload. You don’t know how
9 that person processed their workload. So you’re almost
10 learning a whole new workload by the time you’re doing
11 theirs, and you’re taking up much more of your time, so…
12 MR. KALLAL: There’s got to be just so many
13 different personalities that you’re dealing with. That’s
14 got to be hard to come just jump into a situation where
15 there’s already a relationship and be like, oh, I’m new for
17 MS. PACHECO: Yes, there are many different
18 personalities. But you have to be a people person. You
19 have to be very understanding. You have to have a sense
20 of — I’ve lost the word I’m looking for — compassion for
21 claimants, because not all claimants are out there to get
22 money. Most claimants — 99 percent of claimants really
23 did get hurt, and they really do have pain, and they all
24 have a different pain from the next person. And my motto
25 always was every person’s body is different.
1 MR. KALLAL: You know, and it’s really
2 wonderful for me to hear that from you, because often, as a
3 personal injury and work comp attorney, people just assume
4 that our clients are out there, you know, just to get money
5 or that they weren’t really hurt. And my experience over
6 the years has been almost identical to that. You know,
7 I’ve had one or two cases out of hundreds where people
8 were, you know, faking it or weren’t entitled to benefits.
9 And one of the cases, the client was mentally ill, and the
10 other case the person was legitimately faking it. But
11 that’s, you know, literally that one percent. So it’s nice
12 to hear that the broader experience is same too.
13 MS. PACHECO: Uh-huh. You just have to
14 have an eye open for red flags. If they’re not getting
15 medications, then why are you still on workers’ comp? Or
16 if they are getting more and more medications, but their
17 pain levels aren’t going down, there’s just a lot of
18 different red flags that you watch for to find out who
19 really needs different kind of care or is this somebody
20 that’s really faking it.
21 So for the most part, like I said before — for
22 the most part, people are not faking it. I don’t think
23 anybody really wants to fake pain.
24 MR. KALLAL: And I definitely want to talk
25 about red flags and stuff a little bit later on, but I
1 think that that is a good segue into the first kind of
2 section we want to talk about today for claimants and also
3 as an attorney. I mean, it basically — people eventually
4 come to us usually because there’s some kind of failure in
5 communication, whether it’s like a contract dispute, a
6 divorce, almost every dispute originates with a failure or
7 breakdown in communication. And so I’d first like to give
8 the claimants out there an idea of kind of some dos and
9 don’ts and maybe what to expect.
10 One of the things I was wondering is when
11 someone — when a claimant is first injured, should they
12 reach out to the claims analyst, or is it better for them
13 to just sit back and wait for the claims analyst to contact
14 them about the case?
15 MS. PACHECO: One thing is that if they
16 reached out to us and we don’t have an injury report, we
17 wouldn’t really know what anything was, and there’s no way
18 to record our conversations. Once the injury report is
19 reviewed by the claims analyst and we have information
20 needed, then we always reach out first and say, all right,
21 this is my name. This is where we are, and you’re going to
22 be getting a letter. If it’s a simple finger cut, most of
23 the times we call to give them the claims number, make sure
24 you give this to the doctor, and call me if there’s any
25 questions. And that’s it. We open the claim, because it’s
1 simple cut and dry cut finger. They didn’t come to work
2 with a cut finger already, so you know that they cut it at
4 Then you have the claims that come in and they
5 are back injuries. Sometimes they come in with medical
6 records, because they didn’t file the claim right away.
7 And you got medical records, you can make a determination
8 at that point. Sometimes we need additional medical
9 records to make that determination. Maybe what we got just
10 didn’t explain what the injury was.
11 And there’s forms that need to be filled out, of
12 course. If they’ve got lost time. They have to fill out
13 the temporary total disability form. So as everything
14 starts to flow in and you get more information, you make
15 the contact with the claimant. Because they don’t know
16 where their claim is. If you don’t reach out and they
17 don’t call you — well, like you said, the communication’s
18 not there. Somebody has to reach out. If you have the
19 information, you reach out. If they call and say did you
20 get that medical record, and you look in there and maybe
21 you just didn’t have time to see it, it maybe hasn’t come
22 through your work flow, but you can see that it’s there,
23 you can talk about it and talk about what’s going on with
25 So I guess every situation, it just depends on
1 what kind of claim it is and how quick we get the
2 information to get their claim processed.
3 MR. KALLAL: If a claimant isn’t sure, then
4 would it be good for them to just reach out and say hello?
5 MS. PACHECO: Yes. Yes, it would. I mean,
6 they can call and say — they’ll call the front desk,
7 actually, and the front desk would say, well, we don’t have
8 a claim number for you, and they would probably advise them
9 to file the claim. But maybe the claim number’s there. I
10 just don’t have that injury report come across my desk yet.
11 Once I have the claim number — or the claims
12 analyst has the claim number, then they’re able to at least
13 go through the claim and make sure that all the information
14 that’s on the claim is correct — birth date, social
15 security number. There’s just so much information on the
16 injury report that maybe something got entered incorrectly.
17 Because sometimes the employers fill out those injury
18 reports, and they may get a birth date wrong, or they may
19 get the injury wrong. You’ve got to have the full story of
20 what happened.
21 MR. KALLAL: On that note, how important is
22 it for the claimant to review the injury of report and make
23 sure it’s accurate?
24 MS. PACHECO: Very important, because the
25 injury — if the injury day is reported incorrectly, and
1 then they went to the doctor two days before it was on —
2 whatever — the employer says they had an injury on the
3 10th, and the claimant says, no, that was the 8th, and I
4 did go to the doctor on the 8th and here’s the medical
5 report. Well, you’ve got two different dates. Now you’ve
6 got to go into the system and change the injury date. And
7 you want all the dates to be correct. You want all the
8 information to be correct. You may have a social security
9 number out there that’s incorrect, off by one number.
10 Well, you may be going under the — under the — I want to
11 say another claim person — claimant, because they may have
12 three claims with the last four of 111 and yours is 112,
13 but if they report it 111, you’re going to fall under him.
14 So at that point you were him or her and you’re not you.
15 So all of that information needs to be checked. So that’s
16 why we do a claim review before we even call that claimant.
17 MR. KALLAL: Okay. And then if the
18 claimant has like a prior history or preexisting injuries,
19 will you let them know what additional medical records that
20 you need, or do you like them to just go ahead and try to
21 bring that in to you?
22 MS. PACHECO: So if a claimant has a first
23 injury report from two years ago, and then you get a new
24 injury report and just say it’s back, then you’re going to
25 go into the old records, because you still have access to
1 all these records. And you’re going to go to that old
2 claim number and see where their treatment ended, see if
3 the doctor said they resolved, see if this is going to be
4 an ongoing.
5 And then when you get the new claim, you’re going
6 to be asking what part of the spine was it? Is it the same
7 area? You’re going to need medical records to prove this
8 is a different section of the spine, because workers’ comp
9 — one of the most important things that you need to
10 explain to a claimant is your neck is not your upper back.
