Pay Particular Attention To Work Comp Claims That Overlap With Other Laws

“Flexibility” when you’re involved in a claim of any kind, gives you options – and that means having several ways to deal with a problem. But flexibility can mean much more. It can also give an employer freedom of action; in addition all others involved in a claim do NOT have the same advantages that the employer has.

 

 

A Workers Comp Claim Can Overlap With Many Other Laws

 

Let’s focus on comp claims. Normally, an employer surrenders control of the handling of a comp claim to others, mostly the comp board and the carrier. The employer’s role is generally limited to being a witness or a source of a few documents, principally the first report of injury. But it sometimes happens that another claim is simultaneously in progress with the comp claim, often a negligence or unemployment claim or both. Those are just the tip of the iceberg.

 

A comp claim can overlap with negligence, unemployment, short term disability, long term disability, Social Security, discrimination, private disability, FMLA. ADA OSHA, DOT and many, many other laws. How does that help an employer faced with a difficult comp claim?

 

 

Good Chance That Answers Contradict

 

 

For starters, all of the above have some kind of an initial claim report, usually initiated by the employer. The initial report requests that one or two pages of questions be answered. The questions differ in some ways from claim to claim, but they overlap on questions involving disability and causes. The chances that the answers contradict those made on other claims rises exponentially as the veracity drops. Bad claims are rarely consistent when more than one recitation of facts is necessary.

 

The employer has great opportunities for proper handling of claims when it notifies the carrier of inconsistencies. Is this done frequently? No it is not. In fact it is the rarest of exceptions. Which is why it is so effective when it is used.

 

 

Employer Can Contain Claims With Pro-activity

 

Inconsistencies occur because claims by an employee are often months, even years, apart and most people do not check to make sure that the statements are not contradicted by earlier, or later, versions. Your correspondent defeated several claims because the allegations in the unemployment claim bore no resemblance to later statements in the comp claim. In all of those claims it was the curiosity of the comp lawyer that uncovered the existence of the unemployment claims. How many more unemployment claims were undiscovered on other comp claims? In NY, thousands per year, maybe even ten thousand per year. With proactivity by the employer those claims can be contained.

 

Understandably, the employer usually groans at a multiplicity of claims by a single employee. Instead, the employer can use them as a new claim tool, a tool that has been available all along.

 

 

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

©2015 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

 

Australian Employer Fined $75K, Contractor Injured

One Australian employer found out how expensive it can be when workplace safety is not followed all the time.

 
The Bibra Lake, Australia steel fabrication business was fined $75,000 over an incident in which a contractor was seriously injured when a crane struck a scissor-lift on which he was working.

 
Metwest Steel Pty Ltd pleaded guilty to failing to provide and maintain a safe workplace for a contractor carrying out work and, by that failure, causing serious harm to an employee of the contractor, and was fined in the Fremantle Magistrates Court recently.

 
In October 2011, an employee of Total Hoists and Cranes Pty Ltd attended Metwest Steel to carry out repairs on one of two cranes in the workshop.

 
The worker stood on the work platform of a scissor-lift in order to access the control box for the crane on which he was working. The platform was raised to about six metres and the handrail was above the bottom edge of the crossbeam on the crane.

 
At the same time, an employee of Metwest Steel used the other crane in the workshop to lift and place a steel beam on a shelf. This moving crane collided with the stationery crane on which the Total Hoists and Cranes employee was working.

 
The collision moved the crane, which then pushed the handrail of the scissor-lift and tipped it over, causing the man standing on it to fall around six meters.

 
An employee of Metwest Steel who was welding approximately four meters away was knocked down by the falling scissor-lift, but was not seriously injured.

 
The Total Hoists and Cranes employee suffered complete paraplegia.

 

Commissioner Notes Shocking Example of Safety Failure

 
WorkSafe WA Commissioner Lex McCulloch said recently the case was a shocking example of a failure to ensure that safe systems of work were in place.

 
“The court heard that anti-collision devices were fitted at a cost of little more than $2,000 after this incident,” McCulloch said.

 
“It would have been entirely practicable and not overly expensive to have had these devices fitted earlier, avoiding the tragic incident that ultimately took place and the devastating permanent injury that was caused.

 
“This case should serve as a reminder that thorough risk assessments need to be undertaken in every workplace and that safe systems of work need to be in place.

 
“It is also a reminder that anyone who is in control of a workplace is responsible for the safety and health of not only their own employees, but also workers from other companies contracted to undertake tasks in their workplace.”

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Supervisor Safety Responsibility Needs To Be In Job Description

The best workers compensation claim is the claim that never happened. It is important for management to create a have a culture to prevent claims, to create a safety program and to improve a safety program.  This top down approach is effective and leads to the prevention of accidents.  What the top down approach often misses is the importance of having the supervisors actively involved in the safety program.  The importance of safety training for the field supervisors or the floor supervisors cannot be overstated.

