In some claims, there is a disproportionate length of time out of work, and the time out of work is longer than medically necessary. For example, if an employee is injured June 1, and is healed June 10, he/she should be back to work June 10. However, often an employee is out of work for weeks or months longer than medically necessary. This costs you money. The injury coordinator's (IC's) task is to bring the length of time out of work back down to match the length of time an employee is medically unable to work. This saves you money. The injury coordinator must manage every aspect of the claim to ensure the employee is not out of work longer than medically necessary. The proactive worker's compensation program addresses the following areas before an accident: 1. Develop an employee communication program including get well cards, written post injury plans detailing what steps should occur within the 24 hours after an injury. 2. Train supervisors in post-injury response so the response is automatic, and they know exactly what to do, who to call, where to take the employee for medical care right away, and so they know what paperwork is necessary. 3. Develop medical care coordination by establishing relationships with medical clinics. Have the doctors to your facility, and you go to the medical facility to make sure it is clean, timely, and is the type of facility your employees will receive good quality care. 4. Make nurse triage part of the process. At some TPAs and insurance companies, a nurse triage is used on every claim. If it's an extra charge, consider it closely as it may reduce overall costs. Give it a try, include it in your Account Handling Instructions. For example, a Senior Nurse Reviewer receives a call about the claim as soon as the claim occurs. Sometimes, the arrangement is set up so the Sr. Nurse Reviewer is brought in on initial intake at the TPA to make sure length of disability is appropriate and followup care is explained to the employee. TPA's such as Broadspire have Sr. Nurse Reviewers, and also firms like Coventry make those services available. 5. Interview settlement evaluation firms such as www.Impairment.com so your company can challenge impairment percentages that seem too high. Don't just accept the impairment ratings provided by the claimant's doctor, have a close look at the percentage and what AMA guidelines are used. Become familiar with the ratings and schedules in your jurisdiction, don't rely on the TPA to know it – you should get to know it too! (workersxzcompxzkit) 6. Make sure the employee takes Work Ability Form to doctor, the doctor completes the medical restrictions, the restrctions get to the Injury Coordinator then to the supervisor, and a light duty position is offered to the employee as soon as they are medically able. 7. Collect supervisor and witness reports immediately after the injury while memories of the incident are still fresh. Make sure the statements are signed. If possible take a photo of the accident location to keep the facts and descriptions in perspective. 8. Assign transitional duty starting day and time. Be creative in finding tasks for all employees who are injured. You take a "wish list" approach, asking supervisors and others if they had a wish list, what would they like to have done. Any productive task is better than not task or the employee will feel isolated and left out, no longer part of the team. And, after a couple weeks sitting home, they won't want to go back to work any longer, so find transitional duty from DAY ONE, if at all possible. 9. Implement a communication program from the first day by calling the employee at home the evening the injury occurs. Employees should get YOUR message first! They'll get someone's message, so make sure it's YOUR message. Institute get well card programs, first day phone call programs, call home programs, weekly meetings at the operations centers, include employees in safety meetings and other in-plant meetings so they feel like part of the team. 10. For employees that will never return to your workforce, if you cannot accomodate their restrictions, use a firm such as www.NationalJobFinders.com to help them find work. In many cases, they may not want to work, you'll be able to show non-compliance (no desire to work).
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 860-786-8286.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker 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
A significant portion of large workers' compensation claims can be reduced or eliminated through the proper use of a Return-to-Work program. The Risk Management Department should establish a transitional duty program and be sure it is implemented by all departments. It should start with the new hire package, explaining that all employees with a workers' compensation injury are expected to return to light duty work as soon as their doctor will permit them to do light duty work.
The adjuster, or the nurse case manager depending on how your program is set-up, should contact the treating physician the day the claim is reported and let the physician know light duty work is available to the employee. The longer the employee is totally off work, the more accustomed the employee becomes to watching daytime TV and living on the indemnity benefit. With the prompt return to work doing a light duty/modified duty/transitional duty program, the employee does not get acclimated to living on the workers' compensation indemnity benefit.
