As has been discussed frequently, the key to effective cost management in workers’ compensation is developing and implementing an effective workers’ compensation program, covering every aspect of this very complicated issue.
Here is the second installment of a mini-preview of the manual’s contents. It contains additional elements you will place on your “to do” list to make sure you have written procedures for each of these areas.
1-Reporting a Claim -Report ALL losses using a “Reporting Procedure”
2-Post-Injury Response Procedure -Post-Injury Response Guidelines using the Post-Injury Response Worksheet
3-Directing Medical Care-
a-Working with and gaining cooperation of medical providers
b-Insight from diagnosis through understanding medical terms
4-Return to Work (RTW)
a-Transitional Duty Policy Overview
b-Coordinating WC with Federal and State Leave Statues
Make your worksheet and begin developing a more detailed (workersxzcompxzkit) view of the manual’s contents and information on how to order your copy of “How to Manage Your Workers’ Compensation Program & Reduce Costs 20-50%.”
Try the WC Cost Calculator www.ReduceYourWorkersComp.com/calculator.php
Look at WC 101 www.ReduceYourWorkersComp.com/workers-comp.php
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 Returning Employees to Work
Remember: It’s All Attitude
Dissatisfied Employees
The active-dissatisfied employee who is really unhappy with his/her situation will actively attempt to take advantage of the system. The proper response in attempting to return this person to work is much more drastic and severe and may include active investigation into their situation and fraud control programs may be necessary.
The passive-dissatisfied employee may malinger to stay out longer than medically necessary. While such workers may not willfully concoct schemes, they will quietly take advantage of a situation when opportunity arises – called “opportunistic fraud.” Fraud control tip lines often expose passive-dissatisfied workers. Constant interaction is recommended between physicians with follow-up examinations to avoid communication breakdown or further delays in returning to work.
For most employers problems often arise because when they do not think of employees in these four categories. Instead programs are developed (workersxzcompxzkit) addressing only one or two types of employees. Implementing such a limited response often has a detrimental effect on employer/employee relations. For instance, when an employer uses the response for a dissatisfied-active worker on a satisfied-active worker, new problems arise.
Likewise, hiring an investigator to follow a worker who is satisfied and eager to return to work simply angers the previously content worker, causing the worker, in turn, to become somewhat unwilling to return to work so quickly or at all. Therefore, it’s highly recommend employers adhere to the four-quadrant Employee Attitude Axis.
Author: Robert Elliott, J.D.
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
Communicating safety issues effectively to a diverse workforce represents one of these challenges. As a risk management consultant for many years, I've gathered solid information and experience on the best way to communicate safety and workers' compensation (workersxzcompxzkit) messages to a large and diverse workforce, including organizations with thousands of employees with diverse backgrounds and many different job descriptions. We call this the Five/Four Method: 5 Safety Communication Techniques and 4 Safety Message Formats. Before beginning, identify your target audience and the safety message you want to give. The most important thing an employer must do before implementing any safety communication program is meet with employees and supervisors to discover their ideas on what needs to be communicated and how best to do it. Five Safety Communication Techniques First: Identify the specific message you want to communicate. Example: Is the message about getting employees to work more safely around certain equipment? Or is it to provide information on steps to take if they are injured? Second: Identify the skill set and grade level of your audience. Example: A message to the vice president level on how to improve commitment to the safety program would be presented differently than instructions to first-line employees on how to report an accident. A general rule of thumb for thinking about language levels is to keep in mind the Wall Street Journal is written at a first-year college level, while the Reader's Digest is written at a sixth grade reading level. Third: Consider the job functions and how best to get your message across. Example: Some employees might spend most of their work day in an office or one specific area of a plant. Others may spend it working in different areas of the plant or facility. Still others may spend their day driving from location to location. It's a good idea to tailor your safety message to the types of safety issues more likely to effect those employees and areas of work. Fourth: Identify the languages your employees speak. Don't assume they will be just English and/or Spanish. There can be many other languages. In many areas of the country there are large contingents of Russian speaking workers just to mention one. In addition, there are differences within languages, such as Cuban Spanish and Puerto Rican Spanish. It would not be too far off the mark to suggest management survey their workers' languages and provide all safety message as appropriate. Fifth: Consider the work environment. If you have a congenial workforce, don't use a heavy-handed communication style. Save it for a workforce where there may be a lot of discontent and resentment. Author: Robert Elliott, J.D. WC Cost Calculator to show the REAL COST of work comp. www.reduceyourworkerscomp.com/calculator.php WC 101 for the basics about workers comp. www.ReduceYourWorkersComp.com/workers_comp.php 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
A three-day series in the New York Times recently discussed frustrations with all participants: employees, employers, medical providers, insurance companies and the Workers’ Compensation Board. Many have asked, “How accurate is this story?”
