According to a 2009 RIMS Benchmark Survey, only twenty-one% of employers get work restrictions on the FIRST medical visit. This "waiting" puts the employee in charge.
The problem usually almost always starts with a “lack of control,” something like this example…
In June, “Joe” brings in a disability note, a pre-printed form saying “totally incapacitated.”
There is no diagnosis, no prognosis, no treatment plan, no estimated RTW date, no indication of what the employee CAN do, not even a phone number to contact the doctor.
In December, “Joe” brings in another slip when he comes to the plant to pick up his Christmas bonus (a turkey) saying he will be out of work for another four months.
Too many claims that last too long are, in general, are the reason workers’ comp costs are high. THIS IS THE TOP REASON WORKERS COMP COSTS TOO MUCH. The root cause of this is that the employer is not in charge allowing the employee to be "in control" of the situation which has allowed the length of time out of work to become "disproportionate."
An employee is injured June 1, and healed by July 1, but doesn’t come back to work until Dec. 1.
Obviously, the time out of work is disproportionate to the duration of the disability. Do you use disability guidelines — learn what those are! We have some in Workers Comp Kit. www.WorkersCompKit.com
Most employers do not know how many employees are out of work, but they DO know how many vehicles are off the road, how many production lines are down, and how many flights are delayed. But, no one has focused on how many employees are out of work.
If you are a carrier, provide this information in a clear way to policyholders. If you are an employer, ask for this information. Require your carrier to track lost days accurately – days for which you pay lost wages. Make sure the lost days fields are mandatory. (workersxzcompxzkit)
Ask yourself: If someone came in your office tomorrow, could you tell him or her how many employees are out of work right now?
Author Rebecca Shafer, J.D. Consultant, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties. Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
OSHA's recent review of the agency's methylene chloride standard indicates the standard is succeeding in protecting workers from the effects of methylene chloride exposure such as respiratory and central nervous system failure and cancer.
The review showed clearly the standard was effective in saving lives. The study estimates that each year the standard protects as many as 30,000 to 54,000 workers from damage to their respiratory and nervous systems and prevents approximately 34 deaths from cancer and other illnesses caused by methylene chloride exposure.
The agency concluded these estimates resulted from the lowered permissible exposure limit required in the final methylene chloride standard published in January 1997. The standard's success reflects the overall importance of OSHA standards in protecting workers' safety and health.
OSHA conducted the review as required in the Regulatory Flexibility Act and Executive Order 12866. Part of the review involved requesting and evaluating public comments on the standard's effectiveness.
Results of the review showed the risks of developing and dying from cancer and respiratory health issues still exist and require a continuation of the methylene chloride standard. The standard did not cause a burden to small businesses and industry in general, and the costs for putting the standard into practice were considered essential to protecting workers' health. Comments also indicated employers understood the standard and were able to apply the requirements without causing disruptions in work products or services. (workersxzcompxzkit)
Methylene chloride is a volatile, colorless liquid with a chloroform-like odor. It is used in various industrial processes, and in many different industries including paint stripping, pharmaceutical manufacturing, paint remover manufacturing, and metal cleaning and degreasing.
Author Rebecca Shafer, J.D. Consultant/President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties.
Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
If you are the risk manager or workers’ compensation claims coordinator for a large company where you report new work comp claims on a regular basis, you need to select your adjuster. Whether your workers' compensation claims are handled by the insurance company or a third-party administrator (TPA), your claims handling agreement should specify that your company have the right to select, from their staff, the adjuster(s), who will handle your claims. If the insurance company or TPA balks at your company having input into who handles your claims, it is time to get another insurance company or another TPA.
Someone in your company must have an in-depth knowledge of the adjuster handling your claims – NOT just the adjuster's name and phone number. If you want to maximize the effectiveness of your adjuster, you need to know the adjuster's claim handling style. You also need to know when to step in if the adjuster is not achieving your expected results.
1- Dedicated or Designated
If you have multiple workers’ comp adjusters in the same claims office handling your claims – ASK — “Do you have that many claims?”