Every company can establish a transitional duty program. One long-haul trucking company with a self-funded their workers' compensation program, required their drivers who were placed on light duty and could not drive to report in to the terminal each day. They were then transported to a local Goodwill store where they sorted donated clothing. With their light duty clothes-sorting job they could sit, stand, walk around, etc. as needed to comply with their doctor's instructions on their activity. The drivers were paid the equivalent of what they would have made driving and the trucking company got a charitable contribution to write off. More importantly the transitional duty program prevented the drivers from expecting to draw work comp indemnity benefits for a long period of time.
When an employee is on transitional duty, make sure to follow the doctor's physical limitations closely. One way to escalate the cost of your work comp claims instead of reducing them is to have an employee's supervisor ignore the doctor's limitations and put the employee back to work on the employee's regular duties before the doctor has released the employee to full duty. In such a case, the employee may become upset and decide to retain an attorney. (workersxzcompxzkit)
Instead of getting the employee back to work sooner, the attorney – in order to increase his percentage fee – works to keep the employee off work longer than would otherwise be necessary. In addition, in the states where he can, the attorney will direct the employee to another doctor who the attorney knows will justify the employee staying off work. Of course, this new doctor for the employee will in the end give the employee a higher disability rating then the employee would normally have received from the original doctor.
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 860-786-8286.
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TD Calculator: www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php Return to Work in Unionized Companies http://reduceyourworkerscomp.com/Return-to-Work-Programs-Unionized-Companies.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker 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
For an employer, the return to work process is no less daunting than that same process is to the injured worker. While claims professionals and attorneys are adept at managing a successful return to work, employers are ill prepared to navigate the various rules, forms and procedures necessary to accomplish what should be a very simple task. The good news is the correct process is entirely consistent with good business practices, a productive workforce and the Americans with Disabilities Act. The most ineffectual programs are those offering no real work, make-work if you will, with the focus on getting benefits suspended rather than returning the employee to productivity. With advance preparation, the employer can prepare the way for a successful return to work after injury or, at the very least, prepare the evidence needed at trial for a court ordered suspension of income benefits. ESSENTIAL STEPS 1. Employer Attitude – The course of your WC claims are determined in the minutes after the injury happens. This includes supervisor attitude, accident investigation and medical care. An injured worker met with derision, resentment or impatience is not likely to look forward to a return to work with restrictions. 2. Control of Medical Care – For those states with employer control or employer input into the pool of physicians eligible to treat injured workers, selection of physicians with familiarity or sophistication in occupational injuries will provide a competent diagnosis and treatment plan as well as a more accurate assessment of whether the injured worker can safely return to work without presenting a danger to himself or others. 3. Job Descriptions – An accurate assessment of each occupation to be performed should be prepared by the employer well in advance of the occurrence of any injury. These descriptions should be expressed in ergonomic terms so the treating physician knows precisely what the employee will be required to do when returning to work. 4. Team Concept – Return-to-work programs are not the sole province of the HR/Safety Departments. Successful programs rely as well upon supervisory personnel and the active support of other employees. 5. Transitional Duty Agreement – Before the return to work happens, management, supervisory personnel and the injured worker should discuss the job description approved, the work to be performed and understand that management will not direct or request the employee to work beyond the stated restrictions. Nor will the employer tolerate the employee working voluntarily beyond the restrictions. 