EEOC Speaks Out on Workers Compensation ADA Obligations

Employers Must Begin Interactive Process for Return to Work Sooner Than Thought
Dated: December 4, 2014

[WorkCompRoundUp is authorized to provide this information on behalf of EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD.]
EEOC’s Aaron Konopasky, JD and Jennifer Christian, MD Provide Guidance on When Employers Must Start Discussion Regarding Return to Work Accommodations

 

This may be surprising news for some readers: In workers’ compensation, MMI should not be viewed as the trigger for ADA-related protections and obligations.

 

Background: A common practice in workers’ compensation claims management may not be legal. Employers / claims organizations that postpone the reasonable accommodation process until an injured worker’s medical condition has reached MMI (maximum medical improvement) may be violating the ADA, now that the definition of “disability” has been broadened. Prior to MMI, if medical restrictions have been established by the treating physician, employers often decide whether to offer temporary transitional work without involvement of injured workers. If not, the workers remain out of work – and may end up losing their jobs. Jennifer Christian, MD, MPH who chairs ACOEM’s Work Fitness & Disability Section, asked Aaron Konopasky, JD, PhD, a senior attorney advisor to the EEOC about this. She was surprised to hear that the ADA does apply at any time – whenever a medical condition has the potential to significantly disrupt an employee’s work participation. This means that injured workers will need to be active participants in their employers’ stay-at-work and return-to-work decision-making process. Christian and Konopasky agreed to co-author a brief summary of the way these two programs interact during the post-injury period, which appears below. Please forward this on to anyone who needs to know.

 

In the Worker’s Compensation context, ADA-related issues can arise at any of several points along the injury management timeline. As a practical matter, employers should be pro-actively evaluating and managing Worker’s Compensation and ADA legal issues concurrently.

 

This is because an employer’s reasonable accommodation-related obligations begin as soon as the employer knows that an individual worker is having trouble at work because of a serious medical problem. By definition, if a doctor informs the employer that a worker has medical restrictions/limitations due to a work-related condition, whether or not the employee is actually working, the employer is now aware that a medical problem is having an impact on the employee’s ability to work. If the condition has the potential to significantly disrupt the employee’s work participation, the employer should immediately engage the worker in an interactive process to look for a reasonable accommodation under the ADA.

 

Although the employer can stop at this point to determine whether the individual is a “qualified individual with a disability,” it may not be worthwhile. Since employees with workers’ comp injuries are already employed at the time of injury, one can presume they meet the requirement of being “qualified” for the job. And, under the much broader standards established by the ADAAA, any conditions serious enough to require medical restrictions/limitations for more than a few days or weeks (and even some conditions that have not yet caused any work disruption) are likely to meet the definition of an ADA “disability.” An extended inquiry regarding the applicability of the ADA could result in unnecessary delay during a critical period.

 

Thus, whether or not the worker’s condition is stable and has reached maximum medical improvement (is at MMI) has no relevance, either (a) to the time when the employer’s obligation to engage in the interactive process begins or (b) to the time when a worker should be considered a qualified individual with a disability under the ADA. For more details about specific times when the ADA may apply, read below.

 

1. At the time a person is injured.
No matter whether the resulting condition is already stable or is still evolving, the ADA may require the employer to provide a reasonable accommodation that would enable the individual to perform his or her essential job functions, unless doing so would involve significant difficulty or expense. Examples might include specialized equipment, removal of non-essential job functions, and special scheduling. Individualized assessment is a key precept of the ADA, so a blanket policy is not appropriate. Employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA. It should be noted, though, that the ADA cannot be used to deny a benefit or privilege to which the employee is entitled on a separate basis. If, for example, the individual has other types of leave available at his or her discretion, whether paid (such as vacation leave) or unpaid (such as FMLA leave), the employer cannot deny that leave based on the fact that he or she could remain on the job with a reasonable accommodation.

 

2. While recovering out of work due to injury
The ADA may apply as soon as the worker’s condition becomes stable enough that on-the-job reasonable accommodations might allow the individual to perform the essential functions of the job (whether or not there has been a formal declaration of MMI). A blanket policy is not appropriate at this juncture, either. At this point, the employer should re-engage the interactive process to determine whether a reasonable accommodation would allow the individual to return to their usual job. As mentioned above, employers might also choose to reduce job demands or productivity expectations on a short-term basis, although this would not be required by the ADA.