The problem with having multiple adjusters in the same office each handling only a few claims for your company is:
- They do not know what your preferences are.
- They do not know your return-to- work program.
- And, they do not know the claim handling philosophy of your company.
Depending upon the jurisdiction and the statutes involved, the experienced workers’ comp adjuster can handle from 125 to 150 claims at a time. If you have less than 125 claims in the claims office, it would be in your company's best interest to have only one adjuster, a designated or dedicated adjuster, working on your claims.
A “designated” adjuster handles all your claims plus claims for other employers. On the other hand, a “dedicated” adjuster handles only claims for your company. If, for example, you have 280 open workers’ comp claims in the same claims office, you want two dedicated adjusters who working exclusively on your claims.
If your insurance company or TPA is using multiple adjusters on your claims, you need to have a serious chat with them about having a designated adjuster or dedicated adjuster(s) for your program.
2- Adjuster Experience – Why It Is Important
The level of experience and training the adjuster(s) bring to your program makes a major difference in the outcome of your workers' compensation claims. While every adjuster has to go through the training stage, do you want the adjuster-trainee making mistakes on your claim files? Let the adjuster trainee learn how to handle claims on the workers’ comp files of the employers who not attuned to their workers’ comp program.
Request an experienced adjuster who knows:
1. the statutes and case law within the jurisdiction,
2. the plaintiff attorneys who settle fast and cheap
3. the attorneys who drag the employees’ claims out trying to maximize them,
4. the medical providers and their treatment style
5. the medical providers who are liberal with their permanency ratings and the medical providers who are conservative
6. the best defense attorneys, and
7. the tendencies of the industrial commission/workers’ comp board/court
3- Investigator or Record Taker
You do not want the experienced dedicated adjuster who is a record taker. A “record taker” copies what is on the Employer’s First Report of Work Injury form to obtain the description of the accident that injured the employee.
An “investigator” reads the Employer’s First Report, and then contacts the employer's workers’ comp coordinator, the employee's supervisor, the employee, and any witnesses to the accident. The investigator obtains detailed information from each party about how the accident occurred before accepting compensability.
The investigatordoes not stop being quizzical when compensability is accepted. The investigator reads every medical report thoroughly to have a complete understanding of the medical status and medical issues. The investigator then uses that knowledge to move the claim toward resolution. The record taker just makes a note of what the medical report stated.
4- Combatant or Complacent
When the employee's attorney makes an unreasonable demand, you want an adjuster who will stand up and say NO. Your company does not need an adjuster who takes the easy way out and accepts whatever the employee or the employee's attorney wants. Your adjuster should not always be in a combatant mode, but should know when to take a stand on statutes, principles, or common sense. The complacent adjuster who does not stand up for the employer's rights will cost your company a lot of money. When selecting your adjuster ask questions about how aggressive the adjuster will be in defending your workers’ comp claim.
5- Up to Date or Behind the Times
The workers’ comp statutes and the case law in every jurisdiction are constantly being challenged and changing. The adjuster (and the adjuster's company) you select for your workers’ comp program should be staying current on all legislative changes and recent case law. When selecting your adjuster, ask what sources the adjuster uses to know about changes in the workers’ comp statutes. The best adjusters have several sources of new information including defense firm newsletters, workers’ comp websites (like this one), and workers’ comp discussion groups on LinkedIn and other internet networks.
The adjusters for your company's workers’ comp claims should be current in their state required continuing education courses. It is also a good sign if the adjuster has obtained their AIC, ARM, AIM or CPCU designation, as it shows the adjuster has continued to learn and improve his/her skill set.
6- Supervised or Unsupervised
As a part of your claims handling agreement with your insurance company or TPA you need access to their on-line claim file notes. While you expect to see your adjuster notes frequently, how often do you see the supervisor's file notes? Does the adjuster's supervisor offer suggestions or recommendations on your claims, or, do you never see a file note by the supervisor? Even if you have the claims office’s best adjuster, every adjuster can benefit from a second set of eyes on the file. The supervisor should be reviewing the file and making comments on the progress of the file every 60 to 90 days. If not, you need to get the supervisor involved.