 

 

Safety Responsibility Needs To Be Incorporated Into Supervisor Job Descriptions

 

The safety responsibilities of the lower level management – the supervisors – need to be incorporated into their job descriptions just as much as production goals, financial goals or other performance measurements.  The safety objectives that should be a part of the job description of every supervisor should include:

 

  • Regular inspections of their work area to identify any safety issues
  • Responsibility for initiating work orders for safety related repairs
  • Responsibility for insuring all needed repairs are completed timely
  • Responsibility for identifying areas where improvements of the physical area would reduce risk
  • Knowing and complying with all OSHA requirements
  • Knowing and complying with all state safety laws
  • Enforcing compliance with all safety regulations
  • Responsibility for training all new employees on the safe completion of their work
  • Responsibility for having monthly safety meetings with the employees in her/her group
  • Responsibility for the safe completion of all work
  • Responsibility for recording all safety incidents
  • Responsibility for reporting all safety incidents to management
  • Responsibility for investigating all accidents
  • Responsibility for preventing the reoccurrence of similar accidents
  • Responsibility for reviewing with management how to improve safety

 

 

Supervisor Performance Review Should Include Safety Goals

 

The supervisor’s performance review should include how well they met their safety goals.  Management should avoid the temptation to measure safety solely by the number of injury claims reported.  The completion of regular safety inspections, the timeliness of repair orders, the compliance with OSHA and other regulations, the safety training provided to the employees and the recommendations on how to improve safety should be given equal weight with the number of injury claims reported.  By placing the emphasis on the prevention of injuries as opposed to the number of injuries, you reduce the temptation of the supervisor to underreport the minor injuries that do occur.

 

An importance safety function of the supervisor is to create a detailed accident report after each injury.  A review of the quality of the accident investigations completed by the supervisor should be a part of the supervisor’s performance review.  The supervisor’s manager should check each supervisor’s accident report to determine if the supervisor interviewed the injured employee and the co-workers/witnesses.  The object/ machinery/ equipment involved in the injury should be a part of the accident investigation with a determination if the accident was the employee’s fault or caused by a defect in the object/equipment/ machinery being used.  A recommendation by the supervisor on how to prevent a similar accident from occurring in the future should be a part of the supervisor’s report.

 

 

Safety Reporting Is More Than Completing OSHA Forms

 

Safety reporting is more than completing OSHA forms.  It should entail a review of injury accidents by categories determined by management.  Sample categories could include employee error, equipment/machinery malfunction and unforeseen.  The purpose should be to identify areas where further safety improvements can be made.

 

The review of the safety work orders for repairs or improvements should also be included in the supervisor’s performance review.  The supervisor’s manager should verify the supervisor is identifying and seeking to correct legitimate safety hazards. The accuracy and the effectiveness of the safety work orders will impact the overall outcome of the safety program.

 

By integrating safety into the job performance of the supervisors, the compliance level with all safety requirements will improve and the number of workers’ compensation claims will be reduced.

 

 

Author Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2015 Amaxx LLC. All rights reserved under International Copyright Law.

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

Washington State Woman Cooked Up Comp Fraud

For one Washington State woman, she ultimately got burnt when trying to get away with workers compensation fraud.

 
The Spanaway woman has been charged with stealing more than $56,000 in injured worker benefits while operating a barbecue eatery.

 

Susan Kathleen Ruiz claimed she was too disabled from an on-the-job injury to work, yet managed Roadside BBQ in the Parkland-Spanaway area of Pierce County for more than a year and a half, according to court documents filed by the Washington Attorney General.

 

Now Ruiz, 51, faces a felony charge of first-degree theft (she was arraigned in February). The charge alleges the crime was aggravated because it occurred over a long time with multiple incidents.

 

The charge stems from a Department of Labor & Industries (L&I) undercover investigation that found Ruiz fraudulently obtained more than $56,000 in wage-replacement payments from the state.

 

Ruiz began receiving workers comp benefits in September 2007, when she fell off an extension ladder while working as a painter. L&I approved the payments based on certified statements from Ruiz and her physician that she couldn’t work because of back, neck and other injuries caused by the workplace accident.

 
Documents Noted Fraud

 

However, an 18-month L&I investigation unearthed a paper trail of bank and lease records, health department inspections, an insurance policy and other documents showing Ruiz owned and carried out day-to-day operations of Roadside BBQ from at least May 2012 to November 2013.

 

In addition, undercover investigators witnessed Ruiz directing employees and overseeing business at the restaurant numerous times in 2013, court papers said.

 

Two of Ruiz’s employees told L&I that a man listed as the restaurant owner on a business license was actually her accountant, but that Ruiz tried to make it look like he was the owner. When Ruiz sold the establishment in late 2013, the buyer told L&I that he purchased it directly from Ruiz.

