How to Determine if Assaults, Attacks, Horseplay, and Travel Are Covered by Workers Comp

 

Some situations where an employee incurs an injury are not compensable, and some situations are compensable only if the facts surrounding the injury meet the definition of an accident.  The following discussion centers on unusual circumstances that may or may not be compensable.  These unusual circumstances will be compensable in some states, but not in others.  If you have one of these unusual circumstances of injury to occur, consult with your workers’ compensation adjuster or defense attorney to see if the event causing the injury is compensable in your state. [WCx]

 

 

Assaults:

 

When an assault occurs in the workplace, the normal deciding factor is whether the assault is connected to the employment.  If the assault arises out of the employment, the injury is normally covered by workers’ compensation.  For example – the convenience store employee who is assaulted in the course of a robbery.  If the assault is not related to the employment, the injury is normally not covered by workers’ compensation. For example – the truck driver who is hit over the head and robbed.

 

The work status, whether a co-worker or a non-employee,of the person assaulting the employee is usually not a factor. The relationship of the assault to the employment is normally the key factor on whether or not an assault is covered by workers’ compensation.

 

 

Attacks by co-workers:

 

When one employee attacks another, the relationship of the injury to the employment normally determines whether or not the injury is covered by workers’ compensation.  For example – the frustrated employee who punches the supervisor in the face after receiving a poor performance review.  The motivation for the attack was work related.

 

If the motivation for an attack is not work related, then it will normally not be covered by workers’ compensation.  For example – the employee who attacks a co-worker after learning the co-worker has been “dating” his wife.

 

 

Attacks by a third party:

 

When an employee is attacked by a non-employee while on the job, the reason for the attack determines whether or not it is covered by workers’ compensation.  For example:  the cab driver who is shot and robbed when he stops to pick up a “customer”.  In this example, the cab driver would not have been injured if he was not performing his routine job. 

 

When the attack by a third party is unrelated to the employment, the injury is normally not considered workers’ compensation.  An example of this would be an estranged wife who comes to the workplace uninvited and shoots the employee. [WCx]

 

Horseplay:

 

The states vary tremendously on injuries due to horseplay.  Some states consider horseplay normal human conduct, and the resulting injuries as unintentional accidents.  Other states consider whether or not the injured employee was a victim of another employee’s transgression or a willing participant, with the victim being covered by workers’ compensation while the willing participant is not covered.  (It helps to have a published policy forbidding horseplay).

 

 

Coming & Going:

 

Most states do not provide workers’ compensation coverage for employees injured going to work, or returning home after work.  Of course, there are several exceptions to the “coming & going” provisions of the workers’ compensation statutes.  Most notably is the traveling salesperson that is away from both the employer’s premise and the employee’s home.  The salesperson is on the trip for the benefit of the employer and is covered for workers’ compensation.  For example – the salesperson falls in the hotel bathtub.  The injury would not have occurred if the salesperson was not on a trip for the employer.

 

Errands for the employer combined with the employee’s personal travel can be covered by workers’ compensation.  For example:  the secretary who takes the office mail to the post office, which is on her way home, and is injured in a car accident.  If the secretary was between the employer’s premise and the post office when the injury occurs, it will be covered by workers’ compensation as this portion of her trip was for the employer’s benefit.  However, if the car accident occurs after the secretary has dropped the mail at the post office and has resumed her normal route home; the car accident injury would not be covered.

 

The personal vehicle exception to the coming and going rule normally involves a person who travels to multiple work sites during the day.  If the employee is required to use their personal vehicle to accomplish their job, even if paid mileage by the employer, they are covered by workers’ compensation.  For example – the salesperson that leaves her home and is on the way to see a client when an automobile accident occurs.  The trip is for the benefit of the employer, and is therefore covered by workers’ compensation.

 

 

Summary

 

Whenever the employer has a set of unusual circumstances that result in an injury, the employer should document all the available facts surrounding the injury.  The employer should consult with a person knowledgeable of the worker’s compensation statutes in their state.  If there is any question as to whether or not the injury is covered, the employer should report the injury to the claims office and leave the decision of coverage to the workers’ compensation adjuster.

 

 

 

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.

 

STRESSED OUT – May or May Not Be Compensable Work Comp Claim

 

Everyone has varying degrees of stress in their lives, both inside of the workplace and out.  But the question employers have is when an employee comes to them and attempts to file a work comp claim stating that stress is their injury.  So what do you do? Is this a compensable claim, or should it be funneled more towards a disability claim?

 

Unless there is an extreme isolated event, stress will not be covered under the comp act (But you still should check with your legal counsel at all times).  General job stress is always going to be present.   Long work hours or a tight deadline to meet are considered normal within the workplace.   Just because the stress is present doesn’t mean that it is automatically a covered work comp claim.  [WCx]

 

The only scenario commonly accepted under work comp on a large-scale basis is a robbery, or some other very specific event that can lead to a diagnosis of post-traumatic stress disorder.  Armed robberies, shootings, and other criminal acts that involve another employee can sometimes be covered under the work comp act, since that is deemed the specific catalyst in causing the stress condition.  Harassment, personnel issues within a company involving employment, layoffs, firings, and so on usually will involve more of a human resources issue, and will generally fall under Employment Law rather than Work Comp.  This will vary within the jurisdiction, but think about specifics of the actual activity, and how it caused a worker to be “injured”, either subjectively or objectively, within the course and scope of their employment.