 

3. When the individual has exhausted his or her leave and workers’ compensation benefits, and is still unable to return to the original position, even with an on-the-job reasonable accommodation.
At this point, whether or not the medical condition has reached MMI, the employer should consider other forms of reasonable accommodation, such as additional unpaid leave or, if the individual is not expected to regain the ability to do the essential functions of his or her current position, reassignment to a vacant position (if one is available). Again, a blanket policy is not appropriate.

 

In summary, legal obligations under Worker’s Compensation and ADA legal issues should not be assumed to be sequential, because they may run simultaneously. Duration is not the key issue; the main issue is the nature of the condition and its impact on the ability to function at work.

 

 

CLARIFICATION To MEMO dated December 4, 2014
Dated: December 11, 2014

The EEOC’s Aaron Konopasky and I were glad to see many thoughtful comments in response to our message about the ADA in workers’ compensation last week in the forums where it was posted. Our summary was primarily written to dispel two common myths:

  1. In workers’ compensation, the time to think about the ADA is at MMI. This is NOT true. MMI is late among several points in the post-injury timeline when the ADA needs to be considered.
  1. The ADA’s requirement for an interactive process doesn’t apply in decision-making about transitional work assignments. This is NOT true. Injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

 

However, based on the comments we have received, we want to clarify that the ADA has several other significant implications for how employers should respond to existing employees who develop health problems. The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another. The fundamental purpose of the ADA’s employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved — whether workers’ compensation, FMLA, sick pay, or disability insurance programs. A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

 

Here are 5 more practical implications for management of ALL types of health-related employment situations:

 

  1. As the Federal agency that enforces the employment provisions of the ADA, EEOC’s biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work — doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers — should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

 

  1. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer’s vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation — even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

 

  1. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

 

  1. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers’ compensation—

 

A.  Temporary Total Disability (TTD) Benefits – There is little difference between cash payments under workers’ comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

 

  1. The doctor wrote “no work” because their patient’s medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better;
  2. The doctor wrote “no work” because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis;
  3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily.
  4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work.

 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

 

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits -These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

 

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a “usual” 90-day limitation policy that provides for an individualized assessment of the individual’s situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee’s TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

 

 

Please note that this material is an informal discussion and does not constitute an official opinion or interpretation of the EEOC.

 

 

Aaron Konopasky, J.D., Ph.D
Senior Attorney Advisor
ADA/GINA Policy Division
Equal Employment Opportunity Commission
Email: aaron.konopasky@eeoc.gov

 

Jennifer Christian, MD, MPH
President, Webility Corporation
Chair, Work Fitness & Disability Section
American College of Occupational & Environmental Medicine
Email: Jennifer.christian@webility.md

 

If you would like to hear directly from the EEOC, inquiries can be submitted by mail to:

EEOC Office of Legal Counsel
131M Street, NE
Washington, DC 20507

 

Download A Printable Copy of This Memo

Different Strategies for Return to Work

 

Most Employers Have Poor Advanced Planning for Injuries
 
There are several different strategies an employer can utilize to return injured employees to work as quickly as the employee is medically able to do so.  Unfortunately, many employers wait until they have an injured employee before they think about return to work methods that can be used.  The approach of ‘we will make the injured employee a receptionist and have him/her answer the phone’ does not provide the employer with much productivity from the injured employee. This approach also comes up short if the employer has two or more injured employees at the same time.
 
There is a better approach. We strongly recommend for the employer to prepare for future injuries by having a transitional duty return to work program in place before it is needed.  A transitional duty job program will significantly reduce the lost productivity caused by a workers’ compensation injury and will decrease the work claim cost, both indemnity and medical expense. 
 
 
Transitional Duty
 
The transitional duty program provides modified duty jobs to the injured employee, modified jobs the employee can perform while the employee recovers from his/her injury.  By anticipating the future need for a transitional duty program you can prepare for when an injury occurs.
 
An established transitional duty program will expedite the employee’s return to work, especially in situations where the employee does not want to return to work. The established transitional duty program can also serve as a counterbalance to when the employee has retained an attorney, and the attorney is trying to keep the employee off work in an effort to drive up the claim’s settlement value.
 
 
Create Bank of Transitional Duty Jobs
 
The first step is to create a job bank of modified duty / transitional duty jobs.  By studying your prior history of injury claims you can identify the type of injuries that occur most often and prepare transitional duty jobs for them.  For instance, the most common injury situation is the strain/sprain back claim. Often the medical provider will allow the employee to return to work as long as they do not lift over X pounds or bend or twist.  The employer can prepare for this situation by reviewing the different jobs where back injuries might occur and studying how each job can be modified to eliminate lifting/bending/twisting.
 
