How Would You Decide: Ohio Worker’s Arrival at Work Site More than One and One-Half Hours Early Might Nix His Comp Claim for Injuries Arising From Assault
Here’s What Happened
Buck was employed by Melco as a heavy equipment machine operator. He was assigned to do excavation at a quarry located approximately seventy miles from his home in Toledo, Ohio. He customarily left his home early to ensure that he arrived to the site on time for his work shift which began at 7:00 a.m. each workday.
However, it was customary for the employees to enter to the quarry at 6:30 a.m., when the foreman arrived, to start the machines, and to be ready to perform promptly at 7:00 a.m. On the day in question, Buck arrived at 5:30 a.m., parking his truck near the gate where he and others had been instructed. Between 5:45 a.m. and 6:00 a.m., he exited the vehicle to use a “port-a-john” located adjacent to the designated parking area. As Buck left the port-a-john to return to his vehicle, he was accosted by three men who beat and robbed him. Some ten minutes after the assault, other employees arrived and offered assistance. The foreman arrived at approximately 6:30 a.m. and law enforcement officers were notified.
Buck was admitted to a county hospital for treatment of his injuries and subsequently sought workers’ compensation benefits. Both the district hearing officer and the staff hearing officer for the Industrial Commission allowed the claim, concluding that the injury occurred in the course of and arose out of Buck’s employment. Melco appealed to the Industrial Commission, which refused to consider further appeal. Melco then appealed to the County Court of Common Pleas pursuant to Ohio Rev. Code Ann. § 4123.512. The parties entered a stipulation of facts and indicated the only issue on appeal before the trial court was whether Buck’s injury occurred within the course of and arising out of his employment with Melco.
The trial court granted Buck’s motion for summary judgment, finding that the injury was compensable and it denied Melco’s similar motion. Melco appealed, contending in relevant part that at the time of the assault Buck was not engaged in an activity required by his employment, that Buck’s actions did not serve any benefit to Melco because the injury occurred more than an hour prior to the scheduled commencement of Buck’s workday.
Here’s What The Court Decided:
In Buck v. Melco, Inc., 2009 Ohio 6872, 2009 Ohio App. LEXIS 5766 (Dec. 28, 2009), the Court of Appeal of Ohio (Third Appellate Dist.) reversed the entry of summary judgment, finding that there were a number of genuine issues of material fact that remained unanswered in the record. The court indicated Buck’s early arrival might have placed him outside the course of his employment with Melco. The appellate court stressed that while the parties had stipulated that it was “customary” for the employees to arrive at least thirty minutes prior to their shift, it was unclear whether some employees were “encouraged” or “expected” by Melco to arrive early and perform preparatory activities, or whether the practice of early arrival was purely voluntary for the convenience or benefit of the employees, as opposed to the convenience or benefit of Melco. The court added that Buck’s “customary” early arrival at the jobsite, standing alone, was an insufficient basis for a determination, as a matter of law, that Buck was “within the course of” his employment at the time of the assault.
According to the court, a more complete resolution of the factual circumstances surrounding the employees’ early arrivals was essential in determining whether the timing of Buck’s arrival at the jobsite was consistent with his contract for hire, logically related to his employment with Melco and, thus, whether Buck was indeed in the course of his employment when his injury occurred. The court also indicated that similarly, the issue of Buck’s early arrival to the jobsite also raised issues of material fact with regard to the “arising out of” portion of the court’s analysis. (workersxzcompxzkit)
On the one hand, ensuring that an employee arrived on time benefited the employer-having an employee readily available when the foreman arrived was important. On the other hand, a question naturally arose as to whether, under the totality of circumstances and employer expectations, an employee’s presence a full one and a half hours before the formal 7:00 a.m. start time still fell within the “benefit the employer received” language described in the important Ohio case, Lord v. Daugherty, 66 Ohio St. 2d 441, 423 N.E.2d 96 (1981). Based on the factual issues, summary judgment was not appropriate. See generally Larson’s Workers’ Compensation Law, § 8.01, 8.03, 12.01, 13.04.