 

We discuss some of the more popular factors of stress scenarios below:

 

  1. What happened?

Depending on the jurisdiction, general workplace stress can be a tough claim to prove to be compensable under whatever work comp statutes are governing the claim. If a worker comes to the employer and says they have stress and need to file a comp claim, no matter what the scenario, the claim should be filed with your carrier.  Remember, it is carrier’s job to determine what is work related and what is not, not yours.  In fact, just the actions of not reporting a claim to your carrier can lead you into hot water with the governing work comp bureau. Despite the issues, and whatever the scenario may be, just file the claim, do your normal investigation, and gather as much information as possible and send it to the adjuster handling the file. Chances are that normal workplace stress will result in a denied claim under work comp, and the worker will be directed to their personal insurance for treatment and coverage.

 

  1. Who was involved?

It is easy to say that a CEO of a large company has more actual job stressors than a person that works in the mail room sorting mail.  But is there an isolated event that caused this stress?  If so, who was involved? One example is altercations that turn physical between employees.   An employee injured in a fight that did not actually “start” the altercation could qualify as a compensable claim.  This situation will typically involve a lot of finger pointing as to who actually started the fight.  This will typically be accepted as comp for the person injured until the facts areiron-clad in their existence and witnessed by others.  If both parties cannot agree or there are other factors involved both inside of outside of the workplace then usually the carrier will not accept anything, and will let the employer be the responsible party as far as leading the investigation.  The workers could then say that they have stress to even come to work now, since they feel they are being judged or gossiped about by the other employees, and again maybe this is compensable and maybe it is not.  All you can do as the employer is report the claim, with as much information as you can, and pass it on to the adjuster handling the claim, and let them do whatever they see fit as far as compensability goes.

 

  1. So what is the injury?

Stress claims come to carriers in a variety of ways, claiming a lot of different subjective and objective injury allegations. Mental stress, fear of other employees or retribution from management over a task that failed, anxiety problems involving coping with the situation, inability to focus on tasks, lost sleep due to the claimant “reliving” the incident, and so on and so on. 

 

As the employer, look for the catalyst.  What caused this situation to manifest?  Was this a one-time acute issue that caused the situation, or was this something that was going on and on for months or years that finally boiled over and caused whatever situation to occur?  How many different coworkers and levels of management were involved during this ongoing time?  Was anything reported to management in the past, and if so what was done with discipline for the involved parties? The hard part of these claims will be talking to all of these other employees to get their sides of the story.  To some, it may have been no big deal, and they could laugh at the allegation of stress arising from this incident.  But to others, they could see it the exact opposite.  

 

People all cope with stress differently, both inside of work and out, and a lot of times these stress claims can involve employees that have a lot of instability outside of the workplace that they can be bringing in with them as soon as the punch the clock to start their shift.  This is what makes these claims so difficult.  Claimants often will not elaborate to their adjuster during the investigation about the stressors of their personal lives outside of work, in order to make this work incident seem all that more isolated, and that is why they think it should be compensable, whether it actually is or not. [WCx]

 

Summary

As an employer you are going to come across one of these stress claims at one time or another.  The most important thing to do is to not blow it off.  Take the claim seriously, and report it to your carrier promptly.  Gather as much information as you can, including names, dates, witnesses, and so on and have these coworkers give statements on what happened so the adjuster can have that as part of their file.  Some may be more willing to talk than others, but it is your job to investigate it as you would with any other claim, despite whatever your personal assessment may be.  In cases such as these, the adjuster can never have enough information, whether you think this claim is compensable or not.

 

 

 

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.

 

Not So Fast – Get All The Facts Before Accepting a Workers Comp Claim

 

Sometimes when an occupational injury occurs, it seems like a no-brainer that it would be an accepted workers comp claim.  The question often comes up when an acute injury occurs if the employer should ok the claim, even though there may not be details or information right at hand? The investigation that the adjuster performs can take several days to complete, if not longer, depending on the extent of the injury.
 
The idea of accepting a claim without prejudice will occur in certain jurisdictions more than others. It all depends on how the comp act is read within the jurisdiction where the workplace is located. Here are a few things to look out for: 
 
 
 

1.  The injury seems to be acute

If a worker drops a 50lb piece of equipment on their foot and falls to the ground in pain, it is quite obvious medical attention is needed.  Chances are this claim will be accepted as compensable without any major issues. It is possible that safety protocol may be to blame for the incident, but any defenses as an adjuster will depend on the jurisdictional statutes. Even in the most conservative states, the bottom line is if the worker is in the course and scope of employment and doing a duty that is of benefit to the employer, the claim is compensable. It maybe safe in this example to say the adjuster would OK the claim based on merit alone, but this is not always the case. The fact of the who, what, where, when, why, and how the injury happened may come into play later on in the claim which could lead to a suspension of benefits, or an overall denial.[WCx]
 
 
 

2.  The injury is witnessed

A lot of workers are under the belief that just because someone directly saw the injury happen it means claim will be compensable. This is not always the case. It helps to validate the claim, but that does not make it pass the criteria to make it compensable. I am not aware of workers comp laws in any state that directly say “If any injury were to be witnessed it is automatically compensable.”  A witness statement has to be applied and the validity of the claim determined on a case by case basis when it comes to overall compensability.
 