A second most common injury situation is a hand/arm/shoulder injury with the medical provider restricting the use of the body part.  The employer can again review their various jobs and analyze how each job might be performed using only one hand.
 
 
Create Wish List of Projects & Tasks
 
Another way to create or establish transitional duty jobs is to have your supervisors and department managers create their wish list of work, projects and tasks they would like to accomplish, but have not completed because of lack of personnel. The injured employee can often do tasks that need to be accomplished, but get delayed because no one is available to do them.
 
If your state allows you to select the medical provider for the injured employee, your chosen medical providers should be educated that you always have modified duty jobs available for the employee.  If the employee selects the medical provider, a telephone call to the medical provider’s office should be made to advise your company has transitional duty jobs available.  A list of potential jobs, with the general physical requirements of each job, should be faxed to the employee’s medical provider for the doctor’s review, prior to the employee’s appointment.  
 
 
Success Requires Management Participation
 
When the employee arrives on the first day of the modified duty job, the employee’s supervisor or manager should meet with the employee.  This gives the supervisor or manager the opportunity to explain how important the employee is to the company, to reassure the employee that their job is not in jeopardy, to explain carefully how the transitional duty job differs from the employee’s prior responsibilities and that the transitional duty job is within all work restrictions stated by the medical provider.
 
The details of the transitional duty job assigned to the injured employee should be conveyed to the workers’ compensation adjuster and to the nurse case manager assigned to the claim, if there is one.
 
If the injured employee’s regular job cannot be modified enough to comply with the work restrictions given by the medical provider, an option is to place the employee in a different job within their regular department, or to place them in a different job in another department.  By having previously created a job bank of modified duty jobs, the placement of the employee in a position within the employee’s medical restrictions is made much easier.
 
 
Return to Work Placement Companies Can Assist
 
Return to Work placement companies can often assist a small employer who is unable to modify the work performed to accommodate the injured employee.  Return to Work placement companies normally work with non-profits or charitable organizations to place the employee in a light duty job.  This keeps the employee active and reduces the physical deconditioning injured employees often incur.
 
Through this article we have discussed the return to work strategies and discussed different approaches to transitional duty jobs.  A slightly different perspective should be taken with the employees.  Instead of referring to your transitional duty return to work program, name your transitional duty program “the remain at work program”.  This removes the assumption that an injury claim can result in time off work and emphasizes the intent of allowing all injured employees to remain on the job.
 
By having a transitional duty program in place, all injured employees will know prior to an injury ever occurring that the employer expects them to return to work as soon as they are medically able to do so.  The employee will benefit by remaining active and achieving a higher level of income, and the employer benefits by reduced workers’ compensation claims cost and higher employee productivity.
 
 
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com
 
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com
 
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.  

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional about workers comp issues.

How to Measure Your Return to Work Program Success

 

For every day an injured employee is out of work, the cost of the workers’ compensation claim increases. Therefore, it is of critical importance to actively manage your claims using techniques designed to return injured workers to active work status as quickly as medically possible. This is true whether they return to active or modified duty. At the same time, you must be able to track and know exactly how well the return to work process is proceeding.
 
Return to Work (RTW) Ratio

How do you calculate whether injured employees are returning to work within an appropriate time frame or if they are out on comp for weeks at a time? The Return to Work Ratio (RTW) measures the effectiveness of your transitional duty program. The ratio calculates how long it takes employees suffering a lost time injury to return to work in either a transitional duty assignment or full duty. The RTW Ratio calculates total lost days and total claims to show the percentage of employees that have returned to work within the first few days after the injury. The RTW Ratio helps you categorize lost work days to ensure that employees aren’t off work too long.
The RTW Ratio accurately assesses how well your company manages the return to work process. The RTW Ratio allows you to calculate lost days quickly and see at a glance how well you are doing. The graphic visualization is helpful and motivational. Add new injuries to constantly update the ratio calculation to see how well you meet the goal of having 95% of employees returning to work within the first four days after an injury. Then you can take appropriate action as needed to improve your company’s rate of returning workers. You should also tell your broker when your RTW Ratio improves, as insurance carriers will want to know that you have made operational changes that will result in reduced workers’ comp losses.
For more about bringing employees back to work sooner see: http://reduceyourworkerscomp.com//employees-back-to-work-sooner.php
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional about workers comp issues.

