A Texas jury has awarded $20 million to the family of one man who was killed and a pair of men who were severely injured following a natural gas pipeline explosion while performing demolition work.
The industrial accident lawsuit was filed by Genaro Castillo and Luis Moreno, and the family of Meliton Lerma, who were caught in a natural gas explosion at a Hilcorp Energy gas plant outside of Vanderbilt two years ago. (WCxKit)
The pipeline explosion took place when the men, employed by A&R Demolition to work on an abandoned part of the facility, struck a pocket of natural volatile hydrocarbons while using a cutting torch. The men worked for RCS Demolition, which was sub contracted the job by A&R.
Lerma died after receiving burns to half of his body. Moreno received second- and third-degree burns over close to 60% of his body, and Castillo had burns covering 10% of his body.
According to the plaintiffs, they were not properly warned of the danger of fire and explosion, and during discovery, Hilcorp officials contend that the pipes in that portion of the facility were never properly vented or purged prior to the demolition project. However, A&R and Hilcorp stated that they told the plaintiffs’ employer, RCS, that there was to be no fire used on the job.
Attorneys for the plaintiffs noted that A&R’s own employees also used cutting torches on the job. (WCxKit)
The HarrisCounty jury found both A&R and Hilcorp negligent and awarded the men and their families the payout. However the jury assigned a small portion of the liability to RCS and the plaintiffs themselves.
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@ReduceYourWorkersComp.com.
On March 24, 2009, a class action lawsuit was filed in Colorado against Wal-Mart, Concentra Health Services (Wal-Marts preferred medical provider), Claim Management, Inc. (Wal-Marts third party administrator), and Home Assurance Company (Wal-Mart's insurance company). The lawsuit, brought by several injured Wal-Mart employees, is known as Gianzero v Wal-Mart Stores, Inc., et. al., US DCT (D. Colorado) No. 09-cv-00656 REB BNB. While lawsuits against deep-pocket Wal-Mart are common, this one has a different twist. The injured Wal-Mart employees are claiming that Wal-Mart violated the Federal Racketeer Influenced and Corrupt Practices Act (RICO) by denying any part of their claims.
In Colorado (which has a very active plaintiff's workers compensation bar), the employer is allowed to select the treating physician for an injured employee. Wal-Mart, by RICO, Wal-Mart and Workers Compensation the act of defending itself against workers compensation claims with doubtful compensability, or by accepting the physician's assessment of the employee's injury over the employees own assessment of the injury, is accused in the lawsuit of conspiracy with the insurance company and the claims adjusters to “dictate, withhold, delay, deny and/or interfere with” the medical treatment the employee's attorney or the employee desires. (WCxKit)
Plaintiff attorneys in the workers compensation section of the Colorado Bar Association did their homework to locate an attorney to lead this lawsuit. Instead of selecting an attorney from the state of Colorado, they selected one of the leading class action attorneys in the country, Solomon Cera of the San Francisco office of Gold, Bennett, Cera & Sidener. A section of the Gold, Bennett, Cera & Sidener website reflects the numerous class action settlements they have obtained from the $320 million settlement of the Rubber Chemicals Antitrust Litigation down to the modest settlement of $10 million from the Textainer Sec. Litigation. All total, Mr. Ceras firm has “recovered” over $1.6 billion (that's billion with a B) from employers and their insurance companies. Mr. Cera has already indicated that if his firm should prevail in this matter, that he would like to pursue the same litigation in numerous other states including Texas, New York, Arizona, Wisconsin, Oklahoma and Iowa.
Initially there was a stay on certifying the class action, but on July 1, 2010, U.S. District Judge Robert Blackburn approved the plaintiff's motion for class certification. The certified class of Wal-Mart employees may total as many as 6,900 employees in Colorado who can alleged that Wal-Mart, its insurance company, third party administrator and preferred medical provider conspired to deny them medical treatment for their on-the-job injuries.