 

L&I launched the investigation based on a worker tip.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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ADA Reasonable Accommodation And Workers Comp Questions Answered

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to Reasonable Accommodation given by Aaron Konopasky, Senior Attorney Advisor, US Equal Employment Opportunity Commission, and Jennifer Christian, MD, President, Webility Corporation.

 

 

Is a reasonable accommodation having someone else do part of the worker’s job?  For example, all of the lifting? 

 

If lifting is an essential function of the job (central to what the person was hired to do), then, generally, no.  Reasonable accommodations enable the person to do the essential functions of the job, not eliminate them.

 

A few clarifications, though:

 

It’s possible that someone in a certain position is sometimes expected to lift something, but it’s not really what they were hired to do.  We call that a “marginal” function.  For example, an accountant might occasionally have to lift a heavy box of records above shoulder height to put it on a high shelf in a storage room.  Because she’s an accountant, her job really isn’t lifting.

 

In a case like that, having someone else help with the lifting could be a reasonable accommodation, especially if it’s for the short term.   But sometimes it’s possible to accomplish the same job tasks without needing anyone else’s help — and that might be even better.  For example, if the person could use a hand truck/trolley to move the records, and they could be stored on a lower shelf, the employer may need to make that reasonable accommodation.

 

If the job involves rotations or assignments that sometimes require lifting and sometimes do not, assignment to a non-lifting rotation/assignment may be a reasonable accommodation that the employer might have to provide, unless doing so would impose undue hardship.

 

 

Can you address how Collective Bargaining Agreements (CBAs) affect the interactive process for accommodation?

 

This is a complicated topic, and I can’t cover it all here.  But two basic points are: (1) the ADA prohibits employers from entering into CBAs that discriminate on the basis of disability, and (2) employers are required to comply with the ADA regardless of whether a CBA exists.

 

In the reasonable accommodation context, many times it will be possible to provide a reasonable accommodation without violating the terms of a CBA.  If an accommodation is required that would violate the terms of a CBA, the employer and union may need to negotiate a variance.  If a CBA is raising complicated ADA issues for you, you may wish to consult a private attorney.

 

 

Can Ergonomic Worksite Analysis serve as part of an Interactive Process since it engages the employee in identifying alternative methods, tools, and techniques to perform essential functions? The report can serve as a foundation for employees and employer to discuss reasonable accommodations.  What are your thoughts?

 

That sounds like it would be a good idea, as long as the person doing the analysis knows to consider alternatives to the normal way in which job functions are performed.  This could include alternatives that someone who specializes in ergonomic analysis is not used to considering, like telework.

 

 

Is Reasonable Accommodation  “all or nothing”?  If an employer can only provide 4 hours a day, 20 hours a week, and such an accommodation is offered, yet turned down by the employee, is that now a situation for separation?

 

If a reasonable accommodation would enable the person to do the essential functions of the job, and would be consistent with the person’s medical needs (would not cause pain, reinjury, etc.), then the employer can require the individual to do the work with the accommodation.  If the individual simply refuses to do work that he or she is perfectly able to do, then he/she could be terminated, just like anyone else who decides not to do their assigned work.

 

I would be careful about describing reasonable accommodation as “all or nothing” though.  If an employer offers someone a reasonable accommodation that turns out not to be effective (for example because the person is still experiencing too much pain), then the employer and employee should go back to the drawing board to determine whether a different solution is possible.  Also, the exact accommodation needed could change over time.

 

I should also point out: allowing someone to do less work (e.g., 4 days instead of 5) for the same amount of pay is not an ADA reasonable accommodation, meaning that the employer could not be legally required provide it.  (The employer is perfectly free to provide it, though.*) The employer and employee should explore whether something other than reduced productivity would help.

 

Also, if an on-the-job accommodation isn’t possible (and if the employee does not have any paid leave available to use at their discretion), the employer might be required to provide extra unpaid leave as a reasonable accommodation instead of termination, if it would allow the person to eventually return to work, and if providing the unpaid leave wouldn’t cause significant difficulty or expense for the employer.  If the employee will never be able to return to the original job, then the employer should consider reassignment to another job as a reasonable accommodation, if one is available and the person is qualified.  If all of that fails, then the ADA doesn’t prevent termination.

 

*[Publishers Note: The biggest distinction between an ADA Reasonable Accommodation and a “light duty” workers comp best practice is the expected output of the employee.  The ADA requires essential functions of the job to be performed.  Light duty typically reduces or modifies essential functions, but is a best practice that promotes faster recovery, lower medical costs, and eliminates indemnity costs.  Light duty is generally not required by workers’ compensation law.]

 

 

How does the identification of light duty jobs in general factor into ADA’s interpretation of reasonable accommodations?

