When making cutbacks, employers have to plan for any number of contingencies says noted employment law authority of Wilmington, Delaware Attorney Margaret M. DiBianca. One such contingency that often goes under the radar is the possibility of fraudulent workers' compensation claims. After counsel has given its stamp of approval to the list of employees selected for layoff, employers are best advised to turn next to the ways they can protect themselves from a potential increase in workers' comp claims. Here are three ways to protect your business from abusive workers' comp claims relating to layoffs: 1-Use Exit Interviews to Document the Absence of Injury Conduct an exit interview with each employee who is subject to layoff. Ask the employee to complete an exit questionnaire, which should include a question about whether the employee has suffered a workplace injury and, if so, whether the injury has been reported. Also include a question about the overall safety of the facility and the specific safety of their work environment. Even if that employee never brings a claim, the affirmative statement by many employees attesting to the safety of the workplace can serve as important evidence in any fraudulent workplace claim. Always have the employee sign and date the questionnaire form. 2-Be Kind Kindness goes a long way in every facet of the employment relationship. And it becomes positively crucial when there are cutbacks and layoffs. By shooting straight from the hip when it comes to the reasons for the reduction in staff, employers are much more likely to gain the support of workers rather than get gunned down by a negative and hostile workforce. Employee-assistance and outplacement programs are two common ways that employers can offer their help to employees after a layoff. The bottom line is that employees are less likely to file a fraudulent claim if they believe their employer sincerely cares about their welfare. 3-Consider Offering a Severance Package Many employers are surprised to learn that a "severance package" need not provide for payment of several months of salary and health care. A severance agreement is far more simple. The company agrees to pay the employee and, in return, the employee waives all claims he may have against the employer. This is your best protection against fraudulent workers' comp claims-but only if it is a valid and enforceable contract. To make sure you get what you expect, first consult with legal counsel and have them draft a solid severance agreement for your future use. Many thanks to Guest Contributor, employment law authority, Attorney Margaret DiBianca of Young, Conaway, Stargatt & Taylor, LLP. The firm takes a proactive approach to counseling its clients by trying to prevent problems before they occur during workplace issues such as hiring, firing, promotions and layoffs. Attorney DiBianca can be reached at mdibianca@ycst.com or by phone 302-571-5008. Read more tips at: http://delawareemploymentlawblog.com Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Workers' Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact IInfo@WorkersCompKit.com
Robert Elliott discusses How To Assess Workers Compensation Costs. There are Five Considerations … A solid workers' compensation cost control program requires an employer to first identify the key cost drivers; i.e, those company-specific factors causing workers to stay out of work too long. Many companies take a hit or miss approach resulting in misidentifying the cause of their workers' comp costs. They start by looking at what their vendors are doing, rather than at their own internal company practices. Employers need to follow a systematic method to diagnose the key real-cost drivers within the company, based on a best practice approach to post-loss (not pre-loss) cost containment. Consider these five items before writing your assessment: 1: What can a risk manager and/or senior management learn from an assessment? 2: What methods can be used to assess a company's workers' compensation process? 3: What areas should be reviewed? 4: Who should do the assessment and what are the benefits of each? 5: What should a company do AFTER the assessment – what is the next step in reducing workers' compensation costs? Some companies wait until they are in serious trouble before taking action. They think of workers' compensation as a cost of doing business and do not realize there is anything they can do to control the costs or they wait until they have the perfect system in place before beginning. Often the process of doing the assessment is the start of the process of change. Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Workers' Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
When improving your workers' compensation programs, it's important to prioritize the recommendations your consultant provides. Start with an Implementation Timetable (click on Action Plan to enlarge). Put recommendations, dates for completion, person responsible for each recommendation. In Workers Comp Kit, here is how we prioritize recommendations. Modules are broken down by Critical, Needs Improvement, and Good indicating which recommendations need to be done first. Remember, in most cases ALL of the recommendations DO need to be completed; just because you are doing well, don't ignore the modules you are doing the best in because those give you the chance to become best-in-class. But start with recommendations according to the following categories: 1. Critical Modules should be done first. 2. Recommendation you can do at no cost. 3. Recommendations that can be done quickly and easily. 
Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Workers' Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
As a productive member of your workforce, employees must participate in your Workers' Compensation Claims Management Program. Here are nine things you might want to require: 1. Accidents must be reported immediately after an injury. 2. Injured employees must bring your injury treatment form to the doctor who treats them, and must get this from updated at intervals you request (e.g. every two weeks). 3. Have their doctor fax this form to the workplace within 24 hours of each appointment. 4. They must attend weekly status meetings at the workplace (unless they are bedridden) until they are back to work in their original job at full capacity. If they are bed-ridden a nurse case manager can make a home visit, if approved by your legal counsel. 5. Be available for medical appointments and company meetings during normal business hours. 6. Provide updates about their medical condition. 7. Participate in the transitional duty program as required by policy. 8. Comply with all program policies. 9. Sign an acknowledgement form stating they have been informed of and understand all requirements. Provide them with an Employee Brochure explaining these requirements. Learn about all FORMS available in Workers' Comp Kit at www.ReduceYourWorkersComp.com WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php WC 101 www.ReduceYourWorkersComp.com/workers_comp.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Attorney Brad Bleakney a leading authority on workers compensation in Illinois, offers several suggestions on how to control unmeritorious workers comp claims that may be precipated during a layoff.
1. Announce the layoff at the latest time possible as allowed under the law to prevent being set up with “exit accidents.”
2. Have laid off employees sign a short statement or release at the time of layoff (usually when they pickup their accrued vacation pay checks) indicating they waive pending or potential claims against the employer.
3. Have employees who are laid off check off and/or initial a statement (or check box) that they have had no unreported work accidents in the past 6-12 months. This provides a strong defense that they did not have any unreported accidents at the time of layoff.
In Illinois, that release can not be effective against a WC claim but it does serve to substantiate the defense. No document portending to settle out a WC case is binding in IL except upon approval with the Illinois Commission per Section 23 of the Act and per a recent case Maxit.
In Maxit, the company was forced to pay twice because they never obtained an approved $1.00 WC settlement contract waiving the WC rights at the time of a general release in the employer’s uninsured motorist claim that settled for $800,000. As a result, the employer later paid an extra $200,000 in the open WC claim because the original release was never approved by the Commission although the employer argued that they thought they were covered by the general release. I suggest making sure the releases were mutually contingent upon approval of the settlement by the Commission.
Brad Bleakney of Bleakney & Troiani in Chicago, IL practices in the areas of work-related injury claims third party litigation for accidental work injuries. He has a background in industry where he helped a Fortune 500 company reduce their workers’ compensation losses significantly. Brad can be reached at: Brad Bleakney, Bleakney & Troiani, 1 North Franklin (2625) Chicago, IL 60606 312-541-0045 or fax 312-541-0041 info@WorkComp-Chicago.com
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Layoffs are happening all around us, and can greatly impact your workers’ compensation experience. My topic focuses on discouraging a workers comp catastrophe during a reduction in force.
Here are some things you can do to prepare for layoffs. In addition to my suggestions, over the next few days, Attorneys Ted Ronca (NY), Brad Bleakney (IL) and several other attorneys will offer suggestions on ways to reduce exposure to workers’ comp claims during layoffs.
1. Notify your broker and claims administrator. Make a plan, which will be different depending on the laws in your state. Include the human resources department and legal counsel in this planning session.
2. Try to place any workers currently out of work on TTD (temporary total disability benefits) back to work before their positions are eliminated. Once these workers do not have any work to go back to, it can be a long time before you can show they are capable of working, so try to get as many back to work prior to the layoff as possible.
3. Limit severance payments to those employees who actively at work. This may discourage filing workers’ comp claims without merit. This may make the lure of getting a quick workers’ comp settlement less attractive because that is a more tenuous source of income than unemployment benefits.