If the series had been run three or four decades ago it would not have been substantially different. The deficiencies described are due to the entrenched sub-culture of a system perceived as small compared to negligence or group medical benefits but having out of proportion effects upon businesses and families.
The articles portrayed the hearings as seen from the point of view of a New York City hearing. The sheer volume of hearings at these points accounts for the system’s resemblance to small claims or traffic court although the consequences to the parties are orders of magnitude greater. (workersxzcompxzkit)
The employers’ viewpoint was seen from substantial long-standing businesses up-state, a region where a town, city or county may depend on the health of a single industry or employer.
The real message for the reader is there is a sector of the health and disability industry which must address problems that it is only now acknowledging and beginning to understand.
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.
Try the WC Cost Calculator to show the REAL COST of work comp. www.ReduceYourWorkersComp.com/calculator.php
Look at WC 101 for the basics about workers comp. ww.ReduceYourWorkersComp.com/workers_comp.php
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. www.ReduceYourWorkersComp.com
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
Self-Insurance Programs and high deductible programs are the two most common ways for a company to get almost total control over how their claims are handled.
Formal self-insurance is insurance that is accomplished without the use of an insurance company.
A company must file an application with the state insurance commission to become self-insured. They can either handle their own claims in an arrangement called “self-administration” or have a third-party administrator (TPA) handle their claims. In some cases the a TPA can handle the claims in a “dedicated” claims unit where they handle only the claims of that particular company. The term “self-insured/self-administered” is used when a self-insured company handles it own claims in-house (they hire their own adjusters to handle their claims). Many companies that are self-insured participate in industry or state organization made up of other self-insured companies.
The benefits to self-insuring are that a self-insured maintains use of their cash until a loss is paid; however when the loss is paid, if it’s a large claim they often “feel the pain” since none of the risk is transferred they must pay the entire amount. If the division incurring the loss is a smaller division of a large company the cost can equal the amount of a significant percentage of their sales.
Flexibility and control is beneficial because the company selects counsel (and pays for it), settles all claims and makes all other decisions associated with the claim. The adjusters can be part of the workers’ compensation cost control teams, and can make phone calls to employees reminding them about medical appointments, etc. Conversely, if the company does not want to have a return to work program, they pay for all lost days out of pocket. They CAN however, place more emphasis on medical control by retaining a medical director either full-time or part-time to make sure IME cover letters are well-written and perhaps even contact the injured employee and their medical provider (where allowed by state laws). [workersxzcompxzkit). Thus, the emphasis can be place on improved medical care.
Reduced cost of overhead can often be reduced with the insurance function is taken in-house; however, self-administering is not cheap, and a careful analysis should be made before making the decision to self-insure.
While there are benefits, there are also drawbacks. Carefully consider the decision to take the risk on without the use of an insurance vehicle. For more information about what you CAN do to reduce your losses, go to www.ReduceYourWorkersComp.com
Summarized from an article provided by Glenn Trutner from Advisen. Thank you, Glenn. 
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 or other professionals 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 Returning Employee to Work
Remember: It’s All Attitude
There really is more than one way to return an injured employee to work. The difficult part is matching the right return-to-work strategy to the particular worker. Considering the personality and attitude of the worker in question is as important as considering the specific injury when implementing a return-to-work solution.
Just as there are many return-to-work programs successful under given circumstances, there also are a full range of employee attitudes accompanying each case.
Employers must individualize their return-to-work approach to meet the demands of the specific employee’s personality, because the most important factor in return-to-work is the attitude, attitude, attitude — of the employee.
A successful method of training employers to respond properly to the varied employee attitudes to ensure efficient and reasonable work returns is the Employee Attitude Axis.