7- Historian or All in Adjuster's Head
A good adjuster is a historian, meaning everything the adjuster has done on the claim file is documented completely in the file notes. If your adjuster is on vacation or off work sick, you should be able to read the files notes on any of your workers’ comp claims and know exactly where the claims stands. If the adjuster does not keep good files notes, but has it “all in his head,” what happens if the adjuster quits, transfers, gets promoted, or dies? The next adjuster will spend considerable time not working on your claims, but recreating what should already be noted in the file. When you are selecting your adjuster, be sure to advise your expectation that activities on the file are to be documented in the file notes. (workersxzcompxzkit)
8- Results
Once you have experienced dedicated adjuster(s) working on your workers’ comp claims, don’t to stop there. You must benchmark your results each year to verify that the adjuster(s) working on your claims are exceeding the benchmarks for your industry. If your adjuster's results are not adequate, do not hesitate about asking your insurance company or TPA for the selection of another adjuster(s) for your workers’ comp program.
Author Rebecca Shafer, J.D. Consultant, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties. Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
A whistleblower investigation by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) found that the Port Authority Trans-Hudson Corp. violated an employee's rights by disciplining him for exercising his rights under the Federal Railroad Safety Act.
According to OSHA, the employee, under a doctor's order, was absent from work while recovering from a work-related injury. The railroad brought the employee up on charges for absenteeism, and the employee ultimately was suspended.
The worker filed a whistleblower complaint with OSHA alleging he was suspended by the railroad for following his doctor's order not to work while recovering from an injury. OSHA's investigation, conducted under the whistleblower provisions of the FRSA, found merit in the complaint.
“Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician," said Robert Kulick, OSHA's regional administrator in New York. "Railroads who retaliate against employees for exercising these rights will be held accountable."
As a result of its findings, OSHA ordered PATH to take corrective action, including expunging disciplinary actions and references to them from various records as well as compensating the worker for lost wages resulting from the suspension. The railroad also must post and provide its employees with information on their FRSA whistleblower rights.
PATH and the complainant have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges. (workersxzcompxzkit)
Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries as well as reporting certain safety and security violations and cooperating with investigations by OSHA and other regulatory agencies
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties.
Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
On average, 79 young workers are injured every working day in Washington state – or, about three every hour.
Statistics like these from the Department of Labor & Industries (L&I) are reminders that teens, parents, and employers need to focus on providing safe workplaces for young workers, particularly as the summer hiring season nears.
"Teens are eager to work and may not question a workplace situation that doesn't seem right, so we must do all we can to create safe workplaces for them," said Michael Silverstein, assistant director of L&I’s Division of Occupational Safety & Health. Gov. Chris Gregoire has declared May “Safe Jobs for Youth Month.”
Silverstein noted L&I is in the third year of a program to raise awareness among teens of the importance of workplace safety. The “Injured Young Worker Speakers Program” brings workers who were severely injured on the job as teenagers to high schools around the state as speakers.
Creating safe workplaces for teens includes providing adequate training, following laws prohibiting teens from operating dangerous equipment and, in general, giving them extra supervision and lots of repetition, particularly when they’re new to the job. (workersxzcompxzkit)
Employers who hire teens must obtain a minor work endorsement on their master business license, as well as a parent authorization form for the job assignments and hours the teen will work.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties. Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
The number of workplace injuries resulting in lost-time compensation claims in the province of New Foundland and Labrador has dropped below 4,000 for the first time in 50 years, the Workplace, Health, Safety and Compensation Commission reports.
According to annual statistics finalized this month, there were 3,999 lost-time injury claims in 2009, down from 4,255 a year earlier.
The last time the number of lost-time injury claims reported was below the 4,000 mark was in 1958, when there were 3,410 claims. The number of claims has been above 4,000 ever since, peaking at 10,642 in 1989.