4. Eliminate disincentives to collect unemployment and workers’ compensation benefits. In previous blogs, we’ve talked about eliminating collateral source benefits, and this is one which is relevant now. In some states, an employee is eligible for unemployment benefits if they are “able to” work, thus, if they are disabled, their unemployment benefits could be jeopardized. Employers should challenge unemployment claims of employees on workers’ compensation if possible in your state.
5. Use outplacement professionals and offer services that can make finding part-time or alternate employment possible. This makes the transition smoother when employees know they will have a source of income.
No one likes to be treated disrespectfully, so consider the human side of this story and take extra effort and planning to make it as painless as possible for the people who have been working for your company for many years.
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Workers’ compensation authority NY, Attorney Theodore Ronca, offers suggestions about layoff planning, and emphasizes whether for a business or an individual, planning is somber but necessary. Following, and often prior to, economic layoffs the dismissed workers will rethink sources of income to tide them over. The first and second sources are unemployment benefits and part time jobs. Many, however, will consider reopening a workers compensation claim or filing a new claim. In any large enough group of workers, this will become a certainty. Therefore, planning for such claims is essential, not optional.
The first rule is to NOT make the first mistake.
Do not assume all new claims after a layoff is announced or known to be coming are unworthy or fraudulent. In fact, whatever their merits, they are a predictable reaction to anxiety. Therefore, focus planning on learning how to identify meritorious claims and seeing that they are paid as quickly as possible. Following that, turn your attention to claims that are not properly part of workers’ compensation. Realize that some valid claims will be uncovered as a result many people — many of whom are part of an aging workforce — now being out of work.
Claims that show signs of being driven by economic need rather than disability may have the following characteristics:
1. The claim is filed following exhaustion of non-injury benefits, such as a UI claim.
2. The reporting of such claim is untimely, anomalous, unusual, or irregular. The claim was never reported or witnessed on the day in which it was alleged to have occurred.
3. Medical evidence begins not when treatment would have been expected but when knowledge of impending economic hardship is received.
4. Inquiries for other sources of income are made prior to filing of the claim but without reference to any injury.
Tip: The above will serve to distinguish claims that should receive special scrutiny but only if an intelligent search is made for relevant contemporaneous documents. Documents, not testimony, are the best evidence.
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.
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Workers’ Compensation Exclusive Remedy Rule versus Iowa’s Strict Liability Statute Regarding Dog Bites
Husband and wife own and manage a retail establishment. Trying to promote the business as friendly and family-oriented, they often bring their dogs to the store. They also take pride in the cookies and favors they provide to prospective customers. One day, husband and wife bring their Akita dog to work, securing it on a leash in the back of the store. When a co-employee, Smith, goes to the back of the store to retrieve cookies for customers, she’s attacked by the dog. Smith seeks and recovers workers’ compensation benefits from her employer and then files a tort action against the husband and wife under a special Iowa statute making the owners of dogs strictly liable for bite-related injuries. Husband and wife contend the strict liability action is barred by the exclusive remedy rule.
HOW WOULD YOU DECIDE?