The Employee Attitude Axis separates workers into four quadrants: active-satisfied; active-dissatisfied; active-dissatisfied; passive-dissatisfied. Interestingly, most employees fit nearly into one of these quadrants and require and respond to different return-to-work strategies.
Handling Satisfied Employees
The active-satisfied employee needs no coercion or prodding to return to work. This worker is one who has been with the company 20 years and hasn’t missed a day and would drag himself or herself to work on one good arm. In this case, a simple get-well card more than suffices for the worker in the active-satisfied category.
The passive-satisfied employee while usually happy at work is a little more complacent. This employee needs some gentle intervention to ensure return to work. Phone calls, weekly meetings and early intervention make sure the worker maintains a positive attitude about the employer and returns to work.
_______________________________________________________________________________________
Author: Robert Elliott, J.D.
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.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact I
nfo@WorkersCompKit.com
A risk manager is responsible for a broad array of duties as the company sets up a workers’ compensation management program. To reduce costs, the risk manager should see his role as closely monitoring the implementation of the program. Naturally, the responsibilities depend on the size of the department and amount of assistance that is provided.
Tips on what a risk manager should do:
1. Determine what type of claims administration arrangement the company has.
2. Ensure the adjuster-to-claim ratio is appropriate for adjusters responding to your claims to get your workers back to productive employment faster.
3. Consider whether claims volume requires dedicated staff.
4. Familiarize yourself with claims administration’s best practices to better comprehend the adjuster’s role.
5. Make sure claims handling personnel are trained in injury management concepts so they can grasp the issues affecting your claims
6. Visit an adjuster claims handling location to see how your adjuster (workersxzcompxzkit)
handles your files and view their claims operations first hand.
7. Attend associate seminars and meet with other industries to observe how other organizations address workers’ compensation issues in today’s labor market.
8.Maintain benchmarks for your profession showing how potential savings generated by an effective injury management program far outweigh the initial costs of staffing.
Author: Robert Elliott, J.D.
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
ConocoPhillips Found In "Willful" Violation Of Oklahoma's Workplace Drug and Alcohol Testing Act
A federal district court has found ConocoPhillips in "willful" violation of the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Okla. Stat. tit.40, §§551-565. (the Act).1 A Jury then awarded the employee $583,413. An additional negotiated amount for attorney's fees significantly increased that award.
Finding the company in willful violation of the Act, the Court adopted the Oklahoma Supreme Court's definition of "willful" as used in the Act as "not only conscious, purposeful violation of the Testing Act, but also deliberate disregard of the law by those who know, or should have known, of the requirements of the Testing Act." 2
This is a case that has been in contention for more than four years in both state and federal court. The employee was fired for failing a breath test. In state court the company was found in violation of the Act for using a non-licensed test facility. Here, (workersxzcompxzkit) the issue was the employer's failure to provide the employee with the required information in its policy. The policy failed "to include in either its "Alcohol Plan" or its "U.S. Substance Abuse Policy" information about "[t]he available appeal procedures, remedies and sanctions." Such information was required by Section 555(A)(11) of the Act.
The court also concluded that strict compliance with the requirements of the Act is required. Quoting a state court decision on the subject, the court said: ". . . this court declines to make the standards less than mandatory by grafting into the Act a wholly foreign concept of substantial compliance."
Employers in Oklahoma would be wise to learn and incorporate the requirements of the Standards for Workplace Drug and Alcohol Testing Act. 1 Estes v. ConocoPhillips Case No. 05-CV-445-GKF-PJC (N. Dist. Okla., January 21, 2009)); Judgment entered February 13, 2009. 2 Citing Estes v. ConocoPhillips, Co., 184 P.3rd 518, 527 (Okla. 2008) Author: Atty. Bill Judge
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation's schools. Attorney Judge, JD, LLM can be reached at:708-334-8010.