6. PATIENCE! – The employee returning to work while still suffering the effects of an injury is understandably concerned with potentially making the injury worse while continuing to work. If the employee has been out of work for an extended period of time s/he will undoubtedly experience muscle stiffness associated with the deconditioning that comes from inactivity. The employer on the other hand tends to focus on the work at hand and may not be mindful of the legitimate concerns of the employee. The Transitional Duty agreement will help one anticipate and understand the concerns of the other. (workersxzcompxzkit) 7. Continuation of Medical Care – In most states, a return to work does not end the employer's ongoing obligation for medical care. Understanding that the employee may need the reassurance from the treating physician that continued work is therapeutic or, at worst, not harmful, will assist the employee in continuing to work with the proper mindset. For the employee who does not really want to work , timely medical appointments provide the employer with contemporaneous evidence of the employee's capabilities and effort. Be prepared to take these steps irrespective of the employee's attitude and you will have prepared your file for litigation. Be prepared to take these steps and you will find that those employees that want to work, respect the employer effort while those that do not want to work will understand that a WC claim won't be a free or easy ride. Author: Kevin O. Skedsvold, J.D. We welcome our guest writer, Kevin O. Skedsvold, a 20-year Insurance Defense Litigation attorney with Skedsvold & White in Atlanta, GA; CEU instructor for the Georgia Insurance Commissioner's Office and Wickstrom Insurance and Risk Training Center. Chairman of Compworx LLC, a workers' compensation process management platform. He can be reached at kskedsvold@skedsvoldandwhite.com or 770-392-8610. www.skedsvoldandwhite.com. Follow at: www.Twitter.com/WCEmployersatty FREE TOOLS: WC Calculator: www.reduceyourworkerscomp.com/calculator.php WC 101: www.ReduceYourWorkersComp.com/workers_comp.php Follow Us On Twitter: www.twitter.com/WorkersCompKit Return to Work in Unionized Companies http://reduceyourworkerscomp.com/Return-to-Work-Programs-Unionized-Companies.php Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers' comp issues. Workers' compensation was formerly referred to as workman's compensation. ©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� �
Q. We have an employee out of work due to a workers’ compensation injury. Does the employee’s time off count against his Family and Medical Leave Act (FMLA) leave? on-the-job injury or illness qualifies as a serious health condition under the FMLA, the workers’ compensation absence and FMLA leave can run concurrently, assuming that your company has provided the injured worker with the proper notice and designation.
A. Be aware that at some point the employee’s healthcare provider may certify that the employee is able to return to work in a light-duty position. If your company offers the employee light-duty work, the employee does not have to accept the position if he is also eligible for FMLA leave. If the employee declines the light-duty position, the time off from work would represent FMLA leave, and the employee would likely not qualify for workers’ compensation benefit payments during this period.
He will, however, still be entitled to continue unpaid FMLA leave until he is able to return to the same or equivalent position or has exhausted the 12 weeks of FMLA leave.
Finally, keep in mind that the injured employee may also be a qualified individual with a disability and have rights under the ADA.
Guest Author: Carl Lehmann, JD
Carl Lehmann is a member of Gray Plant Mooty’s Employment Law practice group and is co-chair of the firm’s Higher Education practice team. Carl’s practice includes advising employers in personnel-related matters, including terminations, discrimination and harassment issues, defamation claims, employment and independent contractor agreements, noncompete and confidentiality agreements, wage-hour compliance, voluntary and mandatory affirmative action policies, and insurance issues. Carl’s practice also includes assisting higher education institutions with various legal compliance issues including student disciplinary proceedings, accreditation, tenure and promotion, faculty manuals, Title IV and Title IX compliance, student privacy, and campus security matters. He can be contacted at Carl.Lehmann@GPMLaw.com
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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 workman’s 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
Pending Workers’ Comp Policy Change for Police and Firefighters
The New Brunswick (Canada) government is leaning toward the elimination of a current three-day waiting period for workers’ compensation benefits for police and firefighters, but does not expect to offer related legislation this fall according to OHS Canada.
“Our premier and our government are committed to it, but at the same time we have to be responsible in how we move forward,” said Donald Arseneault, New Brunswick’s minister of post-secondary education, training and labor. The principle of removing the three-day wait period for police officers and firefighters, while supported by the government also has a lot of opposition to it.”
The waiting period was put into place in the early 1990s during a time when the province’s workers’ comp board (now WorkSafeNB) was facing a “significant financial crunch,” according to Shelly Dauphinee, director of policy and planning for WorkSafeNB.