 

3.  The worker sustains a hernia, or herniated disc. Does that make it automatically compensable?

Of course it does not. If there are 50 people randomly selected out of the general public of varying age, a good percentage of those people may have disc problems, or umbilical hernias, that may or may not cause any noticeable medical problems.  The diagnosis of a hernia or herniated disc makes adjusters cringe, because there will now be a complex claim that will require a lot of medical investigation, and a lot of work to gather evidence to show why or why not that particular diagnoses is or is not occupational in nature.
 
 
 

4.  Investigation on the employer’s side of the claim points to the claim being compensable, so does that make it compensable?

No it does not. The employer’s investigation and opinion is only one aspect of the claim. There is still the employee’s story, the story of the involved witnesses, the medical story, and the legal support of the claim. All of these involved parties and the overall completion of the investigation of the claim will tell the story about if the claim will be accepted or not.
 
 
Sometimes there are claims where the employer’s investigation and the statement made by the employee point to potential compensability, but the medical aspect does not add up. Remember, all of the prongs of the investigation have to point to the claim arising out of the course and scope of employment and arising out of the course and scope of the injury occurring within the stated job duties that the employee was to be performing at the time of injury. If one of the aspects of the claim does not jive with the rest of the claim, the adjuster will file a dispute or suspension with the State in order to try and tie the case together. 
 
 
In the end, the burden of proof lies on the clamant to show how and why the injury occurred, and how and why that arose out of the course and scope of their employment.  The adjuster is not going to go out of their way to try and prove the case for the claimant. No one aspect of the claim can outweigh the other ones; they all have to correlate without conflict.  It is only then when a claim will be accepted as compensable. .[WCx]
 
 
Summary
The aspect of accepting a claim without prejudice is a risky one. An adjuster cannot accept a claim as compensable based on just one part of the investigation, or the presence of a certain diagnosis. The carrier has the right to stop or suspend benefits and coverage whenever coming across some evidence that may be contrary to what is currently known to be the details of the injury and how/why it occurred. The safe bet is to complete as thorough an investigation as possible, on all prongs of the case.  Those prongs being on the employer’s side, on the carrier’s side, on the medical evidence, and on the applicable legal statutes within the jurisdiction that has coverage.


 

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 Most Effectively Handle Workers Comp Claims

A common mistake made by employers (and some workers compensation adjusters) is to believe that the settlement value of the claim is based on the actions taken when the employee has finished the medical treatment and has indicated he/she wants to settle their claim. All the negotiations tactics and claim strategy when the employee has finished his/her medical treatment have an impact on the settlement value of a workers compensation claim, but are by no means the only factors in a claim settlement. The best settlements do not start at the end of the medical treatment; the best settlements start the day of the accident.

 
 
One of the most important steps an employer and the workers compensation adjuster can take to optimize the settlement value of the claim is to start work on the claim immediately. This entails the employer reporting the claim to the claims office within minutes (not hours or days) of the employee reporting the accident/injury. The immediate reporting of the claim allows the workers comp adjuster the opportunity to:[WCx]
 
-Make same day contact with the employee, employer and medical provider. For companies using nurse triage, the triage nurse will be the first point of contact. Ask the nurse to contact the injury coordinator;  the employer will also receive a daily triage report.
-Completely investigate the accident details, take photos and written statements.
-Have the employee detail IN WRITING what happened. Have employee circle the affected body part.
-Determine if there are issues in regards to compensability
-Establish the nature and extent of the injury to prevent the employee from later adding additional medical issues to the claim and increasing the eventual settlement value
-Control the selection of the medical provider in those states where the employer/insurer select the medical provider
 
 
If there are issues with compensability, it is much easier to negotiate the settlement of the claim later, if the compensability issues have been properly evaluated and established at the start of the claim. 
 
 
The settlement value of the claim is not simply controlled by handling the claim in accordance to Best Practices at the start of the claim. Every action the claims adjuster and the employer take between the initial investigation of the claim and the settlement negotiations will also impact the settlement value of the claim. This includes:
 
-Maintaining on-going contact with the employee and the medical provider
-Arranging for the employee to return to work light duty / modified duty as soon as the medical provider will permit
-Integration of the medical management into the claim handling activities
 
 
By continuing to manage the workers compensation claim in accordance to Best Practices, every step taken in handling the claim moves it closer to the appropriate settlement.  
 