 

It’s my impression that “light duty” usually means that the employee is not being required to do his or her regular job.  Perhaps an essential function is eliminated, or the person is doing something different altogether.  If that’s what you mean by “light duty,” then light duty doesn’t have much to do with the ADA.  The ADA can never require an employer to pay people full wages while they are not doing their regular jobs or to keep people employed who are not expected to regain the ability to perform the essential functions of the position for which they were hired (with or without reasonable accommodation), which includes a reasonable timeframe.

 

The ADA doesn’t prevent employers from assigning people to light duty positions.*

 

*[Publishers Note:  We continue to recommend the use of transitional work assignments during recovery as a best practice.  Transitional work can EITHER take the form of a reasonable accommodation or the more traditional “light duty.”  The biggest distinction is the expected output of the employee.  The ADA requires all essential functions of the job to be performed.  Light duty typically reduces or modifies essential functions or productivity expectations.  Either form of transitional work promotes faster recovery, lowers medical costs, and eliminates indemnity costs.  Light duty is generally not required by workers’ compensation law.]

 

 

How about an objective, validated, functional Fit for Duty test that addresses job-specific tasks that the worker will need to show they can do these safely on the job before returning to work?  If not able to do all tasks safely, a modified RTW can be coordinated with both employer and worker?

 

Most existing methods of evaluating fitness for duty / functional ability do not consider reasonable accommodations.   However, functional testing can reveal areas of difficulty where a discussion about reasonable accommodation may be required.  So, for example, if a person has a disability that affects manual dexterity, a job-specific functional ability test would reveal that she is unable to keyboard well enough to perform her job – when using the keyboard that is now at her workstation.  This should kick off a search for an alternative solution – a reasonable accommodation.  Possibilities include a different or voice recognition software for example.    Another example: if a workplace uses a siren to warn employees workers of danger, someone who is deaf might nevertheless be fit for duty if flashing lights could be installed as a reasonable accommodation (unless installing the lights would impose undue hardship for some reason).

 

 

What about mental health issues and issues such as Narcolepsy– when the medical provider gives the employee a blank slate such as tardiness to work and or the possibility of mistakes at work (performance issues related to the disability).

 

Accepting poor performance, tardiness, reduced productivity, etc. are not reasonable accommodations.  An employee could never use the ADA to require the employer to accept poor work.  Note, however, that an employer cannot treat an employee with a disability more harshly than other employees who are having the same problems with performance. An employer couldn’t terminate an employee with a disability for tardiness, for example, if an employee without a disability would not be terminated for the same level of tardiness.

 

An employer could be required to provide a reasonable accommodation that would prevent performance issues, however.  For example, it’s possible that a person could ask for permission to arrive an hour late and leave an hour late as a reasonable accommodation, because of the side effects of medication, for example (notice that the overall amount of work is the same).  Or the supervisor might be required to provide detailed written instructions for assignments, so that the person doesn’t forget or become confused.

 

Really, the doctor should not be deciding whether the employee is allowed to arrive late or to make mistakes.  The doctor should be describing the mental and physical effects of the medical condition.  The employer and employee are the ones who are supposed to figure out how those restrictions should affect work.

 

 

Is it really considered reasonable to provide extra paid breaks to associates? Wouldn’t this cause issues with how other associates might be treated?

 

No, extra paid breaks could not be required if it means less total time spent on work throughout the course of the day.  A person could ask for his break to be at a different time than usual, however, or for it to be split up into small chunks, or to work a longer day in order to allow time for more breaks.

 

Setting aside the issue of reduced productivity, though, from the point of enforcement, it is generally not relevant how coworkers perceive an accommodation.  A person who needs a special chair because of a back problem, for example, might be entitled to get it even if coworkers would become jealous.

 

It is up to the employer to manage the impact of this on the workplace by signaling to all employees that the process is being managed thoughtfully, firmly and fairly, so people get what they legitimately need, not just what they demand.  The employer is not allowed to explain that the reason for the special chair is a disability (breach of confidentiality).  However, it is appropriate to make sure every employee remains aware of the company’s commitment to upholding the ADA and helping employees who have or develop disabilities to stay at work and keep their jobs.

 

 

Let’s say an employee is given sedentary duty work restrictions by a doctor, and the employer allows the employee to work with those restrictions.  But after a period of time (a few months), the employer can no longer afford to allow the employee to work sedentary duty.  Does the employer still have a duty to provide a reasonable accommodation under the ADA?  Is the employer now required to find a sedentary job for the employee in another department if there is no sedentary work in the employee’s current department?

 

I assume you are thinking of a situation in which the person is not performing his/her usual job.  The ADA never requires an employer to keep paying an employee who is not doing the job for which he/her was hired, no matter how long this kind of substitution has already been happening.  The ADA couldn’t even require it at the beginning of the situation you describe.  That’s not considered an ADA “reasonable accommodation.”