The lost-time incidence rate, measuring the number of claims per 100 workers employed in the province, remained at an all-time low of 1.9. The rate has declined steadily from a high of 3.2 in 2000.
The number of accidental workplace fatality claims reported in the year, however, increased to 25, the highest in 20 years. In 2008 there were six accidental workplace fatality claims reported. There were also 17 fatality claims from industrial disease reported in each of the past two years.
“The significant reduction in workplace injuries is evidence of a strengthening culture of safety in this province, but the good news was completely overshadowed by the devastation of so many workers losing their lives on the job,” said Commission Chief Executive Officer Leslie Galway. “The number of workplace fatalities in 2009 made it a tragic year for Newfoundland and Labrador. These tragedies must remind us to be constantly vigilant for our safety – particularly in high risk areas.”
Workplace fatality claims in 2009 include 13 deaths from the March 12 Cougar helicopter crash claiming the lives of 17 workers (fatality claims are reported in the year the claim is filed and accepted by the Commission, not necessarily the year the death occurred). In addition, there were five fishing-related fatality claims reported in 2009, two in construction, two in aviation, two related to previous workplace injuries and one to contagious disease. (workersxzcompxzkit)
In other indicators, the number of medical aid only claims in 2009 was 2,335, down 25.6% from the 3,139 reported a year earlier. The incidence rate among young workers declined to 1.8 per 100 workers, down from 2.0 a year earlier.
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, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: Occupational Health Strategies Click Here:
WC Calculator: http://www.reduceyourworkerscomp.com/calculator.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.
© 2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com.
A former Starbuck's employee claimed as she was taking the day's receipts to the bank in 2006 thieves pushed her to the ground, injured her, and escaped with $3,000 in cash. She later filed a workers' comp claim. But Starbucks officials and police believed the woman made the whole thing up in order to steal from the company.
The woman was accused of faking a robbery for the purpose of stealing from her employer, Starbucks, and pleaded no contest to a misdemeanor grand theft charge attorneys report.
As part of a plea bargain the woman made with prosecutors, she was sentenced to 30 days in jail and 18 months of probation Chief Deputy District Attorney Steve Wagstaffe said. The former store manager has paid back the $3,000 she is accused of stealing. She starts serving her sentence in June.
The deal with authorities follows a jury ruling the woman was not guilty of two counts of insurance fraud stemming from workers' compensation claims she filed following the so-called robbery. Jurors, however, deadlocked 11-1 in favor of conviction on the remaining 11 insurance fraud and theft counts against the woman. (workersxzcompxzkit)
According to the defense, their client took the deal because she didn't want to take the risk of being convicted of a felony in the event the case went to trial again. If she finishes her court ordered probation, the woman’s record will be expunged.
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, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties. Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
Making changes to improve workers' compensation performance across your organization is hard. Maintaining your improvement might prove to be even more challenging! That’s why it’s important to make sure your processes are repeatable.
Conduct your assessments in a manner that is easily repeated and results over time can be compared. This means limiting open-ended questions and, preferably, using technology to make the trending of results easy.
Providing training for workers’ comp coordinators in the field is important, but how much will they remember six months later if you don’t give them easy access materials to use in the heat of the moment? Ideally, your organization will maintain an on-line instruction manual providing straightforward directions for each stage of handling an employee injury.
For that matter, you want to make sure it is easy to access the forms and tools needed throughout the life cycle of an employee injury. (workersxzcompxzkit)
This might include:
1. Call scripts.
2. Work availability forms.
3. Employee brochures.
4. Injury duration guidelines.
5. And more.
Invest in repeatable processes and tools:
1. Reassess and monitor compliance.
2. Ongoing training.
3. Easily accessible forms, manuals, and instructions.
4. Formal trainings.
5. Manuals and standardized processes.
6. Standardized tools and forms such as an on-line WC manual, supervisor guides, wallet cards and duration guidelines.
7. Examine the need to standardize communications to employees, doctors, claims managers, etc.
Author Rebecca Shafer, Attorney/Consultant, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties.
Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
One gap I often see is using data the wrong way. Companies use key performance indicators to hold management accountable, but they don’t use them effectively. Benchmarking is one of the most effective ways to gain management commitment – if you can read it.
You make reports count by using very direct communication strategies. For example, set aside important items for more impact. Using a large spreadsheet with tiny font makes the document virtually unreadable and unusable to potential readers.
Another example would be ranking all business units on one page. This has much more impact than a 40-page spreadsheet no one can figure out.
If you must have the 40-page spreadsheet, summarize it on one page or include a very brief executive summary.
Make It Count!
- Provide motivation to keep everyone involved in lowering the company’s WC costs.
- Use a workers comp target score ranking.
- No one wants to be listed as the worst!
- Small crowded lists have no impact.
Instead of a best-to-worst ranking, try a worst-to-best ranking. No manager wants to see his business unit on top of a list titled “Worst-to-Best.”
The division president will quickly “help” the general manager of the unit at the top of such a list “refocus his priorities.”
Further, one of the key cost drivers is management thinking workers’ compensation is a cost of doing business, so here’s tool to use to gain management commitment:
At a large convenience store chain with $17 million annually in WC and a 4.5% profit margin, it takes $377 Million to replace the $17 million on the bottom line. They knew the costs were killing them, but we didn’t get management commitment until all locations were plotted on a U.S. map and put big black Xs over the 25 locations whose total gross sales was used to “pay for” workers compensation. THAT got management’s attention. (workersxzcompxzkit)
Helping companies understand the financial impact is very important because most employers are not aware of how much WC really costs them.
Author Rebecca Shafer, Consultant, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
Podcast: KNOW the New OSHA Recordkeeping Rules — OR Risk Fines and Criminal Penalties.
Click Here: http://www.workerscompkit.com/gallagher/podcast/Non_Compliance_with_Recordkeeping_Standards/
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@WorkersCompKit.com
In January, Democratic state Rep. Sal Pace of Colorado introduced a bill designed to significantly restricted the use of surveillance on workers' compensation claims. The bill, endorsed by the plaintiff's bar and labor unions, would make surveillance nearly impossible by requiring the employer to have “a reasonable basis to suspect an injured employee had committed fraud or made a material misstatement concerning a claim.”
In other words, you needed proof the employee had already committed fraud before surveillance could be used to verify the employee's disability. The bill, approved by the Colorado House Judiciary Committee, died May 5, 2010 when the Senate committee voted 4-3 not to advance it for a vote by the full state Senate.
Surveillance often stops fraudulent claims. So why would a state ever consider barring surveillance? The answer comes from the mishandling of surveillance by both the workers’ comp adjuster and the private investigators (PI) hired by the adjuster. In a search of the internet for workers’ comp surveillance, there was just about as many horror stories about it being abused as there were cases where it was beneficial.
Surveillance abuses by PI's included:
1. The lazy PI who was observed in a parking lot by a stranger placing a black box, later determined to be a GPS device, underneath the employee's car. Instead of properly observing the claimant, the PI was using GPS to track the employee's whereabouts. Of course the stranger told the employee, who called the police.
2. The PI who dropped a vehicle battery in the employee's yard and waited for the employee to notice it and come out to remove it.
3. The PI who trespassed and buried a motion activated wireless camera under a tree in the employee's yard.
4. Illegal phone taps (invasion of privacy).
5. Digging through the employee's trash dumpster (invasion of privacy).
6. The PI who acted as a stranded motorist and asked the employee to change a tire.
7. The PI contacting an employee represented by an attorney. The adjuster cannot contact the employee when represented by an attorney and neither can an agent of the adjuster.
Adjusters Misuse of Surveillance
Often when the adjuster cannot think of anything else to do when the file comes up on diary, and the employee has been off work for a long period of time, the adjuster will request surveillance “to see what the employee is up to.”
Surveillance should not be used as a substitute for proper and aggressive file management by the adjuster. If the adjuster actively works the claim with the nurse case manager, the adjuster then knows what the medical status is and whether or not surveillance is need. If there are no fraud red flags in the claim and nothing in the medical reports or medical notes indicating the employee is malingering, surveillance will not pay off for the adjuster in most claims.