In Smith v. Elick, 2009 Iowa App. LEXIS 24 (January 22, 2009), the Court of Appeals of Iowa determined that the workers’ compensation exclusiveness defense trumped the state’s strict liability “dog bite” statute. The case is generally in line with decisions from other states which hold that the exclusivity defense is generally successful against all sorts of actions filed under Employers’ Liability Acts, Structural Work, Scaffold, Defective Machinery Acts, RICO, and Labor Laws. For further information, see Larson’s Workers’ Compensation Law, Ch. 100, § 100.03.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter (LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook (LexisNexis). To say the least, Attorney Robinson is an authority in the area of workers’ compensation and we are thrilled to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
When to settle a work comp claim – the rules… New York Attorney Theodore Ronca offers some pros and cons of settling workers comp cases, and some parameters and thoughts on the process. Settlement of any legal action is favored by the courts and the states, but when and why should it be done? 1. Settlement before all pertinent facts are known is dangerous and sets terrible precedents. Settlement without knowledge invites fraud and exaggeration of claims. It is quickly communicated to co-workers and creates a dysfunctional work environment. Therefore, never settle without as much knowledge of the facts and circumstances as can reasonably be obtained. 2. Why settle? Active litigation of a claim is expensive, drives up work comp costs and is demoralizing for all parties. It can forever destroy a worker's employability. At some point, even the prospect of a successful defense can become counter-productive. All sides, when it comes to medical matters and measurements of disability, must admit to a considerable range of uncertainty. As long as no fraud is involved and both sides compromise, there is little harm in disposing of a dispute. 3. When not to settle. Never settle when a claim is fraudulent. Never "split with zero". (If you're expert says there is no disability or permanent loss it is better to take the litigation to its conclusion than to settle, even if you do not prevail.) Never take advantage of a settlement offer which is detrimental to an honest worker's future. Dire circumstances can cause a worker to accept an offer when they are depressed or panicked. Co-workers will, always, learn of it and the damage is considerable and permanent. Never settle with strangers. You must get to know the people with whom you are dealing. Workers compensation is highly repetitious and involves relatively few people. It will not be difficult to find people who know the reputations of those other people at the conference table. 4. Life after settlement. A good worker is fearful and depressed at the thought of severing a relationship built up over years or decades. If they will not be returning to your employment allow them to remain part of your social community. In time, they will transition to a different pattern of life, often far away. Let the transition be as pleasant as circumstances permit. Settlement of a serious injury pushes executive skills to the limit. Leadership, communication and charity are essential. Your workers are watching. 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. Try the WC Cost Calculator to show the REAL COST of work comp. Look at WC 101 for the basics about workers comp. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Step 4. Supervisor Involvement
Supervisors also participate to enhance communication and to reinforce employee teams. Each month, employee raffle cards are delivered to employees personally by their immediate supervisors. The completed raffle card is returned by employees to their supervisors within five days. It is crucial supervisors deliver the raffle cards to each employee personally to establish rapport with and reinforce their co-participation in the program. Supervisor involvement facilitates communication. Where there may have been no active communication between the supervisor and a given employee before, there is now. Supervisors are encouraged to actively motivate employees to work toward the corporate goals of absence management by participating in this venture.
Program Specifics
The absence management program is preceded by intensive communication to raise employee awareness, using employee brochures, posters with absence management themes, public posting of the teams and players and eligible prizes.
Raffle cards are distributed at the first of each month. The cards are the employee’s entry for the monthly raffle and contain monthly absence management messages. Each card has a space where employees can comment on absence management policies and procedures. When employees return the signed raffle cards to their supervisors, they are, in effect, actively participating in the absence management reduction program.
Contest suspense builds until the raffle drawing at the end of each month. If there are disqualifying absences, the names of the employees and their teams appear next to the prize with the words “Disqualified by” preceding the names.
Raffle cards are put into clear drawing bowls at the appropriate time and location, and the drawing held with as many employees present are possible. Each name is announced as the card is drawn, the team lists checked to determine eligibility. If employees are eligible, their eligibility is announced. If the employee is ineligible, this too is announced
Values
Value systems quite often exist in relative states. Though each individual holds personal values, these values may be quite flexible and subject to change when sufficient pressure is exerted from the social environment to change those values.
Employers who want to communicate and enforce a change in employee value systems may consider team-building an effective communication tool. The team-building approach to absence management is a proven way to reinforce company standards. At the same time, team-building alters the value systems of employees and ultimately reduce the costs associated with chronic absenteeism.
The survival of each teammate depends on the performance of the team. The impact of team-building and peer pressure has far reaching ramifications on the employer’s ability to control costs resulting from needless absenteeism.
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.
Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
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