 

The employer could be required to provide a reasonable accommodation in a situation like that, if there is one that would enable the person to do his or her regular job.  (Could the person accomplish what his usual job requires him to accomplish while sedentary, for example, by allowing him to work from home, or allowing him to use a wheelchair, or… ?)

 

If an on-the-job accommodation isn’t possible (and if the employee does not have any paid leave available for use at his/her discretion), the employer might be required to provide extra unpaid leave as a reasonable accommodation, if it would allow the person to eventually return to work, and if providing the leave wouldn’t cause significant difficulty or expense.

 

If the employee will never be able to return to the original job, then, yes, the employer might be required to reassign the individual to another job that is consistent with the limitations.  But the other job must actually exist and be currently vacant, and the individual must be qualified for it.

 

[Publishers Note: In transitional duty as a workers comp best practice, it is common for employees to be assigned “light duty” in which essential job functions are modified or eliminated.  When that is the case, the light duty assignment should not last longer than 90 days without medical review to determine whether timely recovery of ability to perform all essential functions is realistic.  However, during a prolonged transitional work period, the employer needs to follow the ADA requirements for reasonable accommodation and reassignment, including additional unpaid leave.  If the company has done so and the employee cannot resume working after the 90 days, the employee can be considered for termination.]

 

 

In a reassigned position, does the employee have to qualify for the position or do we have to train them as a result of meeting that accommodation?

 

For reassignment to be required under the ADA, the person must already be qualified for the position.   There is nothing to prohibit the employer from providing the training as a good faith gesture on a case by case basis.

 

 

Visit these articles for more information on the ADA and workers compensation:

Further implications of the ADA on managing workers with health issues

ADA Questions on Temporary and Permanent Restrictions

 

 

 

Author:

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

Author

Jennifer Christian, MD, MPH, FACOEM is a thought leader and advocate for improving medical outcomes and preventing needless work disability in workers’ compensation and disability benefits systems.  She is board-certified in occupational medicine and earned both her medical and public health degrees from the University of Washington in Seattle.  She chairs the Work Fitness & Disability Section of the American College of Occupational & Environmental Medicine (ACOEM).  While practicing medicine in Alaska, she was chosen as Physician of the Year.

 

She is President of Webility Corporation, a management consulting and training company.  Most recently, she developed Webility’s newest offering – the non-medical Maze-Masters program which provides educational and life coaching services directly to individuals who have gotten “lost in the system” to help them get their lives back on track.

 

Editor:

Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

New Jersey Employer Fined, Receives 14 Safety Violations

One New Jersey employer recently felt the wrath of the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA).

 
An investigation was initiated in October of 2014, in response to a complaint, leading to OSHA citing Brantley Brothers Moving & Storage Co. Inc. for 14 serious violations that included:

 

  • Safety and health precautions — such as using a regulated area and personal protective equipment, and conducting exposure monitoring — were not in place for workers removing pipes and pipe insulation containing asbestos;
  • Asbestos was not identified and labeled in the storage warehouse;
  • Employees were not trained on the proper handling of asbestos and related health hazards; and
  • Workers were exposed to fire hazards due to improperly maintained exit routes.

 
“In 2015, nobody should be surprised to learn that asbestos exposure is dangerous,” said Kris Hoffman, director of OSHA’s Parsippany Area Office. “Brantley Brothers required its employees to remove dry asbestos from piping without any personal protection equipment. Asbestos exposure can cause cancer and asbestos is, which is a serious lung disease, so having untrained and unprotected workers conduct such work, is both irresponsible and totally unacceptable.”

 
The company was given 15 business days from receipt of its citations and proposed penalties to comply, request a conference with OSHA’s area director, or contest the findings before the independent Occupational Safety & Health Review Commission.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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North Carolina Business Owner Builds Fraud Case

For one Tar Heel resident, the gig is up.

 
North Carolina Insurance Commissioner Wayne Goodwin recently announced the arrest of James Quinn, 52, of Hampstead; he is charged with one count of obtaining property by false pretense.

 
Department of Insurance criminal investigators allege that Quinn manufactured fraudulent certificates of workers compensation and liability insurance for his business, Quinn’s Equipment Company, in order to obtain work as a contractor for hog farm operations.

 
Defendant Allegedly Stole for Number of Years

 
Investigators accuse Quinn of using the fraudulent insurance certificates from at least 2007 to 2014 and earning more than $820,000 for work for which he would not have been hired had the employer known he did not have valid insurance coverage.

 
Quinn was arrested on March 5 in Pender County and placed under a $3,500 bond.