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). 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
Podcast/Webcast: How To Prevent Fraudulent Workers’ Compensation Claims
http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Trinity International Corp., a holding corporation for 89 other and various companies, recently reduced incurred workers’ compensation losses by 79%; medical costs by approximately 50% and 99% of injured employees returned to work within 10 days. Trinity teaches its divisions to manage claims internally, returning employees to work as soon as medically able.
One of Trinity’s secrets in reducing work comp costs so dramatically was they actively involved their insurance carrier to help them return injured employees to their jobs. Containing the costs of workers’ compensation requires teamwork on the part of all parties involved. Trinity educated their broker, third-party administrator, insurance company and, more importantly, each of their companies so everyone understood the program and knew Trinity wanted employees back at work as soon as medically possible. It became known the corporation was willing to go to great lengths to place employees back into the work force, and their assistance in this effort was required.
Trinity redesigned its insurance program so all auxiliary services provided by outside vendors fit together into the company’s total program. The program is designed to be a vehicle for these services. Trinity also has implemented very detailed set of account instructions. The corporation approves all claims’ settlements, and written status reports on all claims over $10,000 are required every 30 days. The company follows other cost-cutting guidelines.
1-File Audits
All workers’ comp files are audited twice a year to develop a strategy to resolve not just to review each claim, These audits consist of face-to-face meetings between the company representative (usually the personnel director and general manager), the insurance company file adjuster, the insurance company supervisor, the insurance broker and the physician consultant. Meetings are followed up with a written strategy plan to ensure each party understands the action they’re responsible for implementing.
2-Investigation and Surveillance
Each accident is investigated in the plant immediately after it occurs, to determine the root cause and identify corrective measures. In addition, claims with “red flags,” or considered questionable, are investigated by professional investigators to determine whether the extent of the injury is legitimate or is being exaggerated.
Trinity recommends companies budget 5% to 10% of the total cost of the claim for surveillance.
3-Safety Management
No workers’ compensation cost control program is complete without an effective loss control program and an in-plant safety program. While Trinity has what it considers a good loss-control program, it also realizes there will be comp claims and management must be prepared to manage properly these inevitable claims. Trinity advises companies to utilize the services of their broker or their insurance carrier’s loss-control subsidiary or division, when available.
Also, employers should have loss-control inspections at every facility several times a year. Not only do firms review workers’ comp claims and safety procedures regularly, but also they need an active safety committee, a workers’ comp coordinator and a safety incentive program.
4-Performance Goals
Trinity measures program results in three ways.
1. OSHA Severity Rate: The company tries to keep the below 40/100, a formula derived by using the number of lost work days, depending upon risk or exposure. (workersxzcompxzkit)
2. Return-To-Work Ratio Goal: Trinity has an RTW ratio goal of returning 70% to 90% of injured workers to work within 10 days following an injury.
3. Cost Per Employee: The company strives to keep its CPE below $150 per employee.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers’ Compensation Claims
http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Nothing Succeeds Like Success – Or, Let’s Not Reinvent the Wheel
A leading international third-party administrator for large self-insured organizations, provides workers’ compensation, auto and general liability claims management, medical management, integrated disability management and risk and safety consulting.
Part of this multi-national company’s success stems from having a document listing the company’s own best practices regarding workers’ compensation procedures. The claims staff divides their procedures into fourteen discrete areas. Let’s look at these two steps.
Quality Contacts
A three-point contact system results in establishing and maintaining effective communication with all key parties to the claim in order to facilitate investigation, claim control and explanation of benefits.
Initial Contacts – Indemnity Claims
1. The claims examiner will verbally contact the injured worker or attorney, if represented, the employer and the treating physician by the end of the next business day following receipt of the loss to the TPA.
2. When unable to reach a claimant within one business day, a letter will be sent asking the claimant to call.
3. The claims examiner should make at least two attempts to contact the applicable parties within five-business day following receipt of the loss to the TPA. A letter will be sent if unable to reach the parties.