 
When the medical treatment has ended, or the employee or the employee’s attorney indicates the desire to settle the claim, there are numerous additional factors that come into play in establishing the settlement value and obtaining the best possible settlement. The adjuster will consider:
 
-The permanent impairment rating, if any (including an independent medical evaluation in some situations). If the rating looks too high, have the TPA arrange for a peer-to-peer physician to review the file.
-The jurisdictional requirements
-The value of future medical treatment
-The value of life care planning needs, future medication and durable medical equipment
-The impact of preexisting medical conditions, where permitted
-The employee’s indemnity rate (whether permanent partial disability or permanent total disability)
-The exposure for future indemnity cost
-The cost of litigation, if needed to resolve the claim
-The cost of rehabilitation, if needed
-The cost of vocational training, if needed
-The value of death and funeral benefits, if applicable
-The value of any offsets
-Any other strengths and weaknesses of the both sides of the negotiations
 
 
When the employee’s injuries are complex or the value of the claim is disputed, the adjuster can utilize a reserve worksheet to assist in the establishment of the value. On the reserve worksheet, each of the above factors is given a value. The monetary values of all factors that are a part of the claim are combined to establish the settlement value. 
 
 
When the employee has an attorney representing him/her, the employee’s attorney will follow a similar approach to establish the settlement value of the claim. The attorney will attempt to maximize the settlement value of the claim in order to maximize the attorney’s own income. However, the employee’s attorney will know the true value of the claim, regardless of what the employee’s attorney maintains the value is in the settlement negotiations. Most claims settle without lengthy litigation because when both parties have evaluate the same factors in the same manner, the estimated value of the claim will be similar, which allows for a negotiated settlement of the claim.[WCx]
 
 
The settlement value of a claim is influenced by the adjuster’s compliance with Best Practices throughout the course of the claim, from the day of the accident to the day the employee reaches the point where negotiation of the claim settlement can start. The factors that impact the settlement can be evaluated individually and combined to determine the overall settlement value.

 

 

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
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.

Ergonomics, Pre existing Conditions and Workers Compensation

It is time to address a topic about causal relation in a workers comp caseThis case involves a teacher and school aid in a library, where the desktop computer is being replaced by a laptop. Soon after the switch, both employees begin to complain about neck pain since the height of the monitor on the laptop could not be adjusted from person to person, and extended use was causing some neck pain. The insured wondered if the change to a laptop was causing the neck problems and if these would be considered as workers compensation cases. We discuss the investigation of causal relation here.

 

  1. What does the treating doctor say in the medical records?

The most important aspects of this case will be the causal relation statements the physician makes. If the two employees are of the same height and build, why are they complaining of pain, more importantly how is the laptop situated, and how is that causing neck pain? Prolonged sitting in a non-comfortable ergonomic position can lead to strains of the neck, but at a normal desk this should not cause neck pain. Is the laptop screen at eye level or situated down inside the actual top of the desk, where the employees are looking down at the screen? Or is the laptop mounted on top of something where the neck is in a constant extended position? Are other employees complaining of pain or having a hard time viewing the screen of the laptop?  WCxKit

 

It is important to remember in this situation that if an employee comes to an employer and complains of pain and wants to pursue a workers comp claim with supporting medical documentation stating a work injury is present, then it is the employer’s duty to call the claim in to the carrier. The adjuster will make the determination, if the claim is compensable. Certainly more than one employee complaining about the same issue can lead to a more convincing case, but it does not mean it will be automatically accepted. Take pictures of the desk and of these people sitting at the desk as they normally would and send those on to the adjuster as well, so the adjusters can see the setup of the work station and pass that information on to the physician. Being able to actually see the worker sitting as they normally would will help them arrive to the proper decision on the case.

 

  1. Does either employee have a history of neck pain from another source?

One of the first questions the adjuster will ask is if either employee has a history of neck pain or prior surgery. This could predispose them to having pain if the neck is positioned in certain ways. Again it does not mean that the laptop setup itself is responsible for the pain. It could be pre-existing post-surgical pain that is the culprit. Prior auto accidents involving whiplash complaints can also contribute to neck pain in the future. Also the employees’ activities outside the workplace are unknown.  Maybe one or both of them are engaged in activities that fatigue the neck, and this laptop exacerbated that non-occupational pain.  A question about whether the injury could have another cause is part of a normal investigation in just about every workers compensation claim.

 

 

  1. Is the workstation adjustable or not?

If these employees are of different height, can the chair or workstation be adjusted to properly fit them? And if so, are they still complaining about pain? If nothing is adjustable, are other employees of similar builds complaining about the position of the laptop screen? Why or why not? Again, if no other employees are complaining about any problem with the laptop, then go back to these two employees. What is the relationship to each other? Do these two often hang out at the school? Are they in common positions and have similar duties? How long are they actually sitting at this computer and how often are they required to be moving up and around during the day? All of these questions are part of a normal investigation the adjuster will do, and as the employer, try and gather as much of this information as possible to help the adjuster make the proper determination on the claim.At the same time the claim is investigated by the adjuster, the incidents should be reported to the safety director who should review the workstation design. Consider having an ergonomic consultant review the set up. Ask your TPA or insurance carrier what resources are available for ergonomic consulting. Consider what other equipment could be provided to make the work station more comfortable.

