Possible Causal Relationships Considerations
Have you ever read a court decision on a workers' compensation case and had the reaction……. “what?” The following discussion of a court decision definitely creates a “what?” reaction in most people. A press release explained how the Wyoming Supreme Court overturned a lower court decision denying medical benefits to a man who claimed a spinal cord stimulator caused a hernia.
In 1993 James L. Ball slipped while walking into a walk-in refrigerator to get some milk. Mr. Ball claimed injury to shoulder, neck, back and right leg. He was awarded permanent total disability.
What? Yes – Permanent total disability for a foot slipping. The court description of the accident does not indicate Mr. Ball fell when he slipped.
(WcxKit)
Wyoming is a monopolistic state for workers compensation. You have to wonder if the state employee/work comp adjuster was asleep at the wheel on this one. The location of the accident in the walk-in refrigerator makes it most likely an unwitnessed event. There is no mention in the press release if Mr. Ball's accident was witnessed or if any investigation was done to confirm how Mr. Ball's foot slipping would have injured his shoulder, neck or back. A strain to the right leg is possible. As Mr. Ball had a spinal cord stimulator implanted in 2000, he definitely had an injury, but did the injury happen on the job? Anyway, the claim was accepted.
In 2006 the original spinal cord stimulator failed and a new one was implanted. In 2007, Mr. Ball states he was at home lying in bed when the second spinal cord stimulator caused him to experience a sensation that made him to stand up “real fast” then he fell down, causing a pain in the groin. [Another unwitnessed event?]. Ball went to a Dr. James Shaw who ordered a CT scan that confirmed an inguinal hernia.
Dr. Shaw stated: I would consider this a work-related problem based off the origin of the fall.”
What? Inguinal hernia's are normally caused (according to the medical book) by a:
1). defect at birth,
2). prolonged wear and tear from lifting, straining or coughing,
3). age related weakness of the abdominal wall,
4). history of previous surgery in the area.
Risk factors increasing the chances of the hernia developing include advancing age, straining to urinate or pass stools, severe or prolonged coughing and obesity. Mr. Ball's description of how the hernia occurred does not fit the medical literature. In rare cases a hernia can be caused by falling hard on a blunt object, but there is nothing in the press release that states Ball fell on any blunt object. While Ball clalimed the spinal cord stimulator malfunctioned, there is no mention in the press release stating it was ever confirmed the stimulator malfunctioned. If the spinal cord stimulator malfunctioned as claimed, there is no mention of Ball bringing a products liability claim against the spinal cord manufacturer. What? You have to wonder why no products liability suit was brought if the spinal cord stimulator did malfunction.
The Wyoming Division of Workers Safety and Compensation denied payment for the hernia treatment on the basis it was not related to the original 1993 injury. There is no mention in the press release whether or not the state employee/work comp adjuster had an independent medical examination done to refute the doctor's statement. Also, there is no mention in the press release whether or not the Division of Workers' Safety and Compensation did any investigation to determine if Ball was working somewhere else when the hernia occurred. What? You have to wonder why there was no investigation into other causes for the hernia.
Mr. Ball disputed the Division of Workers Safety and Compensation determination. The matter was referred for a contested hearing. At the hearing Ball contended he was entitled to medical benefits for the cost of the hernia treatment claiming the hernia in 2007 was causally related to the 1993 injury. The hearing examiner ruled in Ball's favor stating the hernia was caused by a fall, the fall was caused by the spinal cord stimulator, the spinal cord stimulator was implanted to treat Ball's chronic back pain.
The adverse finding for the Division resulted in their appealing the matter to the District Court. The District Court found the examiner was correct in its finding of fact, but ruled against Ball stating a hernia is a compensable injury only when it is the original injury. The District Court considered the hernia a second compensable injury which was barred. Ball appealed the District Court decision to the Wyoming Supreme Court.
The Supreme Court reviewed the work comp claim on whether the hernia occurred “in the course of employment” per the Wyoming work comp statutes. The Supreme Court ruled the position of Ball was in keeping with the language and context of the statute and with the legislative intent. Ball therefore received the medical benefits for the hernia.