11 And your thoracic spine is not your lower back, your lumbar
12 spine. So you have to be very specific at what level,
13 because workers’ comp buys that level or levels. If you
14 have a different level, then it’s surely going to be a
15 different claim. If it is the same level, then you’re
16 going to need to find out was that old claim completely
17 resolved? Was he still seeing the doctor? Is this a
18 reinjury, or is this a new injury?
19 MR. KALLAL: And does the Division have
20 written guidelines for the claims analysts on how to
21 determine whether an injury is compensable or not?
22 MS. PACHECO: A claim analyst has access to
23 a nurse case manager. And with very complicated body parts
24 like the spine, a nurse is very valuable on helping you
25 determine whether this is a new injury or a prior injury.
1 MR. KALLAL: Would that also be true to
2 determining whether it’s preexisting and not related to
4 MS. PACHECO: Right. And we look at
5 causation. You know, the guy might have had a bad neck
6 from the last claim, but in the new claim he’s walking down
7 the street and a brick falls down and hits him on the head.
8 Well, that’s a new claim. We’re going to start picking up
9 everything from that day for that new injury, because it
10 might effect the old claim, but now the old claim is going
11 to be obsolete. They’re going to close that claim down and
12 start new all over again with a new claim.
13 MR. KALLAL: Okay.
14 MS. PACHECO: Does that make sense?
15 MR. KALLAL: That does make total sense.
16 Back to the basics of communication. Is it
17 better to do the phone call, or is it easier for email?
18 MS. PACHECO: Well, email is a log of what
19 you actually said. And it’s going to go in that person’s
20 file. So those emails are printed, and they go to the
21 file. So it’s exactly what you said and what they said.
22 So either way, we have recorded phone calls. And if
23 something was not said, and they did something different,
24 does that — anyhow, it’s a recorded call. So it’s just
25 like an email. So if you have the time to do that, some
1 people prefer emails. Some people you cannot talk to them
2 about their claims, because they’re hot. They want
3 everything written down anyways. So some claimants prefer
4 to have emails. Some claims analysts don’t — I mean,
5 everybody’s personality at some point clash. So sometimes
6 an email’s the only way you can communicate. So whatever
7 is good for that claimant and that claims analyst, that’s
8 probably the way you should go.
9 MR. KALLAL: So is that a conversation that
10 a claimant should have with their claims analyst to find
11 out what’s going to work best for them?
12 MS. PACHECO: I think the claims analysts
13 prefer to have the phone call. But if it’s a way that — I
14 had somebody who was hard of hearing and could never
15 understand me on the phone. So it was a lot easier for me
16 to write an email to him and his wife, and then they would
17 respond. But all those — like I said, those conversations
18 were always printed out and would go to the file. So
19 they — we had evidence that that claims analyst — what
20 that claims analyst said to that claimant and what the
21 claimant said to us. So at the end of all of my
22 conversations, I would always ask does that make sense? Or
23 do you understand that? Do I need to say something
24 different? Because it’s important for that communication
25 to be there, or they go away just as empty as when you
1 first started the conversation.
2 MR. KALLAL: And how often do those
3 recorded conversations — I mean, do they end up being used
4 to determine what was actually said, or is it just kind of
5 there for the records?
6 MS. PACHECO: It was there for the record.
7 I don’t think we had people who really needed to have
8 somebody else review the conversation. I think, for the
9 most part, conversations over the phone were
10 straightforward. I don’t believe that I had anybody who
11 did that, except for if I was short, maybe I had a bad day
12 going and I was really busy, and they called my manager and
13 say she was really condescending to me. And then the
14 manager would listen to the conversation and then call me
15 in and say, all right, so they said that you said this and
16 that. And I’d say, well, that wasn’t how I recall it. And
17 then they’d play it, and whatever it was that I said, I
18 heard, and I’d say, well, that was really kind of
19 different, or that’s exactly what I said. So…
20 MR. KALLAL: So it’s probably important for
21 claimants to know that their analysts have bad days too,
22 just like other people, and may not reflect them or their
24 MS. PACHECO: Yes. And I’ve had those
25 types of claimants who we started off on the wrong foot.
1 And at some point you just start really being nicer so that
2 they know that you’re genuine, and that, okay, she must
3 have had a bad day.
4 And I’ve had claimants who would actually call me
5 later and say, wow, remember when we couldn’t even talk
6 because we didn’t get along, and now we are. And it’s
7 like, well, you know, probably had a bad day. One of us
8 had a bad — hard time, and it could have been them, or it
9 could have been myself. And you just get through those
11 MR. KALLAL: Because there’s definitely
12 going to be lots of days that claimants are having bad
13 days. And it sounds like with the caseload of the analysts
14 that there’s probably a fair number of bad days for
15 analysts too.
16 MS. PACHECO: Yes. And we’re expected to
17 just say — put that on the burner and move to your phone
18 call. And sometimes it’s hard. You’re busy. You’re
19 required to review X amount of claim — injury reports a
20 day. You’re required to meet that quota every single day.
21 And if you don’t, then you’re behind, and then you get
22 called in. And when you’re not doing it, then, of course,
23 that’s going to come across your voice, because you’re
24 stressed out, you’re trying to get your work done, and
25 here’s this person calling me to find out if his check went
1 out, when we’ve already told him, look, I called you last
2 week. I told you your check is going to go out on this
3 date, and now you’re calling me to find out if it went out.
4 So those are times I would say, well, you know, I’m trying
5 to get my work done, and here’s this person calling me for
6 the check. And we can get grumpy, you know.
7 MR. KALLAL: What is that quota that you
8 were mentioning? The daily quota.
9 MS. PACHECO: I believe we were supposed to
10 get seven — and I — you know, I’ve been gone for two
11 years now, and the quota may have changed. However, at
12 that time, it’s real difficult to pay all your bills and
13 meet the quota of injury part, plus make all your phone
14 calls within 24 hours of a call. And — but you’ve got to
15 do it. You’ve got to find the time. And there were a lot
16 of times I worked through lunch. Almost always worked
17 through breaks. And I hardly ever got out at my time at
18 3:30 or 4:30, when I would leave them.
19 MR. KALLAL: Wow. Then what’s your
20 consequence if you don’t make your timeline?
21 MS. PACHECO: Then you, I guess, don’t get
22 a good word from your manager. But I think my manager knew
23 that I had a lot a lot of claims and I had a lot a lot of
24 phone calls. And they were able to record how many calls
25 you got in a day. So you — some days you’d go through
1 your logbook, and then they’d want to go through your
2 logbook. You take your logbook in there, and they knew
3 that, for the most part, you were on the phone all day, so
4 there was hardly any time to do your claims, but get out
5 there and do them today. So…
6 MR. KALLAL: So in terms of claimants
7 contacting their analysts, like when is it just too much?