 

  1. Has the adjuster performed an IME or peer review yet?

Usually background searches have been completed for prior injuries, and the next thing is to gather all of the medical evidence and set an IME with a qualified physician or occupational medicine doctor to address the causal relation. Is there any objective evidence of degenerative arthritic conditions in the neck that can contribute to this pain? Was an MRI performed, and if so are there any objective results, and, if so, how can they relate to the ergonomics of the workstation? This should all be part of the normal investigation on the claim, and all of these questions should be included in the cover letter to the IME doctor, so that doctor can specifically address these questions with the correct answers, using objective medical evidence to back up the opinion.

 

  1. What is the decision–is this compensable or not?

This is the million-dollar question. There are cases like this where these are accepted injuries under workers comp and similar cases where coverage is denied for similar complaints. The lesson here is that no two cases are the same. Maybe one of these employees has no pre-existing condition, and the other one has a prior surgery. This could play a role in which case is compensable and which one is not. It will be up to the adjuster on the file to make a decision on the compensability. Even if the employer disagrees with the decision, there is little to do to swing the case the other way. Let the adjuster do a thorough investigation and stand by the decision. If the worker disagrees with the decision,  there are ways to appeal the decision and research to pursue that on their own. That is the choice of the worker. WCxKit

 

 

Summary

Ergonomic claims such as this one are going to happen at some point. The key thing to remember as the employer is to do a thorough investigation. Gather as much information as possible, even if it appears to not matter in the final outcome. The adjuster always prefers too much information rather than not enough. Take pictures, and assist the adjuster in any request they have. They will make the proper decision on the claim, since that is an adjuster’s job day in and day out. If, however, you disagree with the decision, make sure to talk this out with the adjuster and the claim supervisor.

 

 

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.

 

 

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

 

©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.

 

Five Questionable Workers Compensation Injuries

You are at work. An accident happens. So, you qualify for workers compensation coverage, right? Compensating workplace injuries is why the employer pays for coverage – right? Not so fast, it's not that easy.
 
 
Sometimes, the answer is “sometimes.” There is a big difference between an injury happening at work, and the injury being “work-related.” The golden rule is: the injury has to “occur within the course and scope of employment”  and "arose out of the circumstances of employment." Of course, each jurisdiction states the law slightly differently, so check state law. For more information: Is the injury compensable.
 
 
Here are five common examples of questionable compensable “workplace” injuries.
 
Note: Coverage can vary by jurisdiction. Always check with your adjuster for any scenarios applicable to your particular workers compensation cases.
 
 
Example #1: I hurt my back lifting a box.
Back injuries may be the most common of workers compensation claims. An employee, doing normal work duties, feels back pain. Is it covered? Ask these questions:
 
1.      Was the worker doing normal job duties?
2.      Was the injury witnessed?
3.      Is this an isolated incident?
4.      Did the pain start off slowly, then worsen over time or was it more acute in nature?
5.      Was it reported promptly and to the proper person?
6.      Does the worker have prior back injury claims or prior surgery to the affected area?
 
The employer may be on the hook for accepting this claim as a strain. However, if later the worker needs surgical intervention to repair ongoing pain, then the claim may be disputed. Reporting the claim late and/or not receiving treatment right away can affect the compensability of the claim. The importance of prompt injury reporting and proper medical treatment can mean the difference between a “back injury” claim being accepted or denied.
 
 
Example #2: My shoulder hurts from doing my normal repetitive job duties.
Repetitive job injuries are quite common. The same employee comes to work day after day, doing the same job on the same machine for months, maybe years. But whether the job actually caused the injury is the main question. Some states are much more restrictive allowing repetitive injuries than others — so check state law!
 
 
If the worker reports a repetitive job injury, and an MRI later shows all kinds of arthritis in the shoulder, then this claim may not be accepted. Unless the worker can prove the job duties led to an aggravation of the pre-existing degenerative conditions, the claim may not be covered. The employer may be on the hook for a temporary strain or exacerbation, but once a surgical repair is recommended, this claim could be denied by an IME physician.
 
 
Everyone has a different degree of ongoing arthritic issues in their bodies. There are 25-year-old workers with shoulders looking like they have been through the mill. And there are 65-year-old workers with perfectly healthy shoulders. It all depends on genetics, the job being done, and for how long. The physician must be able to differentiate between what is a pre-existing degenerative arthritic condition, and what damage is specifically related to the job tasks.
 
 
Example #3: I slipped on water on the floor and twisted my knee, but I don’t need medical treatment.
Watch out for these claims. Some workers do not run to the doctor for every little ache and pain. Some are afraid to miss work for financial reasons. Some are afraid to report a claim because they are afraid of being laid off or moved to another job classification.
 
 
The most important thing for the employer to do in these cases is to document the incident internally. Workers must know it is “okay” to report an incident, but if they don’t go to the clinic for treatment they run the risk of their claim being disputed down the road.
 
 
The workers comp motto for claims adjusters is:  “Workers injured at work go for medical treatment because they are injured.” The reality is some people do not want to get treatment at the time of the injury. They may have heard the workers comp clinic has bad service; or they have to wait for 3 hours before being seen. These issues are detrimental to the claims adjuster, since a worker may have a legitimate injury but due to these outside factors does not get treatment at once. Failure of the worker to get medical care does not mean the worker is not hurt. It means delays in medical treatment complicate the claim down the road potentially leading to a denial.
 