Almost all states treat injuries that result from the original work comp injury as part of the original injury. For example: The employee had a verified work-related fall that caused a leg fracture. A week later the employee is on new crutches on his way to the doctor's office for his leg fracture, when he loses his balance. He falls and breaks his arm. The broken arm is causally related to the fractured leg. In most jurisdictions this is referred to as a “compensable consequence of the injury.”
In a similar vein, in a very recent New York case, a Cornell University employee, James Smith, had a compensable work-related back injury in 2001. Smith suffered depression that was brought on by the chronic pain related to the back injury. In 2007 Smith committed suicide. The New York State Appellate Court found “sufficient causal relationship” between the suicide, the depression, the chronic pain and the original work comp injury. The court has ruled Ms. Smith is now entitled to death benefits under the New York work comp law.(WcxKitz)
Causal relationships can be tricky. There needs to be in-depth investigation into any possible intervening events that would sever the causal link between the initial injury and the subsequent injury. If the employee can prove that the second event would not have occurred except for the original event (accident), the medical cost and associated indemnity disability cost will be owed by the work comp insurer.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.Contact: RShafer@ReduceYourWorkersComp.com
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Employers as well as employees have been known to commit workers compensation fraud…
The owner of a New York pizzeria
who employed three people off the books was arrested for workers compensation fraud, according to the New York State Insurance Department.
The man is accused of knowingly submitting false documentation to the New York State Workers Compensation Board stating he had no employees so he could avoid paying workers comp insurance. (WCxKit)
Investigators from the Insurance Department's Frauds Bureau and the Office of the Fraud Inspector General of the Workers Compensation Board discovered he actually employs two people who work inside the pizzeria and a delivery person.
The individual could be sentenced to up to four years in prison if he is convicted. He is charged with workers comp fraud and offering a false instrument for filing.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 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 International Federation of Chrysotile Asbestos Workers (FICAT) recently held a conference in Havana, with a clear agenda to oppose an asbestos ban on the pretext that the warnings about millions of asbestos victims are just a needless scare. (WCxKit)
According to the Health and Safety Department of the European Trade Union Institute (ETUI) , this pro-asbestos stance is backed by Cuba’s official central labor body and by members of the Athens-based international trade union organization World Federation of Trade Unions, which links together a small number of hardliners of the old central labor body controlled by the Soviet bloc. Most of the delegations at the conference came from different Latin American countries.
The asbestos lobby has long worked to stave off a global ban on asbestos. (WCxKit)
It is reportedly brandishing threats to jobs in order to broaden its leverage and get selected unions on-side – an action increasingly being orchestrated internationally through FICAT.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Each year you receive your bill for the next workers compensation policy year, and for many of companies, each year the bill is higher than the previous year. As you think about your work comp claims, you realize the claims for the current year were not any worse than they were for last year, or the year before. So why does your workers' compensation premium bill keep going up and up?
When the underwriter at the insurer looks at calculating your premium, they use what is known as an experience modification factor. This factor is a calculation used to raise or lower your premium based on the loss experience your company has had. If the loss experience has improved, the premium charged to your company goes down. If you have had more claims than before or the claim cost has gone up, your premiums go up.
The loss experience is based on two factors, frequency and severity. Now the insurance company does not control frequency of claims, your company controls frequency through how well you manage the safety program. As you think back to the previous years, you think “wait a minute, our safety program is working, the number of claims has declined, so why has my premium gone up?” The answer is the other part of the experience modification factor – the severity of the claims.
There is one thing your insurance broker and your workers compensation insurer will never tell you about the cost of your workers compensation premium. If they do a poor job in handling the claims, and spend more money on the claims than necessary due to a failure to properly investigate the claims or to return the employees to work, you get to pay for their incompetence. The underwriting department does not discount the severity factor because the claims office did a poor job.