8 I mean, when are they kind of crossing the line of
9 effectively communicating and becoming burdensome and
10 really, you know, not only slowing down the process for
11 themselves, but obviously hurting other claims — or
12 claimants in the process?
13 MS. PACHECO: Well, every single injury
14 report required a call. And it was called a three-point.
15 So you had to make a phone call to the employer, you had to
16 make a phone call to the claimant, and you had to make a
17 phone call to the healthcare provider, if it was known. So
18 the three-point had to be made on every claim. Even if it
19 was a finger cut. Everybody got a phone call.
20 MR. KALLAL: Just shifting gears a little
21 bit. What is one guaranteed way that a claimant could just
22 really tick you off as an analyst?
23 MS. PACHECO: If they called three and four
24 times a day. If they called every single day. I had one
25 claimant who just needed to talk to somebody every day. So
1 at some point you just got to say, you know what, I’m super
2 busy today. I’ll call you next week. But it was just to
3 gab most of the time. So that one person, I finally just
4 had to say, you know, I’m really sorry. I have so many
5 claims. I can’t call you every day and just chitchat,
6 because my phones are being monitored by my manager, and if
7 it’s not business, then I can’t talk.
8 And it — it’s really hard for me to even say
9 that, because I’m the kind of person that’s very caring.
10 And if they wanted to talk about how bad they hurt today,
11 and what they had to do tomorrow, and when were they going
12 to get up tomorrow, you know, I felt like I needed to hear
13 it, but yet my workload was just too much, you know, to do
14 those kinds of things. So…
15 MR. KALLAL: And along with the work comp
16 benefits, does the Division produce any kind of list, like
17 community resources and things like that, to help injured
18 workers while they’re kind of dealing with the transition
20 MS. PACHECO: The transition time into
21 getting paid or before they go back to work? What —
22 MR. KALLAL: Kind of — either one. We
23 just deal with people, you know, whose benefits may have
24 been cut off, but they aren’t quite ready to return to
25 work, or they haven’t gotten their benefits yet, and so we
1 often refer to them to different community resources. And
2 I didn’t know if the Division had anything like that.
3 MS. PACHECO: So we shouldn’t just cut off
4 benefits if they’re going to be in limbo. There’s a lot of
5 options. There’s voc rehab. There’s other awards they can
6 apply for. They — they should be warned before that time
7 period comes. So there shouldn’t be a lapse and no money
8 and putting them on the street.
9 So if you know that somebody’s going to get an
10 impairment rating, you need to tell them right away you’re
11 going to get some money from the impairment money, but
12 since we don’t know what the amount of percentage is and
13 how much you’re going to get, I can tell you that you can
14 start going to voc rehab. It doesn’t look like you’re
15 going to go back to job that you were doing before, or if
16 you need to contact your employer about light duty, and
17 he’s got it and you can go back to work, we can still
18 schedule the impairment rating and you’ll get extra money.
19 But there are — excuse me — are options. Like
20 I said voc rehab, get that started. If you know that
21 school isn’t going to start until the fall, then the best
22 time for you to start going to voc rehab is in the spring,
23 if you know that your benefits are going to be terminated
24 sometime in the summer. You don’t want to be in limbo.
25 So the claims analyst should be monitoring their
1 claims and letting their people know that at this point in
2 time, you’re going to be without money. So you start —
3 you got to start making decisions on if you’re going to go
4 back to work, if you’re going to go to voc rehab and get
5 paid to go to school, because you’re going to get money
6 from that. Go to school and you’re going to get paid for
7 it. So…
8 MR. KALLAL: Now, is that something that
9 the claimant needs to be proactive about asking about, or
10 is that something the claims analyst should be proactive in
11 telling the claimant about?
12 MS. PACHECO: Some claimants read their
13 material thoroughly. Some don’t understand it. So I would
14 start at the beginning — beginning of my claim and say at
15 some point we’re going to get to whether or not you can
16 return to work or not. So at that point we need to discuss
17 you going back to work or applying for other benefits. But
18 we’re not there now.
19 And sometimes it was confusing to some. To
20 others it was good information to have. They’d say, all
21 right, are we at that point right now, and you’d say yes or
23 So some of those claimants that read their
24 packets already knew when that time was coming. They’ve
25 already been through their physical therapy. They already
1 know they’re going to get released pretty soon. They
2 could — some of those people were already going back to
3 work, and you’re the one that’s going to initiate whether
4 they have to have an impairment rating. So they should not
5 have to be at a point where they’re completely off of any
6 kind of benefit —
7 MR. KALLAL: And how is it —
8 MS. PACHECO: — without knowing ahead of
10 MR. KALLAL: Sure. And how is that
11 decision made to send out — you know, to find out if they
12 need an impairment rating?
13 MS. PACHECO: There are letters that go out
14 to their doctors that ask them is So-and-so at maximum
15 medical improvement? And if they — some of those doctors
16 would fill out the form and say they’re not ready. They
17 won’t be ready for six more months. You put yourself a
18 little reminder on the computer, and at six months you send
19 the letter back out to the doctor, or you get them rated.
20 Because some of those doctors are very specific. He will
21 be at maximum medical improvement on June 1st. And it’s
22 May. On June 1, you’re sending them for an impairment
24 MR. KALLAL: So typically you try to do it
25 based on the recommendations of the treating physician?
1 MS. PACHECO: Yes. If the treating
2 physician is cooperating with workers’ comp. That’s the
3 best way to go. Because they are not going to question
4 their own doctor.
5 MR. KALLAL: How many doctors — I noticed
6 you used the word “cooperating.” How many — what
7 percentage would you say cooperate and what percent don’t
8 cooperate with work comp?
9 MS. PACHECO: There were very few that
10 didn’t. So I’m going to say of — just say 30 doctors that
11 you worked with, you got maybe one or two that are just not
12 cooperating. You know, they don’t want to fill out the
13 paperwork. They think it’s a waste of their time. Some
14 doctors just don’t communicate, you know. And I had a
15 couple of those doctors. And you’re calling — I sent the
16 form last week. Can you send it again? Can you send it
17 again, and it’s still not coming in. But that’s money that
18 you continue to pay out to your claimant, because your
19 doctor’s not telling their MMI. At a point where the
20 doctor’s not cooperating, that’s when you send them for an
21 independent medical evaluation and find out is this guy at
22 MMI? Can we get him rated?
23 MR. KALLAL: So that’s typically a
24 situation that’s caused by the treating doctor, not by the
25 claims analyst —
1 MS. PACHECO: The claimant.
2 MR. KALLAL: Okay. Because that tends to
3 be one of the ones we see more frequently in the cases
4 where claimants are looking for attorneys, but it doesn’t
5 sound like it’s very typical in the general scheme of
7 MS. PACHECO: No. I don’t — I don’t
8 think — I think that you can actually keep a claim from
9 going to court if you just listen and look at your
10 timelines and make sure that everything was done, that
11 you’ve given all the information. All that communication
12 that you have — you have letters that communicate with the
13 claimant that says once you have your impairment, you can
14 go for a permanent partial disability, and it explains it.