While Wal-Mart obviously has a lot of resources to fight this class action lawsuit, what makes it a dangerous lawsuit for Wal-Mart, and all employers if Wal-Mart loses the lawsuit, is:
1. If the employer loses on the allegation of a RICO violation (even a small, unintended violation), the employer and/or the employer's insurer is liable for triple damages under RICO
2. The exclusive remedy of workers compensation will be severely compromised
3. Even a baseless RICO-based lawsuit will expose the employer and insurer to extensive legal fees and expense defending the lawsuit, placing the insurer in the position of either paying groundless and fraudulent claims, or spending even larger amounts defending it self.
4. If RICO lawsuits over workers' compensation become common place, every employers work comp premiums will skyrocket, putting a lot of small employers out of business.
5. You combine triple damages from a RICO win with thousands of employees; the payday for a successful plaintiff's attorney is astronomical.
In December, 2009, plaintiffs attorneys in the Gianzero v. Wal-Mart class action lawsuit and class action lawyers everywhere got a boost in their effort to turn work comp claim denials into RICO lawsuits. In a Michigan case, the US Supreme Court denied a petition by the defendant to rehear a Sixth Circuit Courts in Brown vs. Cassens Transport Company. The Sixth Circuit Court had ruled the plaintiffs could proceed with a workers compensation lawsuit based on alleged violations of RICO.
In the Wal-Mart case, the plaintiffs having an affidavit from a physician who worked for Concentra Health Services which states he felt pressured by his superiors to change his recommendations for the medical care of Wal-Mart employees. If true, the plaintiffs may have a shot at the RICO compensation. It is alleged that Concentra doctors were given “protocol notes” on how to handle work comp claims of Wal-Mart employees including types of treatment that were not covered by work comp and instructions to call the claims office before referring the employees to specialist or before requesting more than five physical therapy sessions.
Employers and insurers, if they are not already doing so, should review their policies to be sure their efforts to control the cost of workers compensation do not cross the line into denial or delay of legitimate injury claims. There are several steps employers and insurers can take to protect themselves from a RICO-based lawsuit. This includes:
1. Insurers should review with their claim staffs the need to pay every valid claim while documenting precisely why a non-compensable claim is denied. Also, and if any medical treatment is requested, and denied, the claim file needs to be precisely documented as to why the medical treatment requested was not appropriate.
2. A thorough investigation should be completed and documented in the claim file if the claim is questionable, suspicious or fraudulent before the claim is denied.
3. Employers and adjusters, who are not doctors, should not make the determination of the necessity of any type of medical care. A determination of the necessity of medical care should be made by a qualified physician.
4. Employers should make sure all their vendors – insurers, third party administrators, defense attorneys, nurse case managers and other managed care vendors, and medical service providers – are aware of the ramifications of RICO.
5. When the necessity of medical care is debatable, the claims office needs to have a broad list of available doctors for independent medical examinations. (It is common practice by work comp adjusters to stick with two or three doctors they are familiar with and who have provided prompt and accurate independent medical evaluations. While both the adjusters and doctors have acted in good faith, a limited number of doctors for independent medical examinations allow plaintiffs lawyers to argue the adjuster is in collusion or conspiring with the doctor to deny the employee the medical care the employee or the employees attorney wants). It is also good business sense to have a large number of qualified doctors to turn to when the employees medical care is in question. (WCxKit)
The resolution of Gianzero v. Wal-Mart Stores, Inc. make take several years as the litigation is complex and the discovery necessary by both sides of the class action lawsuit will be extensive. In the meantime, smart employers and insurers should be reviewing their claim handling practices to make sure the denial of non-compensable claims and the denial of inappropriate or unnecessary medical treatment are based on documented facts, not just a desire to protect the employer from medical cost they do not owe.
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@ReduceYourWorkersComp.com.
With the economy either in recession or in a very slow recovery, have you wondered what would happen to the workers compensation claims against your company if your company were forced to file for bankruptcy?
The answer depends on whether your company provides for workers compensation by purchasing an insurance policy or by self-insuring. If your company covers its workers compensation exposure by purchasing an insurance policy, the bankruptcy of your company will have limited impact on your workers comp claims. The responsibility for those claims remains with your workers comp insurer.