If your next thought is: “I'm no expert on how to handle work comp claims, so how would I know if the claims office is doing a good job or overpaying the claims? There are ways you as the employer can gauge the effectiveness of the claims office.
The first thing the employer can do to reduce the severity of the claims is to report them to the claims office immediately. There have been numerous studies that show the longer the delay between the time of the accident and the adjuster contacting the employee, the higher the overall cost of the claim. By reporting the claim to the claims office immediately, you have reduced the amount of time between the accident and the adjuster contacting the employee.
Normally when the adjuster contacts the employee, the adjuster also contacts the employee's supervisor or manager to verify the facts of the accident. If you have a claims coordinator, have the claims coordinator keep track as to when your company hears back from the work comp adjuster. If you do not have a claims coordinator, have the person who reported the claim to the claims office keep track of when you initially hear back from the adjuster. Same day contact from the claims adjuster is best, next day contact is acceptable.
If your thought is: “We never hear from the adjuster after we report the accident,” that is a major sign that the adjuster is not investigating the claims. If the adjuster is not properly investigating the claims, you as the employer pay for it in your experience modification factor when claims that should be denied are paid, or claims that are fraudulent are paid.
There is a sure-fire way the employer can know if the adjuster was in contact with the employee the day the claim was reported to the claims office (or at least the next day). Pick up the telephone and call the employee. Ask the employee how the initial doctors office visit went and what the doctor thinks the employee's prognosis will be. Then an “oh, by the way, have you heard from the insurance adjuster yet?”will quickly tell you if the adjuster has made timely contact with the employee. Do this on ten claims in a row and you will soon know if the adjuster is giving your claims the proper initial claims handling. [Bonus – by contacting the employee you show the employee that the employer does care about their well being, which builds rapport with the employee, and diminishes the chances of the employee hiring an attorney].
If you want to do this on a large scale, the best program I have seen for worker feedback has been developed by Jennifer Christian, M.D., Webility's Distress & Dissatisfaction Detection System (3D's). Contact Doctor Christian at Jennifer.Christian@webility.md and mention you read about it on our blog. This programs helps employers find out early on whether the employee is having a problem and if so they can help fix the problem. Sometimes the problems are with the insurance company handling of the claim. These are easy to fix IF you know about them.
Another definite tip-off that the adjuster is or is not handling the claims properly is when the adjuster calls your office trying to arrange modified duty so the employee can return to work. If in the initial contact from the adjuster you are asked what light duty assignment you can provide the employee, you have an adjuster who is thinking about how to get the employee back to work, which lowers the amount of indemnity payments and the overall cost (severity) of the claim. A good adjuster will continue to explore light duty return to work until the employee is back at work. A poor adjuster will never ask about light duty return to work and will just pay the employee indemnity benefits until the doctor states the employee is fully recovered. When you bargain for lower-priced TPA or insurance claims adjusting services, consider that you want the adjusters to have the resources to DO this work, and offering the lowest possible price may preclude that – no matter what they say at the official presentation.
An easy way to get your work comp adjuster(s) on the ball in their claim handling is to ask for a copy of their service standards (Best Practices) for workers compensation. Advise the adjuster(s) that you will be reviewing your files to see if they are complying with the Best Practices. If by chance you are told they do not have a set of service standards, it is time for you to talk to your broker about finding another insurance company who is concerned about doing a quality claims handling job.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Have your say on new work health and safety regulations…
Tom Phillips, Safe Work Australia chair, recently announced the second phase of public consultation on the model work health and safety laws. (WCxKit)
Safe Work Australia will release the draft model Work Health and Safety Regulations and priority model Codes of Practice for public comment in December 2010 for four months.
Safe Work Australia is the national body developing model work health and safety laws with the aim of achieving the best possible approach to health and safety for all Australian workplaces. Safe Work Australia works in partnership with the Commonwealth, state and territory governments to deliver harmonized work health and safety laws across Australia by the end of December 2011.