The wait period policy, applying to all claimants, requires injured workers receive no compensation benefits for the three days after an injury. However, there are two exceptions:
1. Employees who are off work for three weeks or more working days are reimbursed for the initial three days.
2. Workers who are hospitalized as in-patients obtain benefits immediately.
The New Brunswick Police Association, are lobbying the government to eliminate the wait period for police officers and firefighters. Dean Secord, the association’s president, says the union was told legislation would be introduced this fall to bring about the change.
According to Arseneault, there is no known timetable when the necessary legislation would be put forward.
According to Secord, the rationale for police officers deserving an exemption is they cannot legally refuse unsafe work under the provincial Police Act, thus hindering their ability to stay away from possible injuries in the first place. (workersxzcompxzkit)
The Canadian Federation of Independent Business, in its presentation to the board, labeled the wait period as a “fair and reasonable way to manage costs – especially since the system is 100% employer paid.”
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 860-786-8286.
We are accepting short articles* (300-800 words) on WC cost containment. Contact us at: Info@ReduceYourWorkersComp.com. *Non-compensable.
The Job Search Challenge
Employers are often faced with the challenge of not being able to bring all injured employees back to work in their workforce. Many employers just do not have appropriate light duty positions for their injured workers. The challenge is, then, locating suitable positions for these permanent partial disability (PPD) cases. A permanent partial disability case is one where the injured worker has permanent restrictions. I’ve found employers are not aware of the firms specializing in finding REAL open positions for their injured workers. This is not an easy task in this economy; cases can remain open if there are no suitable positions available, regardless of the cause. A diligent job search firm is different than home-based employment or charitable work.
What Does a Job Search Firm Do?
Simply put, a job search firm finds open positions for injured employees. Job finding or job search locates positions for permanent partial disability (PPD) case files.
It allows you, the employer, to quickly and efficiently reduce your overall workers’ comp costs by reducing indemnity (lost wage) expenses. Job finding is not necessarily appropriate for all workers’ comp PPD cases. It is appropriate when the case has challenges such as geographical location, physical limitations or financial restrictions.
What Claims Qualify for Job Search?
Adjusters are generally working on a caseload of 100-150 files at any time. When time is precious, it is natural for adjusters to devote their time to files where they can make some headway. The claims a job finding company takes are those many adjusters are unable to make significant progress on, such as carpal tunnel, lower back soft tissue damage, or rotator cuff injuries.
A job search service is often used to find appropriate positions for construction, transportation, shipping and other physical, relatively high-paying positions in states having wage loss exposure after a case reaches Maximum Medical Improvement (MMI) and the employee still has work restrictions.
Why Turn Claims Over to Job Search?
Going back to the case load of your average case manager, if an adjuster has 100-150 active files, 30% of cases may be difficult to advance to the next level. For this reason, these files can go on much longer than necessary.
It takes 20+ hours per successfully scheduled interview and an average of 4.5 interviews per case to successfully close a case. It would be impossible for an adjuster to include this in their daily or weekly routine. And, spending all their time on 30% of the most challenging claims would not be an effective use of an adjuster’s time.
A firm whose business is to locate jobs for employers has an established network of contacts and employers. They also cold-call employers in appropriate geographical and industry niches until they find an unlisted, hidden position suitable for each worker. This type of firm keeps extensive notes and maintains a record of everything from the initial pre-interview session with HR personnel, to the interview results and follow-up.
Job finding is appropriate for about 30% of cases and works best in any state where the insurer has wage loss exposure after the employee has fully recovered and reached MMI.
In other words, it is most appropriate for PPD cases. Certainly, it is better to put your PPD cases into the hands of a job hunt service as soon as possible after MMI is established. The sooner the better because every day you wait to find suitable employment opportunities, the more indemnity payments will be lost. �
Success Story and Savings Potential
A PPD case in Michigan costs an average of $72,000.00 PER CASE between months 13-36. These are cases that have ALREADY been active for 12 months. If case managers waited 12 months before sending a case to a Job Finder they would still save an average of $65,000.00 per case. (workersxzcompxzkit)
Resource
One job finding company is: http://www.nationaljobfinders.com/. They can be reached at 207-583-6464. Call to discuss whether this strategy would work for some of your “old-dog” claims.