5 Workers Comp Cost Containment Techniques for 2013

 

Throughout the year we have discussed several ways to try and cut costs and exposure.  There is no better time to implement these cost savings techniques than at the start of a new year.  People almost expect change when early January arrives, starting off with the often-failed New Year’s resolutions.  In case you didn’t heed to our advice throughout the year, here is yet another reminder of some ways you can make a difference in attempting to reduce your work comp costs:
 
1.    Healthy employees are less likely to get hurt
Employers are taking a vested interest in the overall health of their employees. Discounts on insurance can be applied for employees that undergo a yearly physical, which can provide early detection of a potential medical issue that may have gone unnoticed without the proper testing. Employers also implement wellness programs, exercise facilities, discounts for local gym memberships, good-natured weight loss competitions, and so on.  Anything can make a difference, so give it a shot.
 
2.    Review your loss runs to review for injury trends
Companies with several locations may overlook the fact that 60-70% of their claims may come from one of their larger locations.  The same could be said about a particular class of employees that are doing the same type of job are the ones mainly getting injured.  So review your loss runs and see if you can pick up on some injury trends, then implement ways to reduce exposure within that particular job class.
 
3.    Happy employees like working
There is a correlation between work comp injuries and work environments where there is a lot of labor-management tension.  If this can be diffused, you could see a decrease in claims.  Although risk is present at all times, it seems to be less prevalent in locations where the employees are satisfied, rewarded for good work, and locations that promote overall job safety as a whole. 
 
4.    Promote early claim reporting
Since you cannot avoid risk of injury all the time, at least try and promote early claim reporting.  The earlier a claim is sent to the carrier, the sooner they can get involved.  Oftentimes employees wait until the pain is unbearable before reporting a claim.  It is at this stage that conservative treatment is no longer effective, depending on the injury.  Early intervention can cut down on time away from work due to injury because conservative, non-invasive treatment will be successful.
 
5.    Establish a return to work program
One of the biggest ways to cut down on wage loss exposure is to keep employees working, even if they have medical restrictions.  The more flexible you are with accommodating work, the more employees know that even though they are injured they will still be reporting to work, and if they fail to report for light duty work then they should know that they will not be getting paid at all.
 
 
Summary
Feel free to take this list in to your peers and see what they have to say.  Even if you choose to only implement a few of the above listed items, it is better than implementing none of them.  Change will take time–this is not a process that can take place overnight.  But stick with it, track your progress, and see what can happen.  Chances are you will see some success at some point down the road.
 
 
 
Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com
 
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional about workers comp issues.

Workers Comp Insurance Idiots

The above title refers, according to a Google search, to a common phrase used by persons complaining about the handling of their claims.

 

Let’s put that to a test.

 

One person, several years ago, reported that she had successfully returned to work a year before. A favorable outcome? Not really, according to the worker.

 

The return to work, it was related, was not due to the wishes of the worker, nor the advice of her doctor. Instead, it was caused by “the work comp insurance idiots”.

 

The complaining worker went on to say that she was “glad to be back to work”. (After a year’s absence)

 

What sense can we possibly make of this? All the goals of the work comp system have been met by “idiots”. Was there any statement of gratitude by the worker? No, but she was glad to be back to work.

 

The person was apparently single. It would be interesting to hear what a spouse might have said about the “work comp idiots”.

 

The lesson seems to be that subconsciously the workers have adopted the negligence claim paradigm. The best outcome for disability is a large settlement figure, followed by a near miraculous cure shortly after the check clears.

 

But the worker above coped with the mishandling of her disability claim, even to the point of being “glad to be back to work”.

 

Everyone in the comp process knows that they too are one of the “idiots”, especially the workers’ lawyers who, perhaps not surprisingly, get the brunt of most of these comments. Notice, no one in the above received credit. Why should the worker thank the treating doctor and her lawyer for failing to stand up to the other “idiots”?

 

From one idiot to another, let us all push on and do our best to produce such failures.

 

 
 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. 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. medsearch7@optonline.net

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.


Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional about workers comp issues.

Nova Scotia Giving More Control of Workers Comp Rates to Employers

 

Safety and Return to Work to Records Increased Impact on Rates
 
Improvements to the workplace insurance rate model mean employers’ safety and return-to-work records will have a bigger impact on rates, the Workers Compensation Board of Nova Scotia (WCB) announced recently.
 