The Model Work Health and Safety (WHS) Act was endorsed by the Workplace Relations Ministers’ Council in December 2009. To support the model WHS Act, Safe Work Australia has developed an exposure draft of the model Work Health and Safety Regulations, priority model Codes of Practice, a Discussion Paper and Consultation Regulatory Impact Statement to be released for public comment. The public comment period will close in April 2011.
Phillips said the public comment period will provide an opportunity for individuals and organizations to participate in the development of the model Work Health and Safety Regulations and priority model Codes of Practice and ensure their voice is heard.
"We need your views to ensure the model Work Health and Safety Regulations and priority model Codes of Practice are relevant to all Australian workplaces,” Phillips commented. "Model work health and safety laws will allow organizations to effectively manage workplace safety and work to one set of laws regardless of how many states or territories they are operating in. (WCxKit)
"This will increase profitability and productivity and most importantly, lead to improved safety for workers and greater certainty for employers," said Mr. Phillips.
Public submissions can be sent to submissions@safeworkaustralia.gov.au.
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
According to the Workers’ Compensation Act, 1979, businesses or organizations that have hired one or more workers on a full-time, part-time, contract or casual basis may need to be registered with the Saskatchewan Workers Compensation Board (WCB).
Some Saskatchewan businesses and organizations may not realize they should have registered with the WCB. That’s why the WCB is encouraging all businesses and organizations that are unsure if they should be registered to contact the WCB before Jan. 31, 2011. (WCxKit)
Employers coming forward voluntarily prior to Jan. 31 will not be required to pay any penalties or find themselves responsible for retroactive premiums.
After Jan. 31, 2011, employers who should be registered will be required to pay retroactive premiums for the previous three years as well as any late registration penalties. (WCxKit)
Peter Federko, chief executive officer of the WCB, explains that it is in the best interest of businesses to register with the WCB. “Our no-fault insurance program protects both employers and workers against financial loss due to workplace injury and disease.”
Businesses and organizations can register by:
Calling toll free 1-877-787-1888 or 787-1888 in Regina
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, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: Info@ReduceYourWorkersComp.com or 860-553-6604.
©2010 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 an employer, you must be vigilant in your efforts to protect your company from the few employees who do commit workers compensation fraud. Adjusters often refer to possible fraud in a workers comp claim as looking for “red flags.” A “red flag” is anything standing out from the ordinary.
Any one of the items on the following list of “red flag” do not prove a workers comp claim is fraudulent. However, if you have several “red flag” on a single claim, it’s a good idea to consult with both the adjuster and the SIU unit about the claim. (WCxKit)
More Common and Less Common
Fraud
“red flags” employees intent on committing fraud may use:
1. Late Reporting
a. If an employee is really injured on the job, it is unlikely the employee will wait days or weeks to report the injury.
2. Accident Details
a. The accident details are sketchy, vague or fuzzy.
b. The employee has difficulty in recalling what happened.
c. The employee changes the description of the accident when inconsistencies are pointed out.
d. The nature of the injury is not consistent with the nature of the work done by the employee.
e. The date, time and location of the accident is unknown or forgotten.
f. The accident details are inconsistent with the employee job duties.
3. More Than One Version of the Accident
a. The employee gives completely different versions of the accident to the employer and the adjuster and to the doctor.
b. The employee keeps modifying the story of what happened.
c. The employee leaves out pertinent information.
d. The accidents details vary from medical report to medical report.
4. Witnesses
a. There are no witnesses to the accident and the employee normally works around other people.
b. There are witnesses but their version of the accident differs from the employee's version of the accident.
c. The accident occurs at a location away from where the employee would normally be working.
d. The nature of the injury is unusual for the employee's line of work.
e. The employee's co-workers express doubt that the accident occurred.
5. Unhappy Employee
a. The employee is disgruntled about some aspect of his/her job requirements.
b. The employee was demoted or passed over for a promotion.
c. The employee is on the list to be laid-off.
d. The employee is on “positive improvement needed” status and is about to be terminated.
e. The employee has had numerous prior employers.
f. The “accident” occurs immediately prior to a strike, plant closing or the end of seasonal employment.
g. The employee is a new hire.