However, if you cover your workers compensation claims through a program of self-insurance then the relationship between bankruptcy and workers compensation becomes much more complex. If an employer files for Chapter 7 bankruptcy, the employer will be liquidated and the self-insurance program ends. (There is no further need for the workers comp insurance as the employees are all terminated). (WCxKit)
Under a Chapter 7 bankruptcy, (in the states adopting the federal Bankruptcy Code — some states have not adopted it) workers comp claims are treated the same as wages owed to former employees. The workers comp claims are considered as unsecured creditors against the employer and are not given any priority over creditors.
Under a Chapter 11 bankruptcy, the self-insured employer has two choices. The first choice is to assume its existing self-insurance status, with the bankruptcy court approval. The employer continues to pay both new workers comp claims and claims filed prior to the bankruptcy filing.
The second choice has a totally different outcome for the employee's and their workers comp claims. If the employer's self-insured claims are sizable and will be a burden to the employer or a hindrance in returning the company to profitability, the employer may elect to end its self-insured status and purchase workers comp insurance for workers comp claims occurring after the bankruptcy filing. Under the option of ending the self-insured program, the workers comp claims are treated as unsecured creditors against the employer and are not given any priority over creditors.
If it sounds like the employees are out of luck when the self-insured employer files for a Chapter 7 bankruptcy, or ends its self-insured program as a part of the reorganization under a Chapter 11 bankruptcy, that's not quite the case. Most states have a special fund, usually called a Guaranty Fund, in which the insurance carriers and the self-insured companies paid either an annual assessment or a surcharge against their workers comp book of business.
The Guaranty Fund is normally set-up for the sole purpose of administering the claims of an insurer or a self-insured company who goes bankrupt. When a self-insured becomes insolvent, the funds in the Guaranty Fund are used to pay the workers compensation benefits. These benefits are only available to the employees who workers comp claim prior to the employer's bankruptcy filing and the self-insurance program has been terminated. Any workers comp claims occurring after the filing of Chapter 11 bankruptcy reorganization would be paid by the new insurer.
Depending on the jurisdiction where the bankruptcy occurs, the Guaranty Fund may require the employee to file a claim in the bankruptcy court as a creditor of the employer. Any proceeds received by the employee for their workers comp claim from the liquidation of the employer are considered an offset against the benefits that would be paid by the Guaranty Fund. (WCxKitz)
In summary, if the employer files a Chapter 11 bankruptcy and obtains the bankruptcy court's permission to continue the self-insurance program, the bankruptcy has little impact on the workers comp claims. If the employer files a Chapter 7 bankruptcy or files a Chapter 11 bankruptcy and elects to end the self-insurance program, the workers comp claims become the liability of the Guaranty Fund.
Please do an internet search for a case study of the bankruptcy of the Johns Manville Corporation to see how workers comp claims alone can bankrupt a company.
The information in this blog is general in nature and is not meant to provide legal advice or guidance. If you have questions, please consult with your legal counsel in regards to the bankruptcy laws and workers compensation in your state or jurisdiction.
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.
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©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.
South Carolina Adopts "Bunkhouse Rule." In a case of first impression on the issue of the bunkhouse rule [Pierre v. Seaside Farms, 2010 S.C. LEXIS 288 (Feb. 16, 2010), the Supreme Court of South Carolina held that the workers injuries occurred within the course and scope of the employment where a migrant worker sustained a right ankle fracture when he fell on a wet sidewalk outside housing provided by his employer at a remote farm on St. Helena Island, South Carolina.
The worker had not actually started work for the employer, having been hired earlier on the day of his fall. The housing was supplied to the worker at no charge, in part, because of the remote location of the work site. After the injury, the worker was terminated from employment since he could not perform the work duties and he filed a claim for workers compensation benefits. The hearing commissioner determined that the worker had not sustained a compensable injury because he was not injured during the course and scope of his employment. (WCxKit)
The supreme court reversed. According to the court, whether a worker was contractually required to live on the employers premises was not necessarily as important as whether the practical circumstances required that he or she live there. Examining decisions from several other jurisdictions, the South Carolina high court determined that the worker in the instant case was essentially required to live on the employers premises by the nature of his employment and was making a reasonable use of the employer-provided premises at the time of his accident. The court also indicated that the workers injury was causally related to his employment in that it was due to the conditions under which he lived, i.e., a wet sidewalk outside his building. See Larson's Workers Compensation Law Ch. 24,[1] n9.1]
Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law and reprinted with permission.