Author: Rebecca Shafer, J.D. coaches and trains mid-market and national accounts to do assessments, data review, benchmarking, and development of Workers’ Compensation Programs. Projects center on development of training and education programs, document design, evaluation and integration of insurance claims administration and TPA services. Contact her are: RShaferB@ReduceYourWorkersComp.com
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s 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
14 Steps To Implementing Your Transitional Duty Program A company's Transitional Duty Program is established to provide continuous employment for employees who cannot perform all job functions temporarily because of a work-related injury or illness.
A good company lets their employees know their goal is to ensure every employee remains an active part of the workforce. The Three Phases of Implementing a TD Policy Explain the TD Work Assignment Include information on compensation benefits to injured workers' compensation Discuss the purpose of periodic reviews Explain the Transitional Work Assignment 1. The company attempts to find a job that is similar to the employee's original job. 2. Participation in the Transitional Duty Program is a condition of employment. 3. If an employee's original job cannot be modified to accommodate transitional duty restrictions or if another job cannot be found at the original work-site then the employee may be transferred to a nearby location for the transitional duty period. 4. All transitional duty assignments occur during regular business hours of the location. 5. If the original job unit cannot accommodate the employee with a transitional duty assignment, the employee works at no cost to the new location. 6. If the employee does not want to perform the transitional duty position offered, eligibility for 12 weeks of unpaid leave under the Family and Medical Leave Act may be possible. 7. However, employees do not receive workers' compensation benefits for FMLA leave. Such employees should consult the Human Resources Department for information about this option. TD Information on Compensation for the Injured Employee 1. Employees on transitional duty assignment are ineligible for overtime. 2. If transitional duty is unavailable, the employee is paid for lost work time in accordance with applicable state law. 3. If transitional duty is available and the employee refuses the assignment, lost wage benefits are denied if allowed under state law, because the employee voluntarily withdrew from the workforce, not because of the injury. The Purpose of Transitional Duty Periodic Review 1. In no case will a transitional duty position last more than 120 days and the employee must always be progressing, improving. 2. When employees reach maximum medical improvement, they return to their original positions. 3. If an employee reaches maximum improvement and is unable to resume the pre-injury position, if required by the Americans with Disabilities Act, the company will offer another position, with or without a reasonable accommodation, if one is available. (workersxzcompxzkit) 4. If no other position is available, the employee will be separated from the company.
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 860-786-8286. We are accepting short articles* (200-300 words) on WC cost containment. To: Info@ReduceYourWorkersComp.com. *Non-compensable.
WC Best Practices IQ Test: http://www.workerscompkit.com/intro/ WC Books: http://www.reduceyourworkerscomp.com/workers-comp-books-manuals.php Return to Work in Unionized Companies http://reduceyourworkerscomp.com//Return-to-Work-Programs-Unionized-Companies.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers' comp issues. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Employer Rates: Workplace Safety, RTW and Employer Cost Reduction
The 2010 assessment rates announcement to employers by the Workers’ Compensation Board (WCB) of Nova Scotia offered an opportunity to remind employers of the importance of injury prevention and return to work as a means of reducing the cost of workplace injury insurance especially in tough economic times.
“It’s more important than ever to focus on creating a safety culture in Nova Scotia,” said Nancy MacCready-Williams, CEO. “Safety is good business, and improvements in safety and return-to-work programs translate into lower costs for workplace injury insurance – which means employers can save money. But, more importantly, it means employees stay safe on the job.”
Almost half (46%) of the 18,000 employers covered by the WCB will see their rate go down or stay the same next year. Home support, metal tank manufacturing, framing, and hardware and paint stores are among the industries seeing rate decreases.
Rates will increase for 54% of employers. Second-hand merchandisers, tire shops, shipbuilding, and concrete and cement manufacturing are among the industries seeing significant increases.
A 1,000 fewer people were seriously injured (where they lost time from work) since 2005. Injured workers are returning to work in a safer and timelier manner following their injuries. Many employers are seeing their rates go down because of improvements they are making in safety and return-to-work programs in their workplaces.