6. Monday Morning Claims
a. The employee has an early Monday morning accident before the supervisor or other employees see him on the job (accident occurred off the job over the weekend).
7. Injured Worker is Never at Home
a. The injured employee is not at home during the normal workday.
b. The employee is always sleeping when the adjuster calls or cannot be disturbed.
c. The employee's family member is vague or noncommittal about when you can reach the employee.
d. The employee is “away” but quickly returns all calls from a cell phone, not the home phone.
e. The employee uses the address of friends or family members and has no definite address or uses a Post Office box as an address.
f. The spouse or other family members do not know about the workers comp injury.
8. Financial Reasons
a. The employee's spouse is not working and drawing workers comp indemnity benefits, social security disability payments, welfare or unemployment insurance and the employee wants the same life style.
b. The employee inquires about a settlement early in the claim process.
c. The employee was having prior financial problems.
d. The employee is nearing retirement age.
e. The employee files for benefits in a state other than where the accident occurred.
f. In the states where an employee can collect workers comp indemnity benefits based on the amount of combined wages from both the workers comp employer and a second job employe.
g. The failure to report other work income while drawing indemnity benefits.
h. The employee took excessive time off just prior to the injury.
i. The employee is in the middle of a divorce or other family disturbance.
j. The social security number used by the employee belongs to someone else.
k. The employee applies for Social Security benefits before the injury occurs.
l. Income from workers comp, disability or other sources exceeds the employees prior after tax income.
9. Medical Care
a. All the injuries are subjective — pain without trauma, soft-tissue, emotional.
b. The employee changes doctors frequently “doctor shopping” or changes doctors when released to return to work.
c. The employee has excessive treatment for soft-tissue injuries.
d. The medical treatment reported by the employee is different from the medical care stated in the medical reports.
e. The nature of the medical treatment changes from one body part to another after the employee has been treating for a while.
f. The employee misses medical appointments.
g. The employee fails to show up for an independent medical examination.
h. The employee refuses or delays diagnostic testing.
i. Whiteouts, corrections, erasures on medical forms submitted by the employee.
j. Exaggerated pain symptoms.
k. The employee has a history of multiple workers comp claims and/or reporting subjective claims of injury.
l. The injury relates to a preexisting medical condition or health problem.
m. The medical reports provided by the employee appear to be second or third times photocopied.
n. The length of recovery is excessive for the nature of the injury.
10. Inconsistent Physical Ability
a. The employee who has been off work for a while has calluses on hands or grime under the fingernails
b. The medical reports reflect “muscular” “tanned” or other adjectives to reflect the employee is in good health.
c. The employee is unable to work due to the injury but is seen painting his/her house, mowing the lawn, carrying heavy objects, etc. (WCxKit)
d. The employee has a high-risk hobby or does other physical exertion activities.
e. Surveillance reflects physical activity greater than what is reflected in the medical reports.
f. You learn the employee is working elsewhere while drawing indemnity benefits, especially where the work requirements exceed the capabilities reflected in the employee’s medical reports.
11. Miscellaneous Red Flags
a. The employee is unusually pushy to settle the workers comp claim
b. The employee has extensive medical knowledge but no training in the medical field, or has extensive insurance terminology but no work experience in the insurance field.
c. The employee was referred by a friend who name he does not know to a particular doctor or attorney.
d. The employee is a part of a group of employees using the same doctor and the same attorney for their workers comp injuries.
e. The attorney's letter of representation is the same day of the injury or even dated before the “injury.”
Summary: Remember, even if the employee's claim has every one of these “red flag,” it still does not prove fraud. However, if the work claim has more than one of these “red flag,” you definitely want to bring in a fraud investigator to delve deeper into the claim. The more fraudulent claims you identify and deny, the lower your overall cost will be for workers compensation insurance.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 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 multi-year investigation by the Justice Department Office of Inspector General (IG) recently released declares that the federal prison industry that recycled computers and other electronics systematically violated health, safety and environmental laws.