©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.
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.
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©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.
Many injured workers and not a few attorneys forget that under the workers compensation statutes of most jurisdictions, it is insufficient to show that an injury occurred at the workplace, the injury must be "accidental." The discussion of this core issue, found in Chapter 42, of
“Larson's Workers Compensation Law” has been updated and revised.
Generally, "by accident" means an "unlooked for" mishap or untoward event that is not expected or designed. Some jurisdictions draw a distinction between the "unlooked for" cause and the "unlooked for" result. (WCxKit)
For example, in Shay v. Rowan Salisbury Schools, 2010 N.C. App. LEXIS 1310 (July 20, 2010), a divided Court of Appeals of North Carolina reversed an award of benefits to a teacher whose knee "gave out" as she ascended the stairs to her classroom. Noting that there was nothing on the stairs that cause the injury and that the teacher had neither slipped nor lost her balance, the court relied upon prior decisions within the state that required an accidental event, not an accident result (the unanticipated injury).See Ch. 42 of “Larson's Workers Compensation Law” (WCxKit).
Other notable events and articles can be found at the Lexis Nexis Workers Compensation Community.
Copyright 2010 LexisNexis. All rights reserved. This material is excerpted from Larson’s Workers Compensation Law. Reprinted with permission.
©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 Georgia court ruling means a trucking company will pay the heirs of a worker $5.4 million.
Mack Pitts, who was working as a spotter/flag-man for Archer-Western Contractors at the Atlanta International Airport, was killed in June of 2007 when a fellow employee ran over him with a dump truck. (WCxKit)
According to SafetyNewsAlert.com, Sarah Okoro, a driver for A & G Trucking, positioned her truck to back up without waiting for a signal from Pitts.
Pitts used his flags to provide Okoro with a stop signal and then turned his attention to another driver. Okoro ignored the signal and started backing up.
Other trucks reportedly sounded their horns to let Okoro know that Pitts was behind her truck, but she continued to back up.
By the time Pitts realized Okoros truck was coming in his direction, it was too late. The truck hit him, and Pitts died from his injuries.
Pitts heirs sued A & G Trucking for negligence.
At trial, testimony concluded that Okoro violated a number of safety rules immediately before hitting Pitts, including:
1. entering the area before being signaled to do so by a spotter
2. failing to remain still after the spotter directed her to stop
3. backing up without receiving a signal to do so by the spotter, and
4. backing up without locating the spotter.
The trial court awarded Pitts’ heirs $5.4 million. The company appealed.
A & G claimed that the trial court should have prohibited cross-examination of Okoro regarding her employment application. Okoro testified that she had no experience operating dump trucks prior to her employment by A & G.
According to additional testimony, an employment application entered into evidence claimed she had prior experience. Okoro stated the application wasn’t in her handwriting.
The company later admitted that Okoros actual application was misplaced and that a manager filled out an application for her as part of a workers compensation audit.
An appeals court stated the trial court did nothing wrong by permitting Okoro to be questioned regarding the application and affirmed the previous verdict. (WCxKit)
The company has again been ordered to pay $5.4 million.
(A & G T rucking v. Pitts, Court of Appeals of GA, No. A10A1096, 11/5/10.)
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@ReduceYourWorkersComp.com.
Gone are the days of mailing the Employer's First Report of an accident to the insurer's claims office. A three or four day delay in starting the claim due to the mail service is not an acceptable claims handling practice like it was a couple of decades ago. Today, with the internet, the claims report will be in the claims office within seconds of it being sent by the employer.
With electronic reporting of claims of claims available 24 hours a day, 7 days a week, 365 days a year, the employer can submit the claim at any time. Therefore, the best time for the employer to report an injury claim or a reported occupational illness is immediately upon learning of the event. Fast, accurate reporting of the claim benefits both the employer and the employee.