The Board released its 2013 insurance rates and is introducing changes to make rates more responsive, to encourage positive change, and to ultimately reduce the human and financial cost of workplace injury in the province.
 
 
Bigger Impact For Fatalities, Financial Incentives for Safety
 
Among the rate model improvements are changes that make rates more responsive to an individual employer’s efforts to implement and maintain safety and return-to-work improvements. There will also be a bigger impact on rates when a fatality occurs.  The WCB will continue its practice of offering financial incentives to encourage safety improvements.
 
Each year the WCB issues surcharges to employers whose claims costs are significantly and consistently higher than their industry peers. In 2013,90 employers will receive a surcharge, down from 96 in 2012. Surcharged employers have claims costs that are at least three times their industry average for at least four consecutive years. Surcharges are cumulative and can add an additional 20 percent or more to a firm’s base rate each year. Employers can qualify for surcharge rebates if they make safety investments.
 
 
Rates Decreasing More Than 10% in Certain Industries
 
For the ninth consecutive year, the average rate for 2013 is holding steady at $2.65 per $100 of assessable payroll.  Rates are decreasing by more than 10 percent in a number of industries including printing, shipbuilding and boatbuilding, used goods moving and storage and dairy farms. Bakeries, site work (excavating, paving and landscaping), stevedoring, general freight trucking and building material sales, are among the industries whose rates are increasing.
 
While there has been significant progress in injury reduction over the past several years, 27 workers in Nova Scotia lost their lives in the workplace last year, and there were 6,616 injuries serious enough for the worker to require time away from work. 
 
 

Author Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 

 


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MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

6 Reasons Your Employees WANT to Return to Work

 

Perhaps there is a negative connotation for those that are injured at work.  For whatever reason adjusters are drilled time and time again that some claimants are up to no good and are only looking for a free paycheck.  I always laugh at this statement. 
 
Sure, a handful of bad apples can ruin it for everyone, but for the most part people just want to get back to their normal routine.  When injured, workers are usually in pain, receiving less money than they are used to, and traveling back and forth to doctor offices for examinations and therapy.  A revolving statistic may state that up to 10% of claims filed are not necessarily legitimate.  That leaves 90% just looking to heal and get back to pre-injury status.  Some injured workers even heal or return to work quicker than expected.  But why?  It seems obvious, but let’s explore some of the reasons in more detail:
 
 
1. Loss of income
 
The biggest factor for an injured worker wanting to go back to regular duty is the income they receive.  There aren’t many people out there than can get rich off of receiving work comp pay.  Typically they receive a percentage of the income they are used to receiving, ranging from 66% to 80% of their net income. 
 
Even in dual income families, this loss of income can be substantial, especially those that are living from paycheck to paycheck.  Do not be surprised when your injured worker is in a rush to get back to normal.  As long as a qualified doctor releases them to work with no medical restrictions, then you should be all set.  Of course this will vary on the injury.  I have handled cases when the claimant is adamant about making the doctor return them to work, and the physician will indicate in the notes that they are just retuning the patient back to full duty because that is what the patient requests.  You have to be very careful in this situation to avoid further injury, so if this should happen review it on a case by case basis.  [WCx]
 
 
2. The claimant hates the light duty job they are assigned
 
Most light duty jobs are boring for the most part.  Employers design light duty work so that exacerbation or worsening of an existing injury can be avoided.  Manufacturing workers are sometimes assigned to work in the tool department, janitorial duties, phone responsibilities, and the like.  If you take a guy that is used to a complex job day in and day out then place them in one of these light duty jobs, the days are going to seem like they are taking forever.  After a few days or weeks of this, the claimant is so bored and probably aggravated that they will do whatever it takes to just get back to normal work, again depending on the injury.
 
 
3. The claimant is bored if they are totally out of work and sitting at home
 
Sitting at home in an empty house with nothing to do can be even worse than light duty.  There is only so much daytime TV one can stomach.  It is no coincidence that most plaintiff law firm commercials run during the morning and afternoon, when injured workers would be home while disabled from work.
The vast majority of workers like working, or at least need to work for income, and even though sitting at home for weeks sounds great it is indeed not so great after a while.  It’s not like they can do whatever they want.  In fact this is what will land most workers in trouble, because once boredom creeps in they start to get outside and do something to take their mind off of being at home, and if you have surveillance on that certain day this can land a person’s case in suspension or denial due to them breaking their medical restrictions, whether it be on purpose or not.  I have seen a lot of injured workers tell that just cannot sit at home any longer, and want to return to work.  So do not be surprised if this is the case every now and then.
 