 
Example #4: I was injured in a car accident while driving a work vehicle.
Auto accidents in employer vehicles can be tricky. Every state has its own rules when it comes to these types of accidents. Just because a worker is driving a company vehicle does not mean the claim is automatically accepted. A thorough investigation is required. Questions to ask include:
 
1.      What was the worker doing at the time of the accident? Think distracted driving.
2.      Where was the worker heading when the accident occurred?
3.      What were the worker’s exact job tasks while in the company vehicle?
4.      Who was at fault at the time of the injury?
5.      Was there a police report?
6.      Did the worker get medical treatment at a hospital?
7.      Was a drug/alcohol test done at the hospital?
 
 
The answers to these and others questions determine if the claim is accepted or not. Sure, if you are on the way to a job site and an accident occurs, you may be entitled to some benefits but there is no guarantee.
 
 
Example #5: I was horsing around with another employee when I fell and injured my hand.
Believe it or not, some states actually cover a degree of “horseplay.” The hard part for the adjuster is determining the degree of horsing around that will lead to the claim being accepted or rejected. Typically, it is common practice for the adjuster to deny this type of claim, but not always. Statutes involving horseplay are usually vague, and open to interpretation. The employer needs to do a detailed investigation involving all parties, and the adjuster should take statements as well to see if they match up. After the investigation, consult an attorney to see if the horseplay act causing the injury would be covered.
 
 
Summary
Just because you suffer an injury at work does not mean you have automatic coverage under the Workers Compensation Act. Every scenario is unique, and most injury details are not the same. The employer plays a very important role in the initial investigation of all claims, and the more details provided to the adjuster, the better decision the adjuster can make as to claim compensability – or not.
 
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. See www.LowerWC.com for more information. Contact:RShafer@ReduceYourWorkersComp.com.

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.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

How Average Weekly Wages and Work Comp Indemnity Payments Work

The termaverage weekly wage” is often used in the discussion of workers' compensation claims. As it is the foundation on which almost all workers' compensation indemnity payments are based, let's discuss it in detail. 
The average weekly wage (AWW) is the amount of income the employee earned per week at the time of the workers’ compensation injury or work related illness. [In some states it is referred to as the “state average weekly wage” (SAWW). In this discussion we will use AWW throughout]. 
Determination of the AWW:
The amount of income an employee averages per week seems simple enough, but when state governments get involved in the determination of how AWW is calculated, it becomes more complex. 
Most states calculate the average weekly wage over the last 12 months, but in a few states the average weekly wage is based on the last 90 days. Let's look at some of the ways AWW can be calculated (with the caveat that with 50 states, the U.S. Territories and the District of Columbia each doing their own thing, there can be an exception to almost all of the following points):
 
1.     If the employee's weekly income does not change, for instance the employee is on a weekly salary, the amount of the AWW is easy to determine. 
2.     For workers paid a monthly salary, the monthly salary is multiplied by 12 and then divided by 52 to determine the AWW.
3.     For hourly workers, the number of hours per week is multiplied by the hourly wage to get the AWW.
4.     For workers paid by the number of pieces of production, or paid commission or paid mileage (truck drivers paid by the mile), the total income earned over the last 12 months is divided by 52 to determine the weekly income.
5.     For workers paid a daily rate or on a per diem basis, the daily amount is multiplied by the number of days worked in the last 12 months and then divided by 52 to determine the AWW.
 
General Add-Ons:
Just when you think you understand the calculation of the AWW, several states, territories, and District of Columbia have their own ways of adding to the AWW calculation. Depending on the jurisdiction, the AWW has been expanded to include:
 
1.     Overtime pay
2.     Bonuses
3.     Health insurance and dental insurance if the employer does not continue to provide it while the employee is off work due to the work comp claim.
4.     Rent, housing, lodging if the employer was providing it before the work comp injury but does not provide it after the work comp injury.
5.     Tips over and above the hourly rate paid to waiters and waitresses.
6.     Per diem amounts paid over and above salary or commissions, if they are reported as income for income tax purposes
 
Cringe Factor Add-Ons:
Now that you think you understand the AWW is the employee's income plus any other employer provided compensation, we get some more add-ons causing employers to cringe when they hear about them . . . such as:
 
1.     The double dippers: Your employee John Doe started working for your company two years ago. Doe's regular hours are 8 a.m. to 4 p.m. Two weeks ago Doe took a second job working 4:30 p.m. to 12:30 a.m. Today he hurts his back at your company (really questionable injury, but he will be out of work a couple of months before the adjuster and/or nurse case manager can convince the doctor to get him back to work). 
Guess what . . . . in most states your company does not pay John Doe the AWW based only on your company's job if he is also unable to work his second job. The employee is paid the AWW plus add-ons from both jobs by your work comp insurance! [In an effort to be fair to employees who work two jobs, the states who require this add-on have inadvertently created a situation sure to invite employee fraud].
2.     The gone but not forgotten worker: Employee Jane Doe (sister of the double dipper John Doe) also worked for your company. After returning to work after her own work comp injury, she leaves your company's employment for a much higher paying job at her new employer. After working for her new employer for over a year, Jane Doe's medical condition worsens from her work comp injury sustained when she worked for your company and now she is unable to continue to work per the work comp treating doctor. 
Guess what . . . . in some states you reopen her work claim, but you do not pay her the AWW from her work at your company — you pay the AWW for the work at her new employer!
 