4. If contact cannot be achieved due to circumstances beyond the control of the claims examiner, the claim file should be appropriately documented.
Ongoing Contacts – Indemnity Claims
1. Ongoing contacts with the employer, the injured worker and the medical provider should be performed through the life of the file.
2. All contact efforts should be detailed in the claim notes.
3. The claims examiner should vary calling times to increase the chance of a successful contact.
4. Significant changes in the claimant’s condition should be documented in the claim notes.
5. If claimant is off work or on transitional duty, contact should be maintained, at maximum, every 30 days by the claims examiner and/or medical case manager.
Initial Contact – Medical Only
1. The medical claim analyst verbally contacts the employer by the end of the next business day following receipt of the loss report.
2. The medical claim analyst sends letters to the employee and medical provider by the end of the next business day following receipt of the loss report.
3. On transitional duty claims with lost wages or a reduction in hours worked, three-point contact is verbal for all three contacts areas.
Investigation
Prompt, thorough investigation provides the framework for timely analysis of coverage, compensability decision, effective claim management, pursuit of cost containment opportunities, and the timely issuance of claim benefits.
1. The scope of the investigation considers type of accident, complexity of injury, and compensability issues. Investigation applies to all claims other than those designated as medical-only claims through the assignment process.
2. Initial investigation is completed within 14 calendar days of receipt of the loss report. This TPA utilizes a proprietary claim advantage system, an evidence-based decision tree software tool, to support investigation and prioritize claims. The claim-handling process continues to re-evaluate the exposure as the case progresses and allows for the development of a goal-centered strategic plan of action.
3. Identification and investigation of potential subrogation or second-injury fund maximizes recovery potential and reduces client/carrier loss cost. All claims with potential subrogation are handled by a claims examiner who teams with ’s licensed subrogation partner to evaluate and pursue recovery opportunities. (workersxzcompxzkit)
The TPA, as a matter of sound business practice, and in recognition of its public policy obligations, has a duty to identify and resist all fraudulent claims. When the evidence supports withholding benefits, such claims are promptly rejected and aggressively defended; when the evidence is inconclusive, the claim is promptly adjusted.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers’ Compensation Claims
http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
The most conscientious employer can trip up when it comes to combining their state’s workers’ compensation law with the Americans with Disabilities Act (ADA) law and the Family and Medical Leave Act (FMLA) law. Unintentional and inadvertent violations of one of the laws can occur when the employer is focusing on their state’s workers’ compensation requirements or on ADA or on FMLA, and not considering the other two laws and how they relate and overlap. As an employer, you must take into consideration the various complications that can arise when you analyze each work comp injury in the light of either ADA requirements or FMLA requirements.
Definitions: ADA of 1990 protects disabled employees from discrimination due to their disability.
FMLA of 1993 permits employees to take unpaid time off, up to 12 weeks in a 12 month period, due to their own medical issues (FMLA also covers employees off work due to a family member but that is outside the scope of this article).
Eligibility: Work comp applies to any employee who has an injury or illness arising out of or in the course of employment. ADA applies when the employee has a disability, physical or mental, that substantially limits major life activity, or has a history of such impairment, or is regarded by others as having an impairment. FMLA applies when the employee has a serious health condition, whether illness, injury or impairment, that requires either continuous treatment of more than 3 days and at least 2 treatments or inpatient care.
Applicable: With work comp any employee is covered while unable to work during the injury or illness recovery period. With ADA, the employee is covered if the employee is a “qualified individual with a disability” and is performing the essential functions of their job without any accommodation or with “reasonable accommodation” by their employer. With FMLA, the employee must be unable to perform the functions of the position due to the medical condition to qualify for leave under FMLA.
Benefits: In work comp, the employee normally receives up to two-thirds of their wage rate (maximum and minimum caps) for time missed from work plus medical expenses plus a permanent disability award, if any. Under ADA, there is no benefit requirement mandated by law for a paid leave, but if the employer grants sick leave time to all employees, it can not be denied to an employee because of the disability. A FMLA leave is unpaid time off, however, the employee may take sick days, vacation days or disability leave with pay, unless the person is receiving workers’ compensation benefits.