 
Since Insurance Commissioner Wayne Goodwin took office in 2009, criminal investigators have made more than 1,000 arrests, resulting in more than 500 criminal convictions with more than 200 cases currently pending court. These efforts have delivered more than $61 million in restitution and recoveries for victims.

 
An estimated 10 cents of every dollar paid in premiums goes toward the payment of fraudulent claims.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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Deny Work Comp Claims From Disallowed Unemployment

Can a worker who files a claim for unemployment and loses because of a justifiable dismissal then file for workers comp? Yes. And it happens all the time. The danger for employers is that the existence of the unemployment claim is not automatically known to the carrier or the New York Workers Comp board, causing many comp claims that could be defeated to be allowed at great expense, ultimately, to the employer.

 

 

The Act Of Filing An Unemployment Claim Contradicts Workers Compensation

 

Why would an unemployment claim lead to defeat of a later comp claim? This is due to the fact that many workers file a comp claim as an afterthought only after they have lost an unemployment claim. However, in filing the unemployment claim the worker alleges that he/she was working without problems and was unjustifiably dismissed, or was harassed into leaving. However, in the later comp claim, the worker alleges that lost time was solely due to an injury (and fails to mention the unemployment claim).

 

Such situations are far from rare, but most go unnoticed because the Board and the carrier are not alerted to the existence of a prior unemployment claim. An employer is the best source of information but many, if not most, employers think that such information is automatically available to the Board and the carrier. The power of computers is probably responsible for that misconception.

 

 

Employers Should Notify Carrier & Workers Comp Board Of Unemployment Claim

 

If a prior unemployment was disallowed prior to the comp claim, the employer has a simple method of preventing a claim disaster. Simply notify the carrier, with a copy to the Board, of the existence of the disallowed unemployment claim. Attach a copy of the decision disallowing the claim, plus a copy of the claim for unemployment. Send copies of the correspondence to the worker’s comp lawyer, if he has one, or to the worker, if not.

 

If more detailed information is required, a copy of the unemployment hearing transcript can be obtained.

 

Usually, that will be sufficient to defeat or limit an unwarranted claim for compensation. Why? Because the inconsistencies between the unemployment and workers compensation claims, with conflicting facts and histories, damage credibility, at the very least, or prove filing of a false claim – which is now taken very seriously at the Board since the passage of laws in the 1990s making false representations a felony.

 

 

Employers Have The Power To Significantly Enhance Their Success

 

Contrary to popular belief, lawyers do not willingly take on obviously dubious matters, which is why copying everyone as soon as possible with the conflicting documents is so effective. Employers have the power to enhance the chance of success by an order of magnitude – but only if they take the trouble to communicate.

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

©2015 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

MODIFIED DUTY CALCULATOR:   http://reduceyourworkerscomp.com/transitional-duty-cost-calculators/

WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

 

Pennsylvania Man Sentenced; Fraud Involved Nearly $25K

The U.S. Attorney’s Office for the Middle District of Pennsylvania announced recently that Robert M. Fowler, 61, of York Springs, Pennsylvania, was sentenced for workers compensation fraud involving $24,934.68 of benefits he was not entitled to receive.

 
U.S. District Court Judge William W. Caldwell sentenced Fowler to three months’ imprisonment to be followed by two years’ supervised release and ordered him to pay $23,792.00 in restitution. Fowler was ordered to surrender to the Bureau of Prisons by March 25, 2015.

 
According to U.S. Attorney Peter Smith, Fowler sustained an on-the-job injury in 1999 while working at the Defense Industrial Plant Equipment Center in Mechanicsburg, Pennsylvania, and began receiving federal workers compensation benefits from the Office of Workers Compensation Programs (OWCP) shortly thereafter.

 

Recipients of these benefits are required to submit forms to OWCP on a periodic basis to insure they are still eligible to receive the benefits.

 

Defendant Admitted Lying on Several Forms

 
Fowler previously admitted that he lied on several forms he submitted to OWCP because he falsely claimed he was not incarcerated during the prior fifteen months for a felony and was residing with his wife.

 
In fact, Fowler was in the Adams County Jail between September 2012 and July 2013 and had not resided with his wife between October 2010 and March 2014. As a result of the false statements, OWCP paid Fowler $24,934.18 which he was not entitled to receive.

 
Fowler was charged in a criminal Information filed in the U.S. District Court in July 2014.

 

 

 

Author Kori Shafer-Stack, Editor, Amaxx Risk Solutions, Inc. is an expert in post-injury response procedures and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. www.reduceyourworkerscomp.com.  Contact: kstack@reduceyourworkerscomp.com.