15 And/or you can go for voc rehab, and it explains it. Ask
16 your claims analyst what you’re looking at.
17 A lot of times — I believe that I told you the
18 story about my 60-year-old gentleman who just felt like
19 he’s not at retirement age. He needed to put in more time,
20 and what was he going to do because he wasn’t going to have
21 money, but he’s getting released. And I literally talked
22 him into going to voc rehab at 60 years old, and he now has
23 his company. I mean, if you communicate and tell them the
24 benefits of it — some of them are just scared. They
25 haven’t been to school in 40, 50 years, you know, they’re
1 scared. Some of them don’t have a GED, and you have to
2 say, look, if you’re going to go some place and do
3 something, you’re 40 years old, what are you going to do?
4 You’re not going to work. Are you going to — do you
5 have — do you have the skills to sit at a computer or are
6 you going to be a greeter at Walmart? You know, what are
7 you going to do? At some point, if you don’t have a GED,
8 show them where to go. Tell them they can go to the
9 college and get a GED while they’re on temporary total
10 disability, because they’re wasting their time if they’re
11 just at home on temporary total disability.
12 MR. KALLAL: For sure.
13 MS. PACHECO: Yeah.
14 MR. KALLAL: So I asked you what would —
15 what a claimant could do to really upset you. How about —
16 what about a claimant’s attorney? What can they really do
17 to set off a claims analyst?
18 MS. PACHECO: Oh, where are the — where
19 are the medical records for this claimant that I sent in
20 two weeks ago? I think it’s just because the attorney
21 doesn’t know the process. And so the process is when those
22 letters come in requesting medical records for a hearing,
23 they’re not sent to the claims analyst. They are logged on
24 the screen that everybody can read, but the attorney
25 probably is needing to contact the records manager, because
1 the records manager is the person that gets those, and the
2 records manager’s the one that prints those all out.
3 And then they have a team of — I’m going to say
4 when I left there, there was a team of four. So she would
5 have each one of those persons printing out records and
6 getting those records for the attorneys. But the attorneys
7 are not the only ones that need a medical file. Treating
8 physicians need medical files. And voc rehab needs a
9 medical file. And when a claimant changes doctors, the new
10 physician needs a medical file. So they’re constantly
11 printing records all day long. So if we got a hundred
12 requests for medical files, well, your request is there,
13 and I’m not doing it. So…
14 MR. KALLAL: So it does no good if the
15 attorney’s aggressive or mean or rude.
16 MS. PACHECO: To calling the claims analyst
17 and just getting them angry because they don’t have the
18 medical file. It has nothing to do with the claim analyst.
19 The claims analyst can say, yes, we received it, and right
20 now I’m reading a note there that says they’re in the
21 process of printing. Or they did get it, but it looks like
22 she’s had it for two weeks. Let me make a phone call for
23 you and find out. Or here’s the number. You can call and
24 find out where you are in the pool line, I guess that’s how
25 you want to say it. But…
1 MR. KALLAL: So are there rules governing
2 your communications with claimants’ attorneys —
3 MS. PACHECO: There are rules.
4 MR. KALLAL: — kind of pre-litigation?
5 What are — what are those rules?
6 MS. PACHECO: Yes. And, for the most part,
7 attorneys should actually go through the Division’s
8 attorney. That’s the best way to do things, is don’t call
9 the claims analyst. They’re just — you’re going to get
10 frustrated because some claims analysts are real sticklers
11 about how much information they can give the attorney, the
12 claimant’s attorney. The best thing is go to the
13 Division’s attorney, because the Division’s attorney is
14 going to tell you what they have, if they have your
15 records. They might have all the records. They just
16 haven’t sent you those records yet. And a lot of times the
17 attorney’s division [sic] gets two copies and he’s supposed
18 to send it to the claimant’s attorney and hasn’t done it
20 MR. KALLAL: Now, say the situation arises
21 where it hasn’t — issue has not been referred to hearing
22 yet. Is it okay then for the claimant’s attorney to talk
23 with the analyst, or is it still better to try to run
24 through a different channel?
25 MS. PACHECO: You can go through the
1 Division’s attorney, or you can ask the claimant to call
2 the claims analyst to find out if they’ve sent it. Some
3 analysts don’t want to be bothered by the claimant asking
4 when are you going to send my claim to hearing. But there
5 are guidelines for the claims analyst as well. If you get
6 that request for hearing, you have to process that — that
7 request for hearing right away. I mean, somebody’s life is
8 on the line. Somebody’s money is on the line. And when
9 you’re messing with somebody’s money, it’s just going to
10 look bad for you. So you want to try to get those requests
11 for hearings out as soon as possible. And it could be that
12 it’s not referred yet because the claims analyst has
13 10 claims, you have 20 calls to return, and can’t possibly
14 squeeze out.
15 If you are a good juggler of your time, you can
16 sort through papers while making phone calls. I mean, but
17 it’s hard to be that kind of person in that job. You don’t
18 want to miss something.
19 MR. KALLAL: Right. What’s the best way a
20 claimant can ensure a good working relationship with their
22 MS. PACHECO: If you get a phone call from
23 your claims analyst, call them back. But call them back
24 within the timely manner. Sometimes you’re trying to get
25 ahold of somebody to find out did you get the temporary
1 total disability form? I can’t set up your temporary total
2 disability form until you call me. Call them right back.
3 That — they’re waiting for you to call. So have the line
4 of communication open. If you — if you’ve moved, change
5 your address. If you’ve changed your phone number, call
6 and give them your phone number. Because some claim —
7 claimants have not changed their phone number in your log,
8 you’re trying to get ahold of them and you can’t, then you
9 stop payment. Well, then they’re mad because they didn’t
10 get their check. But it would have all been okay had you
11 just called the claims analyst and say, hey, I have a new
12 number, or my number was shut off, can you call this number
13 and leave a message. And, you know, communicate with your
14 claims analyst. Keep them up to date.
15 MR. KALLAL: And we hear this fairly often,
16 but stories of claimants, you know, calling up and yelling
17 at their analyst about where their check is. And I guess
18 it would probably be good for them to know whether or not
19 that can do any good at all.
20 MS. PACHECO: Well, once they look at the
21 notes and look at the file, they can tell — anybody can
22 tell if the claims analyst set up a check and it’s
23 scheduled to go out. So they can call the claims analyst.