Calculation of Benefits Using the AWW:
Each of the states, territories and DC use a percentage of the AWW to calculate the amount of benefits to be paid. One hundred percent of the AWW is not used because the employee does not “take home” his total income. The employee has to pay out of the AWW his federal income tax, state income tax, city income tax, social security, Medicare, benefit contributions, union dues, etc. 
While most states used sixty-six and two/thirds percent (66.66%) of the amount of the AWW to calculate indemnity benefits, a couple of states use seventy percent (70%) and a few states use eighty percent (80%) of “spendable income” or “after tax” income.   All jurisdictions impose a cap, a maximum amount of benefits the employee can receive each week, regardless of the AWW. The states vary tremendously in this aspect, with state caps on weekly indemnity benefits at the top of the range being more than twice what the state cap amounts are on at the bottom of the range.
While two-thirds of the AWW seems reasonable, in most work comp claims the employee is receiving less than he would have if he was not injured and continuing to work. This encourages the employees to return to work when they are physically able to do so. However, in some states that have high state income taxes and the state weekly indemnity benefits cap is high, the employee is receiving more per week on work comp then he would take home after paying taxes, benefits, union dues, etc. This situation makes it difficult for the workers’ comp adjuster to get some procrastinating employees back to work.
Some states require the work comp adjuster to submit to the Industrial Commission a state form outlining how the AWW was calculated and how the indemnity benefits are calculated.   Other states do not get involved in the calculation of the AWW and the resulting indemnity benefits unless a dispute arises between the employee and the employer over what is the correct amount of the AWW. (workersxzcompxzkit)
Summary:
As the indemnity benefits are based on the AWW, it is in the employer's best interest to be sure the employee's AWW information reported to the work comp claims office and/or the work comp insurer is correct. If there is any doubt on what to include in the AWW for your state, use your state's form for reporting the AWW information, if your state uses one. If not, consult with your work comp adjuster on any questions on how to calculate the AWW for your particular state. Also, you may contact us for assistance. See: 50 State Laws and Regulations at http://reduceyourworkerscomp.com/laws_and_regulations.php

 

Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.


Podcast/Webcast: Claim Handling Strategies
Click Here:

http://www.workerscompkit.com/gallagher/podcast/  Claim_Handling_Strategies/index.php 
 


Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
 
©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ ReduceYourWorkersComp.com.

Bartender Struck By Stray Bullet Awarded Workers Comp Benefits in Illinois

Noted authority of workers’ compensation, Thomas Robinson, J.D., Lexis Nexis primary upkeep writer, has found an interesting case this week for us. Lexis Nexis Workers Comp Law Center has many interesting writings about current cases.

Here’s what happened
Claimant, a bartender at one of her employer’s restaurants, sought workers’ compensation benefits for injuries she suffered when she was struck in the back by a stray bullet.  The incident occurred near midnight, when claimant was standing at the bar near the front of the employer’s premises.  The stray bullet was fired from outside the restaurant.  It shattered the employer’s large front window before striking claimant. It was later learned that the shooting was gang-related; two men were charged and convicted in connection with the incident. Following a hearing, at which the employer introduced expert evidence that anybody in the restaurant or passing by it that evening faced the same risk of injury as claimant, an arbitrator nevertheless found claimant proved that she sustained accidental injuries arising out of and in the course of her employment and awarded claimant permanent total disability (PTD) benefits for life pursuant to section 8(e)(18) of the Act (820 ILCS 305/8(e)(18) (West 2004)).  The arbitrator also ordered employer to pay $ 80,108.19 for necessary medical expenses incurred by the claimant.  The Workers’ Compensation Commission affirmed and adopted the arbitrator’s decision. The circuit court confirmed the Commission’s decision and the employer appealed.

Here’s how the court decided
An Illinois appellant court, in Restaurant Dev. Group v. Oh, 2009 Ill. App. LEXIS 407 (June 16, 2009), affirmed.  The court observed that there are three types of risks to which an employee might be exposed, namely: 1) risks distinctly associated with the employment; 2) risks which are personal to the employee; and 3) “neutral risks which have no particular employment or personal characteristics.”  Noting further that stray bullets were generally considered to be neutral risks, the court indicated compensability centered on whether the conditions of the employment increased the risk of being struck by a stray bullet over the risk faced by the general public. The court found that the manifest weight of the evidence established that claimant was exposed to a stray bullet risk to a greater degree than that to which the general public was exposed.  The employer’s restaurant was located in a high crime area with rival street gangs feuding over turf. Crime data revealed that the restaurant was located in a police district whose crime rates for violent crimes and shootings placed it in the top 25% to 33% of all police districts in the City of Chicago. The assailants lived a short distance form the restaurant and were shooting at a rival gang member driving in the neighborhood. Claimant bartended near the restaurant’s floor-to-ceiling windows, adjacent to the street, where her body was exposed. Further, there was a history of gunfire in the neighborhood spanning many years. Claimant’s employment required her to work late at night, on weekends, when most of the shootings were taking place. All this supported a finding that claimant faced an increased risk of being struck by a stray bullet.