“Employers are in an incredible position of influence when it comes to workplace safety. It is important for them to show leadership and to commit to making safety a priority,” said MacCready-Williams. “We know that the greatest cost of injury is not financial at all. We are already seeing signs that the economy will recover, but the 29 people who died at work in Nova Scotia last year are lost to their families forever. That is the real tragedy.”
Again this year, the WCB is issuing surcharges to employers whose claims costs are significantly and consistently higher than their industry peers. Surcharges help to more fairly allocate the costs of Nova Scotia’s workplace injury, and they provide strong encouragement for employers to make improvements in their safety and return-to-work performance. (workersxzcompxzkit)
In 2010, 77 employers – less than 0.5% of employers covered by the WCB – will be surcharged. Of those, 38 will be surcharged for the first time, 18 for the second time, and 21 for the third time. To be surcharged, an employer’s claims costs must be at least three times their industry average for at least four consecutive years.
Surcharges start at up to 20% of the industry rate, and they are cumulative – up to an additional 20% of the industry rate each year. A surcharge is applied after an employer has received two previous warning notices.
Last week, first warning notices were being sent to 175 employers, and 92 employers were to receive their second warning that a surcharge may be applied to their rate if their claims costs do not come down.
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 860-786-8286.
We are accepting short articles* (200-600 words) on WC cost containment. Contact us at: Info@ReduceYourWorkersComp.com. *Non-compensable.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers’ comp issues.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Kansas High Court Strikes Down Requirement that Injured Workers Make Good-Faith Effort to Find Appropriate Work Following Injuries How Would You Decide?Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers’ Comp Law Center reports.
Here’s What Happened
Bergstrom worked as a production janitor for an employer, a manufacturer of plastic plumbing parts. She began to experience pain in her back after picking up a heavy garbage can. She experienced severe pain the following day and was told to see a nurse practitioner, who prescribed pain medication. Bergstrom was assigned to a less strenuous job, sorting parts, but was unable to do the job because she could not sit and bend for an extended time.
She then saw an orthopedic specialist, who told her to stop working and apply for Social Security benefits. She saw a number of other physicians, including another orthopedic surgeon and a psychologist. Later, she attempted to return to work for the employer, but was assigned to a position where she experienced severe back and leg pain after three hours. She left work and was terminated by the employer.
After several hearings, the administrative law judge awarded some permanent disability, but the Board reduced the award to a ten percent permanent partial disability (PPD) to her body as a whole, concluding that Bergstrom had not exercised good faith when she failed to perform alternate job duties the employer offered her after her injury. Bergstrom contended the Board erred when it applied a good-faith effort requirement not contained in K.S.A. 44-510e.
K.S.A. 44-510e generally provides PPD should be expressed as a percentage to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker earned after the injury.
The statute also provides an employee shall not be entitled to receive PPD compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury. The Board indicated it had followed several Court of Appeals decisions that required a good faith effort be exerted when considering post-injury job searches. Here the Board found that Bergstrom had not put forth a good faith.
Here’s How the Court RuledHere’s How the Court Ruled
In Bergstrom v. Spears Mfg. Co., 2009 Kan. LEXIS 838 (September 4, 2009), in a split decision, the Supreme Court of Kansas, on transfer from the state Court of Appeals, reversed and remanded in relevant part. Initially, the majority noted that in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), the Kansas Court of Appeals had examined the legislative intent underlying K.S.A. 1988 Supp. 44-510e(a) and had concluded that the statute implicitly contained a requirement that injured workers exercise good faith in attempting to mitigate their wages lost to work impairments. The majority observed that in Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), the Court of Appeals expanded on its ruling in Foulk. The majority said that under Copeland, the fact finder was required to make a determination as to whether the injured worker had made a good faith effort to find appropriate employment. If a finding was made that a good faith effort had not been made, the fact finder was directed to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the worker’s capacity to earn wages.