24 And if they’re not there, you can get ahold of a manager or
25 their partner. And anybody can tell you if your check was
1 set up, and if it’s already gone out. Once it’s gone out,
2 we would always tell them it’s going to take 10 days before
3 we can even do a research on where that check is. So let’s
4 just say that it went out, but the postman delivered it to
5 somebody else’s address by mistake, because that can
6 happen. Well, by the time they get that from the person
7 they delivered it to back to the post office and back to
8 the Division, well, we can’t do anything about it until
9 10 days with the post office. Okay. At that point, it’s
10 considered a loss and we’ll replace it. But if you get the
11 new check — or the old check back, then you’ve got to call
12 the claims analyst, because that’s going to be canceled
13 now. It’s — as soon as you call and fill out that
14 paperwork it says I never got my check and it’s been two
15 weeks, we’re going to get you a hand check done, but do not
16 cash the other one, because it’s canceled. So does that
17 cover what I mean?
18 MR. KALLAL: Yeah. So essentially the
19 thing to know is that once the check has been ordered, it
20 is out of the analyst’s hands.
21 MS. PACHECO: That’s right. Once it’s gone
22 out in the mail, it’s out of our hands. We can’t tell you
23 where that check is. You’ve got to wait.
24 MR. KALLAL: And I think that’s good for
25 people to know, just because I think there’s a lot of
1 frustration and stress, and, understandably, when you’re
2 living paycheck to paycheck and it’s less than what you’re
3 used to.
4 MS. PACHECO: That’s right.
5 MR. KALLAL: One thing I want to talk about
6 next is a lot of claimants have their system — or symptoms
7 essentially resolve, but then they might need treatment,
8 you know, every three months, four months, or sometimes
9 even just once a year. And I’m not sure that all claimants
10 get good advice on this, and so I’d like it if you could
11 share with our listeners what you would advise claimants
12 who had kind of minimal but necessary ongoing treatments
13 for injuries.
14 MS. PACHECO: Well, let’s just say they
15 continue on physical therapy, but now the doctor’s saying
16 they can return to work. So I always remind claimants that
17 if you have a follow-up appointment with the doctor, make
18 that follow-up appointment, because if you skip and you
19 wait a year to go back, but you’ve had continued pain this
20 whole time — they’ll say I just didn’t have time to go.
21 Well, that doesn’t help us in making the determination on
22 your claim because you didn’t have time to go. Make time
23 to go. Some doctors have Saturday appointments. Some
24 doctors have late weekday appointments. You’ve got to call
25 and make an appointment. Take a lunch appointment.
1 Because if you have something serious going on,
2 working through that whole year is not going to help your
3 claim. We’re going to question at — at one year what
4 happened? What were you doing in that whole year? Did you
5 get a new job? Are you — are you working outside your
6 restrictions? I mean, there’s a lot of questions we ask,
7 why is this claim being reopened? So if — I would tell
8 people as soon as they went back to work, if you feel like
9 you need to go see the doctor for that injury, you need to
10 go. Once they’ve had an impairment rating — and any
11 percent of impairment you will probably need to see the
12 doctor at least once every six months to keep your claim
13 open or to make sure that you update your doctor that
14 there’s any changes. That was my advice all the time. If
15 you wait three years, then you’re going to get a letter and
16 you’re going to need to prove why you’re going back to the
17 doctor and how it’s related to your original injury.
18 MR. KALLAL: What happens at that three-
19 year mark?
20 MS. PACHECO: Then, like I said, they’ve
21 got to go through all the paperwork that says do you have a
22 new job? Where have you worked in the last three years?
23 There’s just a — a long list of questions that you have to
24 do. And you also have to go back to the doctor. You
25 probably have to get all new MRIs. And at the end, the
1 doctor could say this definitely is related and it can get
2 reopened. We might have to send you for independent
3 medical evaluation to figure out is this still related.
4 There’s a number of things, depending on what information
5 we get back from the healthcare provider, if this is still
6 related to the original injury. Did you reinjure that body
7 part? Sometimes if it’s a disc and we bought L4, now it’s
8 S1, well, how did you do that? So we’re going to need
9 clarification from a doctor before we can ever open that
10 claim, did that fusion mess up that level above or below.
11 MR. KALLAL: And so is that — that
12 three-year mark, is that an automatic closing of the case,
13 or how does that operate?
14 MS. PACHECO: The computer is the — is
15 what closes the claim. And that’s one of the things that
16 some claimants just don’t understand. We don’t have time
17 to look at every single claim and say, all right, can I
18 close it? Are we able to do that at a year point? We
19 could. If it was still open, we can review it. And if
20 there’s no medical records for six months, we can
21 physically close the claim. But the computer actually
22 closes the claim if there are no bills coming through. The
23 computer will just say there’s not been any activity on
24 this claim and the computer just closes it.
25 MR. KALLAL: And is that at the three-year
2 MS. PACHECO: No. It could be at a
3 six-month mark. It could be at a year mark.
4 MR. KALLAL: So that’s why it’s so critical
5 to continue to treat every six months at least.
6 MS. PACHECO: Yes. At least.
7 MR. KALLAL: A lot of times final
8 determinations will issue that are adverse. Is it helpful
9 for the claims ana — or the claimant to try and negotiate
10 that with the claims analyst, or should they just file the
11 final determination, hire an attorney and go to hearing?
12 MS. PACHECO: I would definitely tell
13 somebody not to miss their time frame on responding to the
14 final determination. Can we make a different call after
15 that’s come in? Certainly. It could be just that maybe he
16 was in the hospital. Maybe he was out of town and he
17 wasn’t able to make that deadline. But let’s just say a
18 prescription came in and got denied, and he didn’t realize
19 it because he still had medication and he missed his time
20 to respond, but he still needs the medication. I mean, we
21 could go back and say, well, he’s been taking the
22 medication. For some reason the doctor didn’t get — or
23 the pharmacy didn’t get the information they needed. They
24 denied the claim. And while — we just keep moving on,
25 it’s just like you’re in a train and you just keep moving.
1 The claimant has to be up to date on all his
2 medications, on his medical treatment. And if we can see
3 that there was kind of a hang-up someplace, we certainly
4 could say, oh, okay. We’re going to not send that to
5 hearing now and we’ll get that paid for you. If it was a
6 medication that just seemed to me that, okay, it’s within
7 the formulary, and he’s been taking it, we look at the
8 history of medication and we’ve denied three months because
9 you didn’t call, and now you’re calling because you didn’t
10 get it. Well, we definitely are not going to send
11 something to hearing that we denied that was a total of $30
12 or a hundred dollars. For the most part, it’s better to
13 say, yes, let’s get that paid, and — but the doctor said
14 you can’t take it anymore, so don’t get any more, you know.
15 And I’ve done that a lot. You know, okay, you got it, but
16 the doctor said you shouldn’t have gotten it. So I’ll pay
17 those three — that $30, but don’t do it again —
18 MR. KALLAL: Okay.
19 MS. PACHECO: — kind of phone call.
20 MR. KALLAL: So it’s worth trying to
21 negotiate with claims analyst first.