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

WORK COMP CALCULATOR:   http://www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:   http://www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP:  http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

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ADA Questions on Temporary and Permanent Restrictions

We had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions  on Temporary and Permanent restrictions given by:

 

Aaron Konopasky, Senior Attorney Advisor, Equal Employment Opportunity Commission

Jennifer Christen, MD, President, Webility Corporation

Michael Stack, CPA / Risk Consultant, Amaxx Risk Solutions

 

 

 

If you allow 90 days of light duty and they do not seem to be increasing or progressing in treatment – can you place them back out of work until Full Duty (FD) or Maximum Medical Improvement (MMI)? 

 

From a workers compensation management perspective, placing them back out of work at this point is not the recommended course of action as it is likely to spiral this employee and claim downward.  You should be in discussions with the treating physician as to why they are not making progress.  A nurse case manager might be helpful to better understand and assist the recovery.

 

From a medical perspective, 90 days is a sensible milestone.  Most injuries have healed and are as good as they are going to get by that time — because most damaged tissue has repaired itself within 6 to 8 weeks.  Those that haven’t may be turning into chronic conditions.  However, there are some exceptions.  The most obvious ones are workers who had conservative treatment for 6 or 8 weeks and then had surgery.  An operation is like a re-injury and it resets the biological clock.  One good way to identify the biological timeframe of recovery you are dealing with is to ask someone to look up the diagnosis in a resource like MDGuidelines or ODG to see what the typical durations of disability are for the worker’s particular condition.  This will help you see whether it really is time to ask the doctor for more information.

 

There really are only three possibilities at this time for a worker’s comp case:

 

  1. The person has a good prognosis for full recovery back to baseline levels of function, but it’s happening more slowly than you hoped.
    1. You either need to wait for them to recover or find a reasonable accommodation that will let them do it, or pay them to sit home.
  2. The person is realistically never going to get back to baseline so it is time to look for a reasonable accommodation.
    1. If you and the worker can’t identify one, consider getting an expert in accommodations involved because they may see options you can’t. If there is no way to accommodate, consider your options and take the appropriate action.  Don’t leave things hanging.  If the person’s career at your company is over, don’t leave them hanging.  Talk to them and express a desire to help them get on track towards a more realistic future outside your company.
  3. For some reason, it is still unclear what the eventual extent of functional recovery is going to be. If so, you need to talk to someone with expertise in these matters such as a nurse case manager or the treating physician in order to make an informed choice how to handle the situation.

 

For your responsibility under the ADA, does “light duty” mean reduced productivity requirements or elimination of essential functions?  If so, then the ADA does not require the employer to continue the light duty assignment.  However, before placing the individual back on leave, you must consider whether a reasonable accommodation would allow the person to return to full duty without imposing undue hardship on the employer.  Would an assistive device help?  An alternative schedule?

 

If the person is unable to return to full duty safely at this time, then they may be placed back out of work (although the employer could continue the light duty assignment if it wanted to, if it isn’t hurting the person or interfering with recovery).  When the person should be brought back to full duty does not depend on Full Duty or Maximum Medical Improvement – it depends on when the person is able to go back to full duty with a reasonable accommodation (if one is necessary).  So, if the person recovers enough that he or she can do the essential functions of the job with an alternative schedule, preferential shift assignment, assistive device, etc., then he/she can be place back to full time regardless whether he/she has reached MMI.

 

If the person does reach MMI and still can’t return to full duty, even with a reasonable accommodation, then the employer must consider reassignment to a vacant position, if one is available, as a reasonable accommodation.  If there is no work that the person can do, even with a reasonable accommodation, then he/she may be terminated.

 

 

 

After how long would temporary accommodations provide presumptive evidence that permanent accommodations are reasonable?

 

By “accommodations,” do you mean the type of reasonable accommodation required by the ADA (for example, an alternative schedule, assistive device, telework, etc.), or do you mean something like light duty, with reduced productivity or elimination of essential functions?

 

If you mean an ADA accommodation, then there is no reason to presume one way or the other whether the accommodation will be permanent.  You must provide the accommodation for as long as it’s needed, unless doing so becomes an undue hardship (causes significant difficulty or expense).  This does not mean that you must ever create a new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

If you mean light duty or some other form of permission not to perform essential job functions, then the ADA doesn’t ever prevent you from taking it away.  It’s possible that other laws, like WC laws, would have something to say about this though.

 

In general, workers’ compensation best practice dictates that transitional or light duty should last no more than 90 days.  This, however, needs to be a flexible policy since some conditions do have natural healing times longer than that, so allowing an employee a longer time to recover might be considered a reasonable accommodation under the ADA.

 

 

 

If I have provided 90 days of accommodation, can that not be determined as an accommodation of a perceived disability, thus becoming reasonable on a permanent basis

 

By “accommodations,” do you mean the type of reasonable accommodation required by the ADA (for example, an alternative schedule, assistive device, telework, etc.), or do you mean something like light duty, with reduced productivity or elimination of essential functions?