Before a workers’ comp adjuster considers surveillance, the adjuster should consider a background check and check credit on the employee. The background check, costing about $50, turns up information on lawsuits, judgments, liens, criminal record, home value, other property ownership, marriages, divorces, relatives and most important, business interest(s).
While most of the information will have no bearing on the workers' compensation claim, the occasional information on vehicles owned, a sideline business or rental property owned would be extremely valuable to a PI if surveillance becomes an option.
When there are red flags in the claim, or the employer learns the employee is working at another job, or there is some other development indicating fraud, then surveillance should definitely be considered.
Before employing a PI, the adjuster needs to have a discussion with the PI on surveillance methods to be used. The adjuster needs to make it clear to the PI that during surveillance the investigator:
1. may not trespass on the employee's property,
2. take pictures/video of the employee in their home,
3. contact the employee if the employee is represented by an attorney,
4. use any form of entrapment,
5. defame or cast suspicion on the employee if they contact the employee's neighbors,
6. violate any privacy law, or
7. violate any other law.
Even in cases where there is a lot of circumstantial evidence indicating the employee may not be injured as badly as the employee claims, surveillance will not always provide video or other proof that the employee is exaggerating the injury claimed. In the cases where the PI obtains video of the employee shoveling heavy snow, pushing a lawn mower or other activities beyond the restrictions placed on the employee by the medical provider, the adjuster needs to be careful how the information is used.
When surveillance produces proof the employee is exaggerating his injury status or is involved in an outright fraud, the adjuster must consult with the defense attorney. There has been more than one adjuster who has taken surveillance information and invalidated it by misusing it. The natural tendency is to send a copy of the video to the medical provider and the employee's attorney as proof the employee is a fraud. That can be a big mistake.
When surveillance produces usable evidence, the adjuster requests further surveillance of the employee. A fifteen second video of the employee carrying a heavy box of trash to the curb can easily be discounted by the employee as “a good day” and does not show him in bed for the next couple of days because he picked up the box. Instruct the PI to obtain video on additional days to diminish the “one good day” rebuttal by the employee and the employee's attorney.
Once there are several videos of the employee doing activities beyond the doctor's restrictions, then the adjuster and defense attorney obtain as much contradictory information from the employee as possible, including statements the employee gave to the medical providers, the information the employee gave to the employer, and the information the employee gave to the adjuster, or the employee's attorney gave to the adjuster. Once all the claims made by the employee as to the inability to work are documented, take a deposition from the employee as a further on record of the employee’s statements about the inability to work.
Once the employee’s deposition is complete, the defense attorney presents the video surveillance to the employee's attorney. After the employee and attorney view the video, then the employee's attorney is advised a copy of the surveillance tape will be shown to the medical provider(s).
If the video is sent to the medical provider(s) prior to the employee and attorney seeing it, such an action may be viewed as a discovery violation in some jurisdictions. Showing the video to the employee's attorney and the employee first keeps the employee's attorney from arguing to the workers’ comp board or court as to the video’s inadmissibility.
After the employee’s deposition describing all the restrictions, limitations and inability to work is documented, the quality surveillance video proving otherwise often results in the employee and employee's attorney wanting to make a quick and reasonable settlement of the workers’ comp claim.
The adjuster, employer, and defense attorney then consult on what course of action they want to take including fraud prosecution, recovery of benefits paid, the employee's voluntary resignation, nominal settlement, etc. (workersxzcompxzkit)
The adjuster begins by using proper medical management of the claim to get the employee back to work. If medical management has not returned the employee back to work, or there are red flags on the file, or information comes available indicating the injury may not be as severe as the employee claims, consider using surveillance. Surveillance when properly used can be invaluable to the adjuster in disproving the fraudulent workers’ comp claim.
Author Rebecca Shafer, J.D. Consultant, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. She can be contacted at: RShafer@ ReduceYourWorkersComp.com or 860-553-6604.
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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.
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