22 MS. PACHECO: Yeah. Yeah. I think the
23 best thing for you to do is talk to your claims analyst.
24 See where the drop in the ball was. Was it your drop? Was
25 it our drop? I mean, everybody’s — anybody’s capable of
1 dropping the ball.
2 MR. KALLAL: And sometimes providers too
3 don’t necessarily treat —
4 MS. PACHECO: Oh, definitely. Sometimes
5 providers don’t send in their medical records from the last
6 six months. You have no way of — this guy’s getting a new
7 medication, and we’re going to deny the medication, but the
8 doctor’s notes aren’t there to tell us that he’s on a new
9 medication. So most definitely, you know, we get the new
10 medical records, and, sure, we can pay for that now, and so
11 don’t worry about the last three bills. We’ll get those
13 And so we definitely can work on those types of
14 things. And I know I keep saying in the present. I’m not
15 working there anymore, but —
16 MR. KALLAL: Right.
17 MS. PACHECO: — they definitely can work
18 on those things and try to keep something from going to
20 MR. KALLAL: So the key would be always
21 object to an adverse final determination, but then continue
22 to communicate with the claims analyst.
23 MS. PACHECO: Yes. Yes. Most definitely.
24 I think the claims analyst would rather pay a small bill
25 than have to work half a day preparing a legal package.
1 MR. KALLAL: I’m sure of that.
2 So you talked about a little bit earlier, but I
3 wanted to go into a little more depth now, about what kind
4 of red flags do you look for to determine if a claimant may
5 be taking advantage of the work comp system.
6 MS. PACHECO: Not going to doctor
7 appointments. I mean, claims analysts go out too. And if
8 they see a guy that’s out on the dance floor, but he can’t
9 work because he can’t stand more than 20 minutes or
10 30 minutes, but he’s dancing up a storm all night long,
11 well, there are red flags. Red flags the claimants can
12 see. We have medical records that say this guy can’t do
13 that, but he says he’s going to come see you and we watch
14 him walk through the parking lot and he doesn’t have that
15 problem, you know. So, I mean, there’s — you can red flag
16 a lot of things that you see or that you hear.
17 We get calls from neighbors. We get phone calls
18 from family that says this guy is —
19 MR. KALLAL: Oh, wow.
20 MS. PACHECO: — faking. He just wants to
21 get that paycheck.
22 And you’ve got to look into everything. So you
23 can red flag a claimant for a lot of different reasons.
24 MR. KALLAL: I had no idea that you’d be
25 getting phone calls from neighbors and family.
1 MS. PACHECO: Oh, yes. I’ve received phone
2 calls from a neighbor that says this guy’s receiving
3 workers’ comp and he’s cutting his grass. Well, you know,
4 you can have a hurt back and you can still cut your
5 grass — or — your grass.
6 And I had carpal tunnel, and I still cut my
7 grass. I mean, who’s going to cut it for me? You know,
8 there’s some things you have to do. But you’ve got to look
9 at those things too, you know. Is it something he
10 definitely should not have been doing? Washing his car?
11 You know, go through the drive-up — or drive-through. But
12 a lot of things can be red flagged.
13 The way they take medication. Maybe they’re not
14 taking any medication at all, or they go and they get
15 tested and they’re not on any of the medication they’ve
16 been getting. And that’s been done before too. You can
17 have him tested to see if they — they’re on pain
18 medication and none of those medications come up, you know.
19 MR. KALLAL: At what point would the
20 Division hire like an investigator to investigate a
22 MS. PACHECO: When you get those types of
23 phone calls from people that are concerned. An employer
24 will follow a claimant sometimes. Or an employer will get
25 a notice from another employee that says, you know, I saw
1 this guy out yesterday, and this is what he’s doing and he
2 can work. You know, so even employees will tell on you.
3 Because they don’t think it’s fair that they have to work
4 and you’re not.
5 So if an employer calls and says we need to get
6 this guy investigated — well, the employer’s requesting
7 it, you let them know how much it’s going to cost, and if
8 he wants to proceed, they do.
9 MR. KALLAL: So is that responsibility of
10 the employer, then, if they want an investigation, to pay
11 for it?
12 MS. PACHECO: Yes. It’s going to be
13 applied to the employer account.
14 MR. KALLAL: And does the Division have its
15 own investigators, or do you hire private investigators?
16 MS. PACHECO: There are a lot of private
17 investigators that are registered with the State of
18 Wyoming. And you contact those investigators. You give
19 them all the information. You let them know when they have
20 appointments. He goes to physical therapy every Tuesday
21 and Thursday at 10:00. They follow you. The investigators
22 will follow them, and they will record and watch what they
24 MR. KALLAL: A claimant should be aware
25 that anything they’re doing outside of their home could be
1 video’d or observed by an investigator.
2 MS. PACHECO: If they are working outside
3 those restrictions that their doctor has applied.
4 MR. KALLAL: What’s kind of the most
5 egregious, I guess, example that you’ve seen of someone
6 kind of taking advantage of the situation or doing
7 activities that they should not be doing?
8 MS. PACHECO: Hunting. I mean, I don’t
9 think that when you have an injury, that you should be out
10 hunting, unless somebody else is, which they’re not
11 supposed to do, shoot your game. And carry your game and
12 carry your rifle through uneven terrain. You shouldn’t be
13 doing that.
14 There are a lot of other people that — I guess
15 sports. I told you about the guy that had the shoulder
16 injury, but he was an arm wrestler.
17 MR. KALLAL: That one takes the cake, I
19 MS. PACHECO: You know, that one — that
20 one we won in court, because he — you have an injury.
21 You’re not going to work. You have restrictions, but
22 you’re arm wrestling.
23 You know, the other guy that I told you about
24 that was a hunter and he went hunting by himself. And when
25 he got home, the — the investigator recorded him throwing
1 the chains off of his truck, carrying his deer into the —
2 you know, into the garage, you know. You shouldn’t be
3 doing those things if your restrictions from your own
4 doctor say you can’t do that if you’re on permanent
5 disability. You can’t work if you’re on permanent
6 disability. If you’re working, then you shouldn’t be on
7 permanent total.
8 MR. KALLAL: So there are some egregious
9 examples out there.
10 MS. PACHECO: Yes, there are.
11 MR. KALLAL: But claimants should feel free
12 to do things to stay healthy, like try to mow the lawn or
13 anything that’s allowed by their — by their physician.
14 MS. PACHECO: By their physician.
15 And sometimes they — if you call the claims
16 analyst and you say, well, you know, we’re going to be
17 walking — well, I always suggest walking to a person with
18 a back injury. I would tell them the best medicine for you
19 is get out and walk. Because sitting down and watching
20 Oprah and The Price is Right all afternoon, laying down, is
21 not helping your back. You need to strengthen your stomach
22 muscles by walking and that’s going to help your back.