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
Here’s What Happened
Smith brought claims under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) against the U.S. government and various prison officials, alleging that he was exposed to asbestos in 2003 while an inmate at the federal prison at Leavenworth. Smith alleged that during his incarceration, he worked as an electrician for the prison’s Custodial Maintenance Services and in the course of that work received a work order to install a new light fixture in a closet in the prison’s education department. According to Smith, the closet lacked any ventilation. Smith alleged in relevant part that while he was installing the light fixture, another inmate, who had been instructed to clean the closet, entered the confined space and on two occasions pulled insulation from the pipes, creating clouds of irritating dust. Smith alleged that during the incident his throat and lungs were irritated by the dust, that ten years prior to the dust incident an engineering survey established the presence of asbestos in the insulation in that portion of the prison, that various prison officials knew of the dangerous environmental conditions within the closet, and that as a result of exposure to the asbestos dust, Smith suffered from a cough, shortness of breath, difficulty with his throat and eyes, and that he had also suffered emotional distress. The federal district court dismissed Smith’s multiple claims and he appealed.
Here’s How the Court Ruled
In Smith v. United States, 2009 U.S. App. LEXIS 6949 (10th Cir., March 31, 2009), the federal district court held that Smith’s claim under the Federal Tort Claims Act (“the federal tort claim”) could be advanced only against the federal government and not the individual defendants, that the federal tort claim was barred by the exclusive remedy provisions of the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126, which provides specified compensation for a federal inmate who suffers a work-related injury or improper medical treatment of a work-related injury, and that Smith’s Bivens claim could be brought only against federal officials in their individual capacities; it could not be asserted directly against the United States.
Practitioners should recall that the IACA (and the regulations promulgated thereunder) provides two types of “workers compensation” for a qualifying federal inmate.
1- The first type of compensation is available only when the inmate is ready to be released from prison and reenter the workforce [28 C.F.R. §§ 301.101(a), 301.301-.319]. If the inmate still suffers a residual physical impairment as a result of the work-related injury, then within forty-five days of his or her release date, he or she can submit a claim for compensation [§ 301.303(a)]. If, however, the inmate has fully recovered from the injuries while incarcerated, he or she is not entitled to any compensation [§ 301.314(a)].
2- The second type of compensation is for wages the inmate actually loses while he or she is prevented from doing his or her work assignment due to the injury [§§ 301.101(b), 301.201-.205].
In the instant case, Smith argued that the IACA should not be the exclusive remedy against the government for a prisoner like himself, who had a very long sentence, that IACA likely would afford him little, if any, relief because he might die before he was within forty-five days of his release date. The circuit court noted that the issue had arisen before and indicated it was up to Congress to make any changes that were required; the court could not legislate.
See generally Larson’s Workers’ Compensation Law § 100.03[3].
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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). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation
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WC Cost Calculator to show the REAL COST of workers www.ReduceYourWorkersComp.com/calculator.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
A critical part of controlling workers’ compensation costs is to put into place solid investigation techniques. No matter how serious or minor a workplace injury, each case needs to be reviewed to identify any fraudulent claims and take appropriate action.
When communicating with employees make it clear the company Immediately investigates each accident when it occurs to determine the root cause and to identify corrective measures. And, will be on the alert for both minor extensions of days out of work and outright fraudulent claims.
Review these 25 Red Flags of Fraud and request an investigation if you suspect a claim is illegitimate, or exaggerated.
Claimant Flags:
Injury reported late, to an attorney or to the state commission before reporting it to the employer.
Fails to attend weekly meetings.
Is uncooperative, i.e., refuses to try a transitional duty job.
Is never home when you phone, especially during normal workday hours.
Has only a postal box rather than a home address.
Misses doctor appointments.
Is known to perform seasonal activities, hobbies, or work.
Has moved out of town or out of state.
Disputes average weekly wage due to additional income.
Files for benefits in a state other than the principle location.
Disputes information supplied by the employer on “First Report of Injury” notice.
Refuses to cooperate in claim investigation.
Has an unstable work history.
Has recently been terminated, demoted, or passed over for promotion.
Has a prior history of injury management or liability claims.
Makes excessive demands or is pressing for a quick settlement.
Carries little or no health insurance.
Medical Flags:
Medical reports are repetitive, indicating continuing, constant pain with conservative medical treatment.
The word “disproportionate” is used in medical reports.
The doctor mentions there is “facial grimacing.”
Positive “Waddell Tests” (test for low back pain) are mentioned.
Workplace Flags:
Employer experiencing labor difficulties (i.e., layoffs, strikes, walkouts).
Tips from fellow workers, friends, or relatives.
Insurance company wants to settle the claim for a huge amount of money.
“Things” just don’t ADD UP!
Author: Robert Elliott, J.D.
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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