 
4. The claimant hates being involved with the adjuster and the carrier/TPA
 
Most claimants are new to being on work comp.  They have no idea what they are supposed to do, they do not like treating with the occupational doctor, and they hate sitting around and waiting on a paycheck to come in the mail that may take weeks to come once the investigation is complete.  In fact, I have had some workers that have had a legitimate work injury decline filing a claim under work comp, and choose to cover the bills from their medical care another way.  This is especially true if they have had a messy comp case in their past.  They are so jaded about how the process works that they will avoid it at all cost.  This is not necessarily the right thing to do, but the overall choice is up to the worker.  Realistically the carrier is not going to try and talk the injured worker into filing the claim.
 
5. They think that a work comp case is going to be a litigation nightmare
 
Taking this one step further, some workers have heard horror stories about being on work comp, and being embroiled in a years-long litigation battle, with mounting attorney fees and a life filled with misery.  Sure this could be true sometimes, but not as much as the general public thinks.  Despite what the adjuster may tell them, we can’t make the worker pull the trigger and file the claim. 
 
 
6. The worker just heals faster than expected
 
Some people just heal better and quicker than others.  This is due to conditioning, genetics, the type of injury, the location of the injury, the severity of the injury, and so on.  If the adjuster thinks that it can take 6-8 weeks to heal from a back strain, and the worker is released to full duty in 2 weeks, this doesn’t mean that they are just in a rush to get back to gainful employment.  If the medical checks out, and the treating doctor signs off on it, then so be it.  Full duty is full duty. Adjusters should not hold this against a person just because they heal better or quicker than we thought they would.  [WCx]
 
 
Summary
 
There are probably a lot more factors to add to this article, but I thought that the above 6 were the most tangible. This should prove that all claims shouldn’t be placed in the “bad” category.  Put yourself in the shoes of your injured worker.  Their money is not the same, they are in some sort of pain, their job tasks have changed, they are dealing with the adjuster and the carrier/TPA, etc.  They are in uncertain waters.  The common response to that is to get back to whatever they think is their normal life as soon as possible, so they can put this all behind them.  I for one would not hold that against them, since I can’t say that I wouldn’t do the same thing if I were placed in the same scenario.
 
 
 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

6 Strategies To Ensure Your Employees Return to Work

 

The Link between Worker’s Comp and the ADA
 
In 2009, The U.S. Equal Employment Opportunity Commission (EEOC) announced a record-setting consent decree settling a class action lawsuit against Sears, Roebuck and Co. under the Americans with Disabilities Act (ADA) for $6.2 million. The EEOC’s suit alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. http://www.eeoc.gov/press/9-29-09.html.
This case highlights the importance of having a proactive return to work program that addresses the ADA accommodation requirements. When employees are injured on the job, employers must have a plan that addresses return to work options and ADA accommodations.
 
 
Return to Work Strategies
 
Normally, when employees are released to work following a worker’s comp injury, they will return to their previous position. However, employees may have an occupational injury or illness where they are released to work but can’t perform all of the essential functions of their regular job or need an accommodation.  
When creating return to work opportunities consider several strategies. Think “out of the box” in your approach to getting employees back to the workforce. There are many tasks to keep workers productive and involved in the workforce.
 
 
1-Prepare a physical binder
 
Create a binder full of alternative job descriptions within the company or sister companies that employees can easily access. Have Human Resources regularly update the binder with all job openings, full and part time, temporary and permanent. Make sure the supervisor and the employee are aware of the binder and regularly check it for openings.
 
 
2-Promote internal online job listing resources

As with the physical binder, make sure there is an on-line job listing resource that the employee can access. Email all job openings to the employee in addition to what is available in the physical binder.
 
 
3-Create a return-to-work resource center

Have your Human Resources Department encourage the injured employee that they are wanted back at work. Make sure that HR is a resource to support the employee in creatively finding a way to return to work, even if it is in another position more compatible with the employee’s limitations. Have HR consult with the employee about any reasonable accommodations that would make it possible for the employee to return to work in any available positions.  Have a written Return to Work Policy so that all management and supervisors understand the goals and methods of having employees successfully return to work.
 