23 I always probably wasn’t a medical — good
24 medical advice, but I always did it. And I got a lot of
25 thanks from my claimants that got off of workers’ comp
1 because they walked.
2 So I had one guy that was on a ranch, and he
3 walked the whole ranch every single day. And it was a big
4 ranch, I’m guessing. But he went back to work right away,
5 three months, and he had just had surgery.
6 MR. KALLAL: Wow.
7 MS. PACHECO: So it tells me that they took
8 your advice and worked within the restrictions.
9 MR. KALLAL: That’s fantastic.
10 MS. PACHECO: Yeah.
11 MR. KALLAL: What about — how does social
12 media factor into the investigation of claims?
13 MS. PACHECO: Okay. Workers’ comp claims
14 analysts, we’re not allowed to go on social media to look
15 up information. If they had a suspicion that something was
16 going on, then they would need to go through the manager.
17 And I don’t know what the process at the manager’s level,
18 but I think they were able to do that investigation, look
19 and see if they were skateboarding and they weren’t
20 supposed to, whatever it is. Because people get on social
21 media, they tell their whole life. They tell you what
22 they’re eating three times a day. So…
23 MR. KALLAL: Basically the same thing,
24 anything that they’re putting out there on social media
25 could be —
1 MS. PACHECO: Used against them.
2 MR. KALLAL: — used against them.
3 MS. PACHECO: Yeah.
4 MR. KALLAL: So they need to be aware of it
5 and work within the system.
6 MS. PACHECO: Yes. Yes.
7 MR. KALLAL: What are the penalties if
8 someone is actually caught just blatantly defrauding the
10 MS. PACHECO: A gal that I had that was —
11 let me see if I can recall. She was on workers’ comp, but
12 she was on vacation and using that arm to do something.
13 She had a shoulder injury as well. And if you see the
14 information and you have the information in front of you,
15 videos from Facebook or newspaper articles, like my arm
16 wrestler, you can send those to the treating physician and
17 say is this fraudulent? Are they working? Are they doing
18 activities outside of their restrictions, and should they
19 be returned to work? Their doctor making those
20 determinations, through workers’ comp, telling you that guy
21 can go back to work. If he can do that and I told him not
22 to and he can do that, he can go back to work. Those are
23 the things that stand up in hearing. Those are the things
24 that are probably not going to go to hearing because
25 they’ve been caught, you know, and they won’t fight a
1 claim. But some of them do. Some of them do go to court.
2 And there’s not a very good chance of them winning their
3 claim if they’re working outside the restrictions or
4 playing outside their restrictions.
5 MR. KALLAL: That makes complete sense.
6 One thing we’ve seen recently — and I guess it’s
7 probably been going on a lot, but Jason and I both have
8 seen it here recently — but what are claimants’ options if
9 the treating physician prescribes like a nonapproved
10 treatment or a nonformulary drug, but they absolutely need
11 it? I mean, kind of — what are their options at that
13 MS. PACHECO: Their only options are to get
14 those independent medical evaluation and see if the
15 physicians can help. But for the nonformulary
16 prescriptions, I mean, workers’ comp just will not pay for
17 them. It almost has to go through the court process and
18 let that hearing officer make that determination.
19 MR. KALLAL: And so in the interim, when
20 they need the medicine, their only option is to pay for it
21 out of pocket.
22 MS. PACHECO: Pay for it out of pocket.
23 And even with temporary total disability, these are the two
24 things that — if you have to get a prescription, file that
25 reimbursement, at least it’s on file, and make sure that
1 it’s on file with the Division so that if you win that
2 claim — or that — that hearing, we’ve got those claims
3 there and we can pay those reimbursements. There’s no
4 proof that we — that you paid them out of pocket if we
5 don’t have the reimbursements.
6 Same with temporary total disability. If we stop
7 your temporary total disability and you’re still at court
8 and you’re still on temporary total disability, continue to
9 file those temporary total disability forms so that
10 workers’ comp is not trying to get those later on, and then
11 it’s too late. You’re going back to court because you
12 didn’t file those timely. So always submit your
13 reimbursements or your temporary total disability forms for
14 things that you’ve paid out of pocket or that you didn’t
15 get so that workers’ comp has those. It’s an easier trail
16 to follow — I guess, I don’t know how else to say it —
17 than to have to go back for a full year and try to get all
18 that paperwork together.
19 MR. KALLAL: And from the perspective of a
20 claimant’s attorney, I can agree 100 percent. It’s much
21 easier if we’ve got seven months, while we’ve been fighting
22 through hearing, of having TTD certifications from the
24 MS. PACHECO: Yes.
25 MR. KALLAL: If we prevail, then we don’t
1 have to go back and fight again over whether or not you
2 actually should have been certified for those seven months.
3 MS. PACHECO: Exactly. That’s exactly
4 right. And doctors don’t want to certify them nine months
5 down the line. A year down the line. They’ve already been
6 doing it the whole time they’ve been in hearing.
7 MR. KALLAL: And that’s the thing that
8 claimants may not realize, and we certainly realize because
9 we work closely with the medical professions, is they
10 really don’t remember anything besides their records,
11 because they see so many patients.
12 MS. PACHECO: That’s right. That’s right.
13 And it’s hard to keep track, for the doctors, for anybody.
14 I mean, even for you attorneys, you know. How do you
15 remember all that stuff?
16 MR. KALLAL: Well, usually our caseload
17 isn’t so high that we don’t forget the claimant —
18 MS. PACHECO: Like workers’ comp.
19 MR. KALLAL: — the current clients that we
21 But once you’ve been doing it 10 years — I can
22 look back in my file and I can see a name — and I never
23 thought, as a young attorney, that I wouldn’t recognize a
24 name. But now I’m just they like — they just disappear
25 after the 5th, 600th name.
1 MS. PACHECO: Yeah, they do.
2 MR. KALLAL: I mean, so — and doctors see
3 countlessly more patients than attorneys see clients or
4 probably even claims analysts see.
5 MS. PACHECO: Yes. Oh, yeah. Because they
6 got their workers’ comp claim, and they’ve got their
7 nonworkers’ comp claims. Even my own doctor sometimes
8 doesn’t remember when I was in last time unless he looks at
9 the notes.
10 MR. KALLAL: For sure.
11 We’ve got one more topic for the day, and maybe
12 we’ll have you back again to talk about some other stuff.
13 MS. PACHECO: Okay.
14 MR. KALLAL: But one of the things we — we
15 see — this seems to come and go in waves, and it’s the
16 employers that object to everything no matter what, because
17 they’ve been told that they have to — by someone somewhere
18 along the line that if they don’t fight every work comp
19 claim, they’re going to, you know, pay these higher
20 premiums. And so even completely meritorious claims are
21 routinely objected to. And so I was curious as to what is
22 the claims analyst’s role in dealing with frivolous
23 employer objections?