When the injury occurs, the employer's first and foremost duty is obtain the appropriate medical care for the employee. It's the employer operates in a jurisdiction where the employer selects the medical provider, the employee should be directed to the nearest medical facility appropriate for the injury. If the employer is in a jurisdiction where the employee can select their own medical provider, a list of recommended medical providers should be provided to the employee to select from. When the employer shows immediate concern about the injury to the employee, a higher level of communication about the injury throughout the claim will be established.
There are several benefits to reporting the claim immediately. They include:
1. It lowers the cost of the claim – studies have shown the faster the claim is reported, the lower the overall cost of the claim.
2. A study by Firemen's Fund reported a 3-day delay in reporting a claim added an average of 16% to the medical cost and 38% to the indemnity cost, and increased attorney involvement by 50%.
3. A study by Hartford Insurance Company showed a week's delay in reporting the work comp claim increased the overall claim cost by 10%, and a month's delay in reporting the work comp claim increased the settlement cost of the claim by 48%. Furthermore, the Hartford study showed the longer the delay in reporting the claim, the higher the probability of litigation.
4. A study by the National Council on Compensation Insurance found that litigated claims cost 40% more to settle than non-litigated claims.
5. The claims office cannot accomplish anything until the claim is reported – the claims office can get started with their investigation immediately when the claim is reported immediately. (Your claim handling agreement with the insurer or the third party administrator should specify all employees will be contacted the same day the claim is reported to the claims office).
6. The employee, the supervisor and any witness memories are fresh and important details are not forgotten.
7. Witnesses to the accident are available.
8. If an inspection of the accident scene is needed, the accident scene is more likely to be unchanged than it would be later.
9. If the injury involves equipment failure or machinery failure, expert assistance can be used to establish and maintain subrogation rights.
10.The immediate reporting of the claim allows the adjuster and the nurse case manager the opportunity to take prompt cost reduction steps.
11.The employee can receive the right medical care by having the managed care provider involved in the claim from the start. Trying to change the medical treatment plan of a doctor after the doctor has been treating the employee can result in a disruption of care, confusion or even attorney involvement.
12.It shows the employee you care about the employee's well being.
13.It allows for the establishment of a modified duty return work process before the employee can contemplate how long he/she can be off work.
14.It perpetuates the employee's return to a normal lifestyle of working a regular schedule.
15.It minimizes the interruption of your business.
The immediate reporting of claims allows the adjuster to investigate and validate the compensability of all claims. It allows for immediate medical intervention while providing the appropriate medical care. The immediate reporting of claims also protects the insurers right of recovery from any responsible third party. Also, the immediate reporting of claims puts the employer and the claims office in charge of the claim, preventing a medical provider or plaintiff's attorney from usurping the direction and control of the claim.
Every department manager and every supervisor should be trained to immediately report all claims to the employer's work comp claims coordinator. If the employer does not have a work comp claims coordinator, the supervisor or manager for the employer should immediately complete the Employer's First Report of Injury and electronically submit it to the claims office. When the claim is severe, the claims coordinator or department supervisor should telephone the claims office with the information on the claim. To insure compliance with the immediate reporting requirements, the timely reporting of work related injury should be a component of the supervisor's performance evaluation and salary increase. (WCxKit)
The immediate reporting of claims will reduce the medical cost, will reduce the indemnity payments, will reduce the employees time away from work, will lower the claim administration cost and reduce the possibility of attorney involvement. The immediate reporting of claims is an essential step every employer should take to control workers' compensation cost.
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@ReduceYourWorkersComp.com.
Even companies with the strongest safety programs experience some workers compensation claims. When an injury occurs, the immediate action taken by the employee’s supervisor or co-workers has an impact on the outcome of the claim.
Implementing the next two phases of employment involvement helps to manage claims efficiently and get workers back to work sooner.
The Injury Occurrence
The employer must require a tight post-injury process by following these five principles:
1. Obtain immediate medical assistance for the employee – send the employee to designated doctor or medical facility if statute permits.
2. Do not permit employee's with minor injuries or soft-tissue strains to wait to obtain medical assistance – most will end up going to the unapproved hospital emergency room or their own doctor.