Despite findings that officials willfully endangered thousands of prison staff and inmates, none will be prosecuted and most of the officials have retired without any sanction, according to Public Employees for Environmental Responsibility (PEER). (WCxKit)
The report validates concerns voiced by a Bureau of Prisons (BOP) safety manager, Leroy Smith, who first began raising alarms in 2001. The IG investigation undertaken in 2006 at the request of PEER and others looked at prison computer operations in eight states (CA, AZ, TX, KS, OH, PA, NJ and FL) during the six years from 2003 to 2009.
The report details that:
1. Prison and prison industry officials committed “numerous violations of health, safety, and environmental laws and regulations” in which “staff and inmates were needlessly exposed” to more than 30 heavy metals, particularly lead and cadmium
2. The dangers were known but ignored by officials who “concealed warnings about hazards” from the recycling operations. In one instance, officials disabled a factory’s fire alarm system for three years so that it would not be set off by clouds of toxic dust
3. While there is a “strong likelihood” that thousands of prison staff and inmates were exposed to excessive levels of harmful materials over the years the health effects are unknown because the prisons did no medical surveillance and did not keep required records of injuries and illnesses.
The IG stated that the majority of the violations had abated by mid-2009 but the most hazardous activity, glass-breaking of cathode ray tubes, ended due to “economic considerations” not safety concerns. However, the report warned that even this progress could be reversed by “lingering systemic problems such as lack of technical resources [and] inadequate oversight.” In addition, profound legacy contamination from years of dangerous operations at prison factories has yet to be assessed.
The report also cited “numerous” acts of illegality and misconduct by BOP officials, including “willful violations” resulting in the “endangerment of employees.” (WCxKit)
Although BOP is a unit of the Justice Department, DOJ took no action on any aspect covered by the IG report.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing.
Contact: RShafer@ReduceYourWorkersComp.com
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Simultaneously, several sets of different guidelines are in various stages of enactment in the New York workers’ compensation system. When in full force, these guidelines will surely change the entire structure of litigation at the WCB. But even now there is occurring insidious erosion which will lead to a year or more of confusion and incorrect decision making in the claim defense process. The problem is – the “Tyrannny of Words”.
There are, in fact, five different sets of guidelines, four involving medical treatment and one involving measurement of permanent loss of wage earning capacity. (WCxKit)
The medical treatment guidelines, formally published on 6/30/10, will go into full effect on 12/1/10.
The “Disability Duration Guidelines” are, at this point, only proposed. On 10/13/10, Robert Beloten, the Board Chair, sought “comment” on the proposed Disability Duration Guidelines. Beyond that, no date has been set for when these guidelines might go into effect, but it is felt that they will be in effect within one year.
What is causing confusion is the use of the words “guideline” and “medical”. Since all five sets are being discussed, and since none are fully in effect, many assume that there is on set of guidelines which covers both medical treatment and measurement of permanent partial disability. All five use the term “guideline” and the term “medical”. However, in the four treatment guidelines “medical” refers to ongoing treatment, regardless of extent of patient “disability”. In the Disability Duration Guidelines “medical impairment” refers to permanent conditions which have been the subject of medical treatment related to the injury of the claim, even if medical treatment has ceased. “Disability duration” measures the maximum weeks of payment for certain permanent injuries.
Although guidelines for disability duration presently have no set date for coming into effect, the section awarding benefits for non-schedule permanent partial disability IS in effect. (WCL, Sect. 15(3)(w) eff. 3/13/07) Awards are being made, even without proposed guidelines, using whatever sources of relevant evidence are available. (WCxKit)
Employers and claims units are advised to carefully determine what is being discussed or asked whenever the word “guideline”, “medical” or “disability” are used in the discussion of ongoing claims. The text of all guidelines is available on the WCB website.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. 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.
FREE TOOLS
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com.