Company Size: For work comp, all employees are covered unless the employer is a very small company and has less than the minimum required number of employees for work comp coverage. ADA applies to all employers with 15 or more employees. FMLA applies to employers with 50 or more employees within 75 miles of the employee’s work location, and the employee has been employed at least 12 months and worked at least 1,250 hours within the previous year.
Return To Work/Light Duty: With work comp, the employer may require the employee to work light duty/modified duty if medically approved. With ADA, the employee may require the employer to provide a light duty position as a reasonable accommodation, if light duty is available and feasible. With FMLA, the employer cannot require the employee to take a light duty job, but the employee may elect to do so, if a light duty job is available.
The Work Comp/ADA/FMLA Claim: As an employer you need to know when and how to apply the state work comp statute, the ADA and the FMLA.
A Case Study
Karen works for your company as a secretary/transcriptionist for several years. Since your company employs more than 50 employees at Karen’s office location, your company is subject to the work comp statutes, the ADA and the FMLA. Karen is an employee who misses work frequently and has used up all her allotted sick leave days.
One Tuesday morning Karen calls in and you expect to hear she has another cold or some other ailment, but instead Karen reports that both of her wrist have been hurting her for some time. Both of her wrists have become painful and she cannot use her hands. She went to her doctor yesterday after work. The doctor has advised her not to return to work until he can see her again next week. As you don’t know what is the cause of the wrist pain, and as Karen has no more sick time available, you advise Karen that her time will be covered under the FMLA (off work more than 3 days and two or more medical visits) and will not be paid time off.
The following Tuesday Karen calls in again and advises the doctor has now diagnosed her with bilateral carpal tunnel syndrome and has related her bilateral carpal tunnel syndrome to her job duties. Karen is now requesting work comp benefits claiming the wrist pain is most strongly associated with her job responsibilities. The claim is accepted as work comp and Karen has surgery on both wrist, which turns out to be only partially successful.
After three months Karen returns to work light duty and wants the same job she had before. However, Karen medical condition prevents her from being as productive as she was before, qualifying her as disabled under ADA. If Karen can perform the same essential functions as before with “reasonable accommodations,” per ADA, she is entitled to her old job. With FMLA, Karen is entitled to her original job or an equal job with the same pay and benefits IF she can perform the essential functions of her job, but under FMLA there is no requirement of reasonable accommodations like there is under the ADA.
Even though you are accommodating Karen’s workers’ compensation light duty restrictions, and have made reasonable accommodations to comply with ADA, Karen decides the work is too difficult and causes too much pain. As Karen’s doctor has released her to light duty, you can stop the work comp indemnity benefits, but Karen can still use FMLA for time off. She can apply for and use 12 weeks less all previously used time under FMLA time in the last 12 months. You should require Karen and all employees to use all available paid time off — sick time, if any, and all vacation time, if any — before allowing the unpaid FMLA leave, to prevent her from going on vacation at the end of her FMLA leave.
After Karen has no more work comp indemnity benefits as her doctor previously approved her for light duty, and she has exhausted her sick leave time, vacation time and her unpaid FMLA time, Karen provides medical certification from her doctor that she can return to work. Under FMLA your company has to take her back to her original position or equivalent position. Now, if Karen advised you she can return to work full time, if your company will make reasonable accommodations for her including an ergonomically correct chair, a new keyboard and a break from typing every two hours, you are obligated to do so under ADA, as you can make those accommodations. (workersxzcompxzkit)
In Summary: The burden is on the employer to know all the requirements of the state work comp laws, the ADA and the FMLA. If there is a conflict between the statures, the Federal statutes — ADA and FMLA — take precedent over the state work comp statutes. Smart employers educate themselves for all three sets of laws and comply with all three.
Podcast/Webcast: How To Prevent Fraudulent Workers’ Compensation Claims
http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Posted in