 
4-Consider outside resources to accommodate transitional duty workers

Vocational rehabilitation (voc rehab). Voc rehab is a federally funded agency in every state that offers vocational rehabilitation, employment opportunities and independent living services for disabled people. The programs vary by state but may include medical, psychological and vocational assessments, counseling services, therapy, training, job placement and rehabilitation.
 
The Job Accommodation Network (JAN) provides free consulting services to employers. Services include one-on-one consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referral to other resources, and ADA compliance assistance. https://askjan.org/empl/index.htm. JAN has several on-line tools and publications to help employers accommodate employees with a disability.
 
Occupational Health and Safety Administration (OSHA) regulates safety compliance in the workplace.  In some instances, OSHA safety regulations may prevent certain accommodation for an injured employee.  OSHA has a website that employers can consult for guidance.  Sometimes OSHA will publish bulletins with innovative safety accommodation ideas, e.g. how to safely accommodate employees with hearing loss injuries. http://www.osha.gov/dts/shib/shib072205.html.
 
 
5-Encourage volunteerism and partner with local employment agencies or volunteer groups to enhance workers’ options.

Often employers want to offer modified duty but do not have appropriate positions available.  Some states have Workers Compensation Funds that have partnered with charitable organizations to offer a return-to-work plan that provides modified duty for injured employees. These plans can lower claims costs, decrease workers’ compensation insurance costs and increase morale.
In addition, employers who do not have appropriate position available may want to partner with local employment agencies that may have appropriate temporary or permanent positions available for the employee.
 
 
6-Consider home-based employment
 
Telecommuting may be a reasonable accommodation under the ADA for an injured or ill worker. Have HR consult with the supervisor and the employee to see if there are any tasks that the employee can perform from home on a temporary or permanent basis.
 
 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

The Simplest and Most Inexpensive Thing Will Save You the Most on Workers Comp

Big Mistake of Employers is No Rapport with Employees

 
The dictionary defines rapport as:  a friendly relationship based on mutual liking, trust and a sense that they understand and share each other’s concerns.  One of the biggest mistakes employers make in handling their workers’ compensation claims is the failure to have rapport with the injured employee. 
 
When an injury occurs to an employee, once the immediate medical treatment is obtained, the primary concern of the employee is how the injury will impact his/her job, his/her future income and his/her ability to take care of their family obligations.  The wise employer will have the workers’ compensation coordinator or employee’s direct supervisor in touch with the employee the same day as the accident to address the employee’s concerns about the future.  [WCx]
 
Employee Needs Feedback and Positive Reinforcement
 
Following an accident, the employee needs both feedback from the employer and positive reinforcement that he/she will be taken care of by the employer. The work comp coordinator or supervisor should contact the employee to:
 
  • inquiry with the employee about what the medical provider had to say,
  • offer to arrange future medical care or diagnostic testing, if needed
  • advise the claim has been reported to the insurer and the adjuster will be in touch within the next 24 hours
  • reassure the employee that their job will be waiting for them when they are able to return to work
  • advise the employee that the employer will do what is necessary to provide the employee with modified duty/light duty work when the medical provider states it is okay to do so
  • determine when the employee’s next medical appointment is
  • ask the employee to call in following the next medical appointment to update his/her status
  • ask the employee what the employer could do to prevent future accidents like the one the employee just had
  • ask the employee if they have any questions or concerns about what will occur with their workers’ compensation claim
  • By contacting the employee, preferably the same day, following an accident, and answering all of the employee’s questions, the employer shows the employee the employer is concerned about the employee’s wellbeing.  When the employee is not contacted following the accident, the employee will feel ignored by the employer. 
 
No Contact Leads to Worry and Often Legal Involvement
 
This will often lead to the employee hiring an attorney to answer the questions about the work comp claim the employer could have easily answered.  The attorney will quickly express how the insurance company and the employer are out to take advantage of the employee, and, of course the attorney can protect the employee from all of his/her concerns for a percentage of the claim.  Often the attorney will even tell the employee that they will net more money after the attorney’s fee, than they would without the attorney’s assistance.  The worried employee will often be quick to latch on to these promises, if they have do not have rapport with the employer and the employer’s reassurance that the employee will be taken care of.
 
The best way an employer can prevent an injured employee from obtaining an attorney and the unnecessary additional claim cost that drives the employer’s premiums higher, is to maintain contact with the employee after the accident. Not only is contact immediately after the accident needed, contact with the employee following each medical visit will work wonders in maintaining rapport and trust with the employee.  By maintaining an active interest in the claim and the employee’s wellbeing, the claim will move forward in a positive manner.
 