Some employees turn out to be the proverbial "employee from hell." One of the biggest mistakes an employer can make is to hire the wrong person. A poor hire can have a dramatic impact on the cost of business operations, both from a workers compensation standpoint and from an overall management standpoint. The wrong employee in the wrong position is an accident (or alleged accident) waiting to happen.
With the downturn in the economy over the last two years, many employers have had to downsize their operations. Most of those employers have taken the reduction in staff as a handy way of ridding themselves of the problem employees. Granted, some of employees who have been laid off work are great employees. However, if an employer has the choice of which to let go between the excellent employee and the problem employee, it will be the not-so-good employee that is laid off. (WCxKit)
While it is not always easy to recognize the potential problem employee during the hiring process, there are some definite clues an employer can look for to identify employees that pose headaches for your company in the future. Pre-employment personality testing and psychological testing can be used to identify several types of employees from Hell, including:
1. Mr. Always Unhappy – This potential employee will always find something to complain about. If he is talking, he is gripping, but he is not a constructive critic. He will find fault with every initiative of the employer. Mr. Unhappy will destroy morale of everyone in his department by keeping everyone in a continuous agitated state.
2. Ms. Happy Independent – This potential employee has no financial obligations. She still lives with her parents or someone else who supports her. Ms. Independent does not need her job so she never strives to do her best work.
3. Mr. Duck Out of Water – This potential employee is often drowning in financial obligations and has a family to support. Mr. Duck OutofWater desperately needs a job, so he is willing to take any job offered to him. His prior position was one of authority, respect and much higher pay. If he is hired, he will be grateful for the job until he realizes that he no longer has the authority and command he had in his prior job. Mr. OutofWater if he stays around long enough will morph into Mr. Unhappy.
4. Mr. Low Production – When this employees prior employer had the opportunity to rid themselves of him, they did so. Whether it is a lack of motivation or a limited intellectual capacity, Mr. Low Production will never produce either the expected quantity or expected quality that should come from the job you have available.
5. Ms. Anti Establishment – This employee opposes everything management wants done. She knows for a fact that all businesses are corrupt and will exploit her. Ms. Anti Establishment will know more about how the company should be run within a week of being hired than her manager will ever know.
6. Ms. Something For Nothing – From a workers compensation standpoint, this is the most dangerous employee. She has collected on one or more work comp claims at every one of her former employers. She will fake an injury shortly after being hired and will use every possible tactic she can to not have to return to work any time soon.
Small employers normally do not have the staff to undertake pre-employment screening and do not have the expertise to administer personality testing and psychological testing. There are pre-employment screening vendors that are available to any employer. The pre-employment screening can be done at the facility of the vendor, at your business or on the internet websites of the pre-employment screening vendors. While you have to pay for the testing of some people you will decide not to hire, the cost of testing is minor compared to the cost of hiring the employee from Hell.
There are three primary types of psychological testing. They are:
1. Personality testing that provides insights into the values, ethics and behavioral characteristics of the potential employee.
2. Aptitude testing that evaluates a job candidate's reasoning skills. The test measure verbal, numerical and abstract thinking.
3. Motivational testing that identifies the areas of interest and importance to the job candidate and identifies what motivates the person.
Personality testing and behavioral testing adds an element of objectivity to the pre-employment screening process. The pre-employment assessment testing will provide the employer with information on the aptitudes and behavioral traits of the potential employee. The pre-employment assessment can provide the employer with information on the ethics, values, honesty and integrity of the employee candidate. Often the behaviors identified in the personality testing can be confirmed through reference checks and background screening. (WCxKit)
If you hire any of the employees from Hell, not only do you create personnel problems for your company, you increase the probability of workers' compensation claims. There is a definite correlation between having problem employees and higher incidents of work comp claims. Almost all questionable work comp claims arise from employees who have performance issues. By identifying the potential problem employee and not hiring them, the employer can save the hassles and headaches they create, and work comp cost, too.
Note: obviously these thoughts are tongue in cheek, sort of, so take them with a grain of salt.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: RShafer@ReduceYourWorkersComp.com or 860-553-6604.
©2010 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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