See generally Larson’s Workers’ Compensation Law § 7.01.

Author: Tom Robinson, J.D.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation ReduceYourWorkersComp and WorkersCompKit

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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.

©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

When Is a Claim Compensable Workers Compensation and Recreational Activities

Tennessee’s SB 1909 Impacts Awards for Recreational Activities

With the stroke  of a pen, Tennessee Governor Phil Bredesen signed SB1909 into law, prohibiting workers’ compensation awards when an injury occurs during an employee’s voluntary participation in recreational, social, athletic or exercise activities on or off the employer’s premises.

The bill passed  the Tennessee House and Senate unanimously by margins of 97-0 and 31-0, respectively.

In order for  an injury to be compensable under workers’ compensation, the previous law generally required an injury must happen out of and during an employee’s employment.

In Gooden v. Coors  Technical Ceramic Company, 236 S.W.3d 151 (2007), the Tennessee supreme court held that a fatal heart attack suffered by an employee during a voluntary basketball game played on the employer’s premises during a work break was a compensable injury because the employer was aware its employees regularly played basketball games on the premises during breaks and it acquiesced to such activity.

With passage  of SB1909 (State Senator Mark Norris), introduced back in February, awards for workers’ compensation are prohibited when an injury or death is due to an employee’s voluntary participation in recreational, social, athletic, or exercise activities whether or not the employer pays some or all of the costs thereof, unless:   

Participation was  

1. Expressly or implicitly required by the employer.
2. Participation produced a direct benefit to the employer beyond improvement in employee health and morale.
3. Participation was during work hours and was part of the employee’s job duties. Or
4. The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by, or maintained by the employer on or off the employer’s premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or cure the unsafe condition. (workersxzcompxzkit).

Author:  Robert Elliott, J.D.

Click on these links to try it for yourself.
WC Calculator: www.ReduceYourWorkersComp.com/calculator.php
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Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.

©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

Can Traveling Healthcare Providers Receive Workers Compensation Benefits

It all depends on where you live, says Tom Robinson, JD, writer for Lexis Nexis Workers Comp Law Center.

In-Home Health Care Provider Seeks Workers’ Compensation Benefits for Injuries Sustained While Traveling From One Patient’s Residence to Another

Here’s What Happened

A home health care aide was employed by a firm to provide in-home health care services to some of the firm’s clients.  She traveled in her personal vehicle to the patients’ homes according to a schedule provided by her employer.  She had no office at the employer’s facilities, but typically drove to the employer’s premises each Friday, where she picked up her work schedule that began the following day.

Beginning each Saturday,  she drove her personal vehicle from her home to her first assignment of the day and then drove from that assignment to any other client’s home, all according to her assigned schedule.  She was not paid for travel time.  She had to note when she arrived and when she left each client’s home and was paid only for her time with each patient.

On the day of her injury, claimant was scheduled to visit the home of two patient/clients.  She stayed at the first patient from approximately 7:00 a.m. to 11:00 a.m., then drove toward the second residence.  On the way she stopped to pick up a sandwich for lunch.  When she was approximately 3 miles from the first patient’s residence, she was involved in a motor vehicle accident.

She sought workers’  compensation benefits for her injuries.  The employer, a self-insured firm, rejected the claim as not arising out of and in the course of the employment.

Here’s How the Court Ruled

An Ohio appellate court,  in Gilham v. Cambridge Home Health Care, Inc., 2009 Ohio 2842, 2009 Ohio App. LEXIS 2400 (June 15, 2009) affirmed the trial court’s holding that claimant was a fixed-status employee and as such was subject to the “going and coming” rule.

Under that rule, an employee who sustains injury while traveling to and from a fixed place of employment is precluded from participating in the workers’ compensation fund.  The appellate court noted that the accident occurred on a public highway, that the employer exercised no control over the scene of the accident, and that the presence of the employee at the scene of the accident served no benefit to the employer.  (workersxzcompxzkit).

According to the court,  based upon the totality of the circumstances, claimant’s travel between her first and second assignments did not establish a causal connection between her injuries and her employment. 

Comment

If you, like me, fail to see how an in-home health care provider, who has no office, utilizes no facilities at her employer’s premises, and whose very service is to travel to different residences to provide care for home-bound patients can be called a “fixed-situs” employee, you may agree with a recent Pennsylvania case with similar facts and the opposite result.  See Jamison v. Workers’ Comp. App. Bd., 955 A.2d 494 (Pa. Commw. Ct. 2008).  (Italics added.)

See generally  Larson’s Workers’ Compensation Law § 14.02.

Author: Tom Robinson, J.D.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
http://law.lexisnexis.com/practiceareas/Workers-Compensation

Click on these links to try it for yourself.
WC Calculator: www.ReduceYourWorkersComp.com/calculator.php
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WC 101: www.ReduceYourWorkersComp.com/workers_comp.php

Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.

©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com

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