24 MS. PACHECO: Well, when an employer — I
25 didn’t have very many employers who objected to all their
1 claims. I don’t know if anybody had anybody — any
2 employer like that.
3 There are some employers that will question. And
4 it’s the claims analyst’s job to make it easier on them to,
5 like I said, review the claim and determine that the
6 causation in the job is what really — I mean, that — that
7 injury caused that job — or that injury, I mean. That job
8 caused that injury. Sorry. If that job caused that
10 So it’s pretty clear, when the guy’s on the — on
11 the worksite and the brick falls from the building and hits
12 his head, that that’s a good claim. You cannot question if
13 there are witnesses to an injury. And it doesn’t do the
14 employer much good, and it’s going to cost him so much more
15 in court costs and investigation costs than to just let the
16 claim follow a course.
17 To me, in my opinion, when I worked there, if you
18 fight the claim, it just seems to go longer. And if you
19 watch the claim and let it go through and let it follow its
20 course, it seems to go smoother and quicker. So if an
21 employer objects to every claim, it’s just costing him so
22 much more money. And I think when you talk money to an
23 employer, because it’s hitting his pocket, that it —
24 you’ve got to tell the employer, you know, this is — this
25 is where it is. And if we open the claim, then you’re
1 going to be fighting this outside of what we are covering.
2 So I’m going to cover this guy, but you’re going to go to
3 court. And in the long run, you could lose the claim, and
4 then you’re going to pay all — you’re paying the
5 claimant’s attorneys, you’re paying your attorneys, you
6 know. So it’s easier to explain things in detail to the
7 employer and let them know how you came to that
9 MR. KALLAL: And one thing that we’ve seen
10 that tends to help those claims either resolve, or at least
11 certainly make life less miserable for the claimant, is
12 when the Division agrees to pay all benefits pending the
13 resolution of the claim. Who gets to make that
14 determination at the Division?
15 MS. PACHECO: I believe the attorney and
16 the manager. I didn’t have very many of those, because it
17 was either I’m denying the whole claim, or we’re going to
18 settle out of court for this little bit. And sometimes
19 those can be lengthy processes. However, if the
20 communication is open with, like I said earlier, the
21 claimant and the claims analyst and you can get a manager
22 involved most of the time to pay those small claims rather
23 than go to court. Same thing with the employers, you know.
24 I just think that the claims analyst is always involved,
25 but it’s probably safer for the claims analyst to go to the
1 manager and make sure that everybody’s on the same note.
2 MR. KALLAL: Thank you very much. It’s
3 been really enlightening and enjoyable for me, and I really
4 appreciate you coming by to take the time to talk to us
6 MS. PACHECO: You’re very welcome. And I
7 can’t believe I remembered so much.
8 MR. KALLAL: Yeah. It’s fantastic.
9 Thank you very much.
10 MS. PACHECO: Thank you.
1 C E R T I F I C A T E
3 I, Kathy J. Kendrick, a Registered Professional
4 Reporter, do hereby certify that I transcribed the
5 foregoing recorded podcast proceedings to the best of my
8 Dated this 3rd day of June, 2020.
13 KATHY J. KENDRICK
Registered Professional Reporter
EPISODE 7: Bankruptcy Basics for Clients and New Attorneys CLE Summary
Time Schedule: 65 minutes
Summary of Topics Covered
Introduction of Instructor Robertson “Rob” Cohen
What are the biggest misconceptions about bankruptcy?
What kinds of debts can bankruptcy help with and what kind cannot be helped?
Can you make too much money to file bankruptcy?
What does a bankruptcy trustee do?
What are the biggest problems for debtors who hire attorneys who are not careful?
The importance of being honest in the bankruptcy process.
How does the bankruptcy process work?
When does the debtor’s life return to normal after filing?
Instructor Robertson Cohen, Esq. Bio
Founding member and managing partner of Cohen & Cohen
Chapter 7 Panel Trustee
Affiliate Professor (Business law) Metropolitan State College of Denver
National Association of Bankruptcy Trustees, Christian Legal Society, Jefferson County Bar Association
National Association of Consumer Bankruptcy Attorneys, U.S. District Court Colorado, Colorado Bar Association, Colorado Supreme Court, The Federalist Society
Governing Board of Littleton Academy Charter School—Secretary 2014 – present
Faculty of Federal Advocates – Bankruptcy Pro Bono Defense Program, 2004 – present
Christian Legal Society, 2005 – present
Board Member 1st Judicial District Bar Association 2012-2014
Awards and Recognitions
Certified Consumer Bankruptcy Specialist, American Board of Certification, 2014 (continuing)
Donald E Cordova Distinguished Service Award, Faculty of Federal Advocates, 2013
Nominated 2013 Torch Award Recipient Denver Better Business Bureau, 2013
Colorado Super Lawyers Rising Star, 2013 – 2017, Super Lawyer 2018
First Judicial District Bar Association George Holley Outstanding Young Lawyer Award, 2011
Nominated for Denver Business Journal 40 under 40, 2014 & 2016
M.B.A University of Denver Daniels College of Business 1004
J.D. University of Denver College of Law 2003
B.A. University of Wyoming Social Sciences 1999
EPISODE 8: What are common ethical mistakes lawyers make that they do not realize they are making?
Time Schedule: 60 minutes
Summary of Topics Covered
Introduction of Instructor Mark GiffordWhat are common ethical mistakes lawyers make that they do not realize they are making? What does cooperation with bar counsel during the complaint process look like?
What is the diversion program?
What is the best part of the job of bar counsel?
What is the procedural process and the burden of proof on bar counsel in the disciplinary hearing process?
The “Wyoming System” allowing bar counsel to handle ethics hotline calls
Instructor Mark W. Gifford, Esq. Bio
Mark W. Gifford is Bar Counsel for the Wyoming State Bar. He is a Wyoming native who received his Bachelor’s in accounting from the University of Wyoming in 1978 and his law degree from Stanford University in 1981. After 30 years of practice as a trial lawyer and mediator, Mark took the position of Bar Counsel on a part-time basis in 2011 and became full-time in October 2013. In addition to attorney discipline, Gifford’s responsibilities include Unauthorized Practice of Law, Fee Dispute Resolution and Client Protection Fund.
He also serves as general counsel to the Wyoming State Bar. Gifford was instrumental in getting Wyoming’s Lawyer Assistance Program launched in 2014. He is a member of the ABA Standing Committee on Professional Regulation. He has been recognized as an AV Preeminent-rated lawyer by Martindale-Hubbell Peer Review Ratings, a distinction based upon peer reviews by members of the Bar and the Judiciary.
WyoLawPod is a podcast that is fully accredited for CLE credit by the Wyoming State Bar. This episode features Mark Gifford. Bar Counsel for the Wyoming State Bar.