Build Positive Momentum Through Return to Work Program
 
The return to work program, even if well established at your company, needs to be discussed and explained to the injured employee in terms of keeping his/her job available.  The return to work program should be explained to the employee in terms of minimizing the income lost the employee will have due to receiving the lower disability benefit rather than the regular paycheck. [WCx]
 
By maintaining contact with the injured employee, the employer will maintain rapport throughout the claim process.  The positive atmosphere created by the rapport between the employee and the employer will lead to a more satisfying outcome of the claim for both the employee and the employer.
 
 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

How To Get Employees Back to Work When You Do Not Have Suitable Job

 

Place Injured Workers in Modified Duty at Alternate Company
 
Third party Return to Work Providers specialize in placing injured employees in a job when the employer is unable to provide light duty / modified duty work for the employee. In most instances, the Return to Work provider places the injured employee with a light duty work release in a position with a non-profit / charitable organization.  Both the injured employee and the non-profit organization know the employee’s placement in the transitional duty position is temporary. 
 
The transitional duty position allows the employee to work in a productive manner, within the work restrictions set by the medical provider, while recovering from his/her injury.  When the employee is kept working, the employee retains the discipline needed to be in a workplace.  Also, it has been shown that employees who return to work light duty recuperate faster than employees who stay home until fully recovered.
 
While it is always the best idea for the injured employee to return to work light duty / modified duty with their own employer that is not always possible.  Some jobs which require extensive manual labor cannot be modified enough to make it worthwhile for the employer to return the employee to work before they have a full duty release.  Other jobs, for instance, long distance truck drivers, have limited need for any additional employees at their facilities making employer provided light duty work difficult or impossible. 
 
 
Charitable Organizations Are Great Option
 
These situations are ideal for a third party return to work provider.  The charitable organizations they deal with – Salvation Army, Goodwill, YMCA, food banks, etc., have a constant need for employees. Sorting donated clothes or cans of food can be done sitting down or standing up and alternating sitting  / standing as needed – whatever the medical provider prescribes.  The jobs can be completed without bending, twisting, kneeling, etc.  The lifting will be within even the strictest lifting restrictions of 5 pounds. 
 
The charitable organization will pay the employee an hourly rate for the work the employee does.  If the weekly amount earned at the charitable organization is greater than the employee’s average weekly wage, the employee will not receive any disability payments while working the transitional duty job.  If the amount earned at the charitable organization is less than the amount earned on the employee’s regular job, the employee is paid temporary partial disability (which will be significantly less than temporary total disability) in most states.
 
In some cases the charitable organization cannot afford to pay the employee any wages.  In those situations, the employer can continue to pay the employee either his /her regular wages or a reduced wage with the insurance claim paying temporary partial disability.  Whenever the employer continues any wages while the employee is working for the charitable organization, the employer is able to write-off the cost on their taxes as a charitable contribution.
 
 
Many Benefits for Employer
 
In addition to lowering or eliminating the amount of disability payments while the employee is recuperating from his/her injury, the transitional duty job will assist both the employer and the employee in several ways, including:
 
  • The employee does not get accustomed to sitting home and not working
  • The employee maintains a sense of self-esteem by working for a living
  • The transitional duty job  fosters a faster recovery, reducing the amount of medical benefits paid
  • The transitional duty job reduces the amount of deconditioning most employees experience when not working
 
As almost all employers know that a return to work program is beneficial to the both the employer and the employee, the question often becomes “How much does a third party return to work provider charge for their services?”  The answer varies.  Some third party return to work provider charge a flat fee for their services, often in the $750 to $1,000 range.  Other return to work providers will have a sliding scale of fees, with the amount of the fee being based on the number of job placements they do. 
 
Occasionally, there is the injured employee who just doesn’t want to return to work, period.  If the third party return to work provider arranges for the employee to work at a charitable organization, and the employee does not show up, the third party return to work provider will normally reduce their fee to half or there about.
 
Third Party Return to Work Providers Should Always be Considered
 
Third party return to work providers saves the employer money on the cost of workers’ compensation.  They also benefit the employer by getting the employee back to work faster and being productive for the employer.  The use of third party return to work providers should be considered any time the employer is unable to offer the injured employee a modified duty or light duty job.
 
 

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and 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. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

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