3. While the employee is in-route to the treating physician, advise the treating physician of any temporary jobs you can offer during recovery.
4. Advise the treating physician of modifications you can make to the existing job to accommodate the work restrictions the physician gives the employee.
5. Have a goal of returning all employees to work within 1 to 3 days after the injury unless they are medically unable to perform any role for the employer.
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@ReduceYourWorkersComp.com.
15 Post Injury Claim Process Activities Every Employer Can Do
Too many employers end their involvement in the workers compensation claim when they send the employee to the doctor. A bad mistake – one resulting in a steady increase in the amount of your workers compensation insurance premium.
The employer needs to have an established post injury process to include:
1. Report the claim to the insurer, third party administrator or self-insured claims office immediately. Ideally the supervisor or your workers compensation claims coordinator reports the claim to the claims office while the employee is still enroute to the medical provider. Or, you can start the process by calling nurse triage, a great way to make sure the employee gets the RIGHT kind of medical treatment. In some cases, the injury will not turn into a claim by using nurse triage.
2. Complete the Employer's First Report of Injury and any other state required paperwork on the claim. If the injury is severe and the employee is unable to return to work within the waiting period, provide the claims office with necessary wage information for the calculation of indemnity benefits.
3. Advise the claims office of the claimant's prior history of workers compensation claims. The adjuster's approach to the claim varies significantly between the employee who never had a workers compensation claim and the employee who with 15 workers compensation claims in the last ten years.
4. Provide the adjuster with relevant information about the employee. In many situations this may include employee information such as employment application, job description, list of medical absences, list of disputes with employee/employer disputes.
5, Review your transitional duty program and find a job the employee can do within the treating physician’s restrictions. Have a job bank with tasks in multiple departments set up and ready to go, so there is no delay in placing every injured employee in a transitional duty task. In most states, it is best to pay as close to their original pay as possible to reduce indemnity payments.
6. Be sure the employee's supervisor (and co-workers if needed) is available to discuss the accident and injury with the claims adjuster and to assist the adjuster with the claims investigation.
7. Don't alienate the employee – show empathy to the employee. When employees feel the company does not care about them and their injury and the company owes them, the claim gets ugly if employees feel it is time to stick it to the employer.
8. Maintain an open dialogue – call the employee at home to show your concern and to offer assistance on processing the workers compensation claim with the insurance company. Address any employee problems or issues right away. Also, call the employee on a regular basis until s/he is back at work. Make this contact procedure the same for all employees.
9. If an attorney representing the employee contacts you, notify the claims adjuster immediately.
10. Immediately dispute any invalid or fraudulent claim. Assume every employee who reports an injury is injured, but when you notice things don't add up, let your adjuster know. Using nurse triage services greatly reduces fake injury reporting because a nurse specialized in triage will ask many questions about the medical condition, and most employees faking an injury will look for easier prey.
11. If the employee has a questionable claim, or a subjective claim for neck or back injuries, and immediately goes to the attorney advertising workers compensation on television, or a plaintiff's attorney-oriented doctor known for excessive disability ratings, advise the employee immediately of your intention to fight the claim as the attorney and/or doctor has a history of inflated claims
12. Monitor the state filings by the adjuster and any other claim related paperwork.
13. Monitor the Workers Compensation Board decisions – that means, reading them carefully, not just filing them away. Be ready to protest any finding or order you feel is unfair to you as the employer as all decisions have time limits for disputing the decision, with some time limits as short as 15 days. (WCxKit)
14. Monitor the medical progress reports to be sure the treatment is appropriate – for example – no physical therapy for the low back when the injury is a cut finger.
15. Always advise the adjuster when the employee returns to work – the same day. Double-check to make sure the indemnity payments stop when the employee returns to work.
Stay involved with the adjuster, the employee and the medical providers. As long as it's an open claim, it can affect your experience rating, so dropping the claim on the adjuster's desk is the WORST thing an employer can do. Ask your broker's claim VP and the adjusters to discuss the open claims during a roundtable discussion often, perhaps bi-weekly.
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@ReduceYourWorkersComp.com.
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