The majority indicated that it could find nothing in the language of K.S.A. 44-510e(a) that required an injured worker to make a good-faith effort to seek out and accept alternate employment. The majority observed that the legislature had provided for a means to compare the worker’s pre-injury and post-injury earnings, coupled with a percentage of impairment determined by a medical professional. It had further placed a limitation on PPD compensation when the employee “is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury” [K.S.A. 44-510e(a)]. The legislature had not required the employee to attempt to work.
According to the majority, Foulk and Copeland had been decided contrary to the principle that an appellate court must give effect only to express statutory language, rather than speculating what the law should or should not be. The majority said it would not add something to a statute not readily found in it. (workersxzcompxzkit)
Chief Justice McFarland dissented, noting that if the Court of Appeals in Foulk incorrectly read legislative intent into the statute, the legislature had certainly had the opportunity to correct that error at some point in the 15 legislative sessions since the Foulk decision. The chief justice argued that this was even more compelling in the workers’ compensation context since-according to the chief justice-there was perhaps no other statutory scheme subject to such constant legislative scrutiny than the state’s Workers’ Compensation Act. McFarland indicated that within the 2005-2006 legislative session, more than 80 bills related to workers’ compensation had been introduced. He concluded that participants in the workers’ compensation system should have stability and predictability in the law, yet the majority failed to consider such reliance “in cavalierly overruling a 15-year-old statutory construction for no reason other than it would have applied the rules of statutory construction differently if faced with the issue in the first instance.”
See generally Larson’s Workers’ Compensation Law, § 81.01.
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.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers’ comp insurance issues.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
16 Steps for Implementing a Transitional Duty Checklist Transitional duty programs are put in place to get your injured employee back to work as soon as possible. This is good for both the company and the employee. Even in a limited capacity, the sooner you can get your injured employee back to work the better. It maintains a stable workforce and helps the employee recover more quickly. Workers' Comp Kit (http://www.workerscompkit.com/) provides a checklist form to indicate how to begin a transitional duty program. Important things a company should do to implement an effective transitional duty program include: 1. Knowing about your states' law in regard to returning an employee to work. 2. Making sure all employees receive the workers' comp policy. 3. Explaining employee rights, roles and responsibilities. 4. Informing treating physicians about your transitional duty policy. 5. Getting treating physicians to approve transitional duty jobs. 6. Hold weekly meetings with the injured employee returning to work for a transitional duty position. During this time therapy and treatment may still continue. As the employee heals, do the following: 1. Remind supervisors of the employee's physical limitations so they do not push him or her to exceed said limitations. 2. Identify transitional duty jobs creatively. Make a wish list of things you'd like to have done but don't have time to do. Consider off-site, work-hardening modified duty programs if you do not have any positions at your workplace. 3. Visit worksites to determine tasks similar to the employee's existing job. 4. Jobs should be meaningful and not demeaning, demoralizing or punitive for the injured employee. 5. Be sure to train the employee in the new position, if needed. 6. Send the transitional duty job offers first class, certified mail with confirmation receipt and enclose a stamped envelope. 7. Be sure not to violate union contracts; work with the unions. For more information, read this article aobut light duty and the unions: http://reduceyourworkerscomp.com//Return-to-Work-Programs-Unionized-Companies.php. 8. Get medical restrictions from the employee's doctor even if the employee isn't quite ready to return to the workforce. 9. Continue to pay the injured employee at their same rate. Consider doing so even if the employee works partial hours to avoid paying lost wage benefits; in many states (e.g. NY) this will reduce future settlements. Be sure to advise your third-party administrator of this. (workersxzcompxzkit) Consult with your insurance broker's claim analyst about this also. 10. Ask the employee for feedback on the transitional duty position – this should begin three to five days after you send the transitional duty offer letter. 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 860-786-8286.
WC IQ Test: http://www.workerscompkit.com/intro/ WC Books: http://www.reduceyourworkerscomp.com/workers-comp-books-manuals.php WC Calculator: www.reduceyourworkerscomp.com/calculator.php Follow Us On Twitter: www.twitter.com/WorkersCompKit Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers' comp issues. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
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