 

If you mean an ADA accommodation, then there is no reason to presume one way or the other whether the accommodation will be permanent.  You must provide the accommodation for as long as it’s needed, unless doing so becomes an undue hardship (causes significant difficulty or expense).  This does not mean that you must ever create new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

Employees have a right to AN accommodation but not to a PARTICULAR one.  Since circumstances and technologies can change over time, it would be illogical to say that the employer can’t ever change how a disability is being accommodated.

 

 

 

In Question 8 on your slides (Can the employer offer an employee an assignment at a different location such as a different division of the same company or at a charitable organization, if there are no suitable jobs at the original location?), are you talking about a permanent offer?

 

The question was referring to a temporary assignment, but there are some situations in which permanent reassignment may be required under the ADA.

 

If the individual is temporarily unable to return to full duty, even with an ADA reasonable accommodation (for example, an alternative schedule, assistive device, telework, etc.), then the ADA allows, but does not require, the employer to assign the person alternative duties that the individual can perform (including work at a local charity).  As soon as the person is able to return to full duty at the original position, with a reasonable accommodation if one is necessary, then they must be returned to the original position.  If the person will never be able to return to full time duty, even with a reasonable accommodation, then the employer should consider permanent reassignment as the “reasonable accommodation of last resort.”  For reassignment to be required, the employer must have a vacant position available that the individual is qualified to perform.  The ADA could never require an employer to permanently reassign someone to work for another business (e.g., a charity) at the employer’s expense.

 

 

 

What do we do as an employer when we are waiting for an IME report to come in? Do we use the treating Dr’s restrictions for permanent accommodation? What if the IME comes in and restrictions are completely different?

 

 

You are describing a situation in which the employer has been given limitations.  The employer should engage in the interactive process with the employee to determine whether an ADA reasonable accommodation (for example, an alternative schedule, assistive device, telework, etc.) would allow the employee to do the essential functions of the job without causing pain, re-injury, etc., and without imposing undue hardship on the employer.  The employer can ask follow-up questions of the treating doctor and the employee if it’s not clear whether return to full duty is possible.  If a reasonable accommodation would allow the person to return, the person should be given the accommodation and returned to full-time duty.  The employer would need to provide the accommodation for as long as it’s needed and does not impose undue hardship – there is no need to decide whether it will be permanent or temporary.

 

If the IME report comes in, the employer can reassess the need to provide an ADA accommodation, and if so which one, at that time.  Again, engage in the interactive process with the doctors and the employee to figure out what the person can do with a reasonable accommodation.  If there is a disagreement between the doctors or between the employee and the doctors, the employer will have to somehow decide who to believe.  The employer could ask for further clarifying documentation to try to re solve the conflict.

 

 

 

With regards to temporary restrictions and the recommended 90 day limit, is there a risk to allowing transitional duty too long and thereby creating a permanent position inadvertently?

 

The recommended 90-day limit referred to some form of light duty or transitional work that allows the person to work at lowered productivity or that eliminates essential functions of the job.  The ADA says nothing one way or the other about whether or how long this type of assignment is given (although, other laws might have something to say about that).

 

But be careful not to transfer the automatic 90-day limit over to ADA-required reasonable accommodations.  An employer is required to provide ADA accommodations (for example, an alternative schedule, assistive device, telework, etc.) for as long as they are needed, unless doing so causes undue hardship (significant difficulty or expense).  This does not mean that you must ever create new position, no matter how long the ADA accommodation is provided – ADA accommodations allow the person to perform the essential functions of the original position (but in a different way than usual – with an alternative schedule, adaptive equipment, etc.).

 

Author

Aaron Konopasky is a Senior Attorney Advisor in the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission (EEOC) headquarters in Washington, D.C.  He assists the Commission in interpreting and applying the statutes it enforces, and participates in drafting regulations, policy guidance, and other publications.

 

Dr. Konopasky joined EEOC after receiving his J.D. from Stanford Law School.  Prior to law school, he received his Ph.D. in philosophy from Princeton University, and served as an adjunct professor of philosophy at Rutgers University, Tulane University, and the University of New Orleans.

 

Author

Jennifer Christian, MD, MPH, FACOEM is a thought leader and advocate for improving medical outcomes and preventing needless work disability in workers’ compensation and disability benefits systems.  She is board-certified in occupational medicine and earned both her medical and public health degrees from the University of Washington in Seattle.  She chairs the Work Fitness & Disability Section of the American College of Occupational & Environmental Medicine (ACOEM).  While practicing medicine in Alaska, she was chosen as Physician of the Year.

 

She is President of Webility Corporation, a management consulting and training company.  Most recently, she developed Webility’s newest offering – the non-medical Maze-Masters program which provides educational and life coaching services directly to individuals who have gotten “lost in the system” to help them get their lives back on track.

 

Author:

Michael B. Stack, CPA, Principal, Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

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