Competition can be a great motivator. Companies that compete effectively can find ways to offer superior products at better prices than others in their industries. Individuals who compete within companies can drive better performances – most of the time.

But competition among divisions can also be detrimental to an organization when rivalries are so strong they hold a company back from achieving its best results. Unfortunately, we see this all too often in the workers’ compensation system. Instead of sharing information, departments keep things close to the vest, leading to inefficiencies and unnecessary costs. Breaking down silos should be a goal of any organization aiming to achieve optimal outcomes for injured workers and avoiding wasted costs.

Why Silos Exist

It’s no secret that collaboration leads to better results. But many organizations from all industries nevertheless struggle with the concept.

In a survey by McKinsey & Company several years ago

• 80 percent of senior executives said that “effective coordination across product, functional, and geographic lines was crucial for growth.”
• However, only 25 of the same respondents said their companies were effective at sharing knowledge across boundaries.

In workers’ compensation, this is especially counterproductive. HR, Risk Management, Accounting, and Safety departments all have information that, when taken as a whole, could expedite and streamline the claims process. But instead of working in concert, these divisions often won’t share information and may even work against each other.

The problem is the employees within each division have no incentive to work across silos. Rather than seeing one another as a means to a shared end, they view other divisions as competition. They believe if another division shines, their division will lose standing and be deemed less valuable.

Within these silos, employees develop negative views and attitudes toward workers in other divisions. They may come to view one another as unintelligent or unqualified and see other divisions and the employees within them as hurdles to getting their jobs done. Eventually, not only do divisions not speak with one another, but there is a breakdown in relationships among individuals.

There are a variety of things lacking when divisions work in isolation from one another:

• No overall vision.
• No common goal.
• Lack of an ideal of what the organization is trying to accomplish.
• No trust among divisions and their employees.
• Little or no respect for employees in other divisions.
• No understanding of what each division and each person is doing.

At this point, employers’ efforts to seek collaboration among various departments often fall flat.

What To Do

Clearly what is needed to remove the silos is to get everyone on the same page. While that may seem easier said than done, there are steps organizations can take to get employees throughout the company to work together. But it takes efforts on a couple of levels.

Organizational level

1. Companies need to have a vision and clear goals. C-suite executives need to identify what they want the company to accomplish.

2. Goals need to be clearly communicated to the entire organization.

• Managers and supervisors should be made to understand and embrace the organization’s vision and goals fully and share these with their employees.
• Company newsletters, brochures, emails and other sources of internal communication should continually drive home these points. They need to become part of the company culture.
• The CEO should convey the message of the vision and goals of the organization either through a letter to all employees or a video.
  • It should explain the impact that workers’ injuries have on the organization; such as smaller raises or bonuses, fewer career growth opportunities, and less money for capital expenses.
  • It should also include the idea that the organization truly cares about its employees, and underscore the negative effects an injury has on the affected worker, his family, and his colleagues.

3. Explain that by working together as an organization, everyone’s jobs can be made easier and there are opportunities for companywide improvement; when divisions work collaboratively, the entire organization benefits.

Individual Level

Personal relationships among employees in different divisions may need to be mended. This work, again, should start at the top. Relationships between division leaders may require some work.

Whether it involves division leaders or lower level employees, individual relationships can be mended. There are three steps in the process:

1. Assume the best. When divisions have viewed one another as untrustworthy competitors, there may be assumptions that the other person doesn’t know what he is doing, does not bring much to the table, and has no idea of what is important. Instead, people should go into these meetings with the assumptions that the other person is intelligent and brings value to the organization. With that as a starting point, relationships can start to change.
2. Ask other’s roles & responsibilities. Employees often have little or no idea what the other person does on a day to day basis. Start the conversation by asking what the other’s roles and responsibilities are, and their greatest challenges. This discussion can uncover all sorts of information, leading to ways each can help the other.
3. Seek common ground. The participants should find out what each other likes, what their hobbies are, how they spend their leisure time. They may have kids around the same ages, or both like to go hiking, or they may have a common physical ailment. Whatever is common to both can be a topic to begin to bridge the relationship.

Conclusion

Organizations have an abundance of information at their disposal that could vastly improve their workers’ compensation systems. Unfortunately, many don’t take advantage of it due to the separations of divisions. By breaking down the silos, organizations can benefit from the synergism of working collaboratively and see improved success rates.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center .

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

©2018 Amaxx LLC. 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.

Navigating the minefield of workers’ compensation and other absences can be a nightmare for employers. The patchwork of policies and procedures overseen by multiple departments or vendors can result in compliance problems as well as decreased morale for workers, plus a waste of money and resources.

By integrating leave programs, employers can see significant cost savings, fewer days away from work and improved productivity. But going from a mixture of rules and regulations to a single, streamlined system can be daunting, especially for smaller organizations.

The Challenges

There are a variety of federal, state and municipal programs. The Family Medical Leave Act, Americans with Disabilities Act, short- and long-term disability, and workers’ compensation are just some of them, along with state, county and municipal leave laws and employer-specific leaves. Some may overlap. Some involve payments, while others do not. And they change frequently — through amendments or the implementation of new leave laws. Keeping up to date with them all and ensuring you administer them properly is a challenge for even the largest employers.

There are likely multiple contact points, depending on the type of leave involved. Each leave involves forms that must be filled out and, sometimes, require payments. If outside vendors are used, inaccurate information sharing may result in payments being too little or too much. Employees may receive information from multiple vendors, causing confusion and frustration. Finally, it’s nearly impossible for an organization to analyze the data and understand the impact of absences — unless the systems are integrated.

Getting a streamlined, integrated system involves collaboration, more than anything. Where there are silos within a company, those within them must be willing to work with one another and share information. At the least, HR, legal, benefits and risk departments must cooperate.

Leave Integration Programs

Integrating occupational and non-occupational leave programs can take a variety of forms, from the simple to the highly sophisticated. The more advanced models include wellness, disease management and even employee assistance programs.

Whatever type of program is implemented, integrating leaves generally results in overall lower costs and possibly better outcomes. You can start the process by taking stock of what’s already in place at your company.

• Look at your data. Starting an integrated leave program should begin with an assessment of the amount and cost of absences taken annually by employees. Employers who do so typically find their employees are taking off more time than they realized, pointing to the need to take action.
• Talk to your partners. Third party administrators and insurers, along with any vendors you use should be willing to provide data and other information that sheds light on the management of your leave programs; as well as what they do for other employers..
• Read the handbook. Take a close look at the policies and procedures already in place for various leaves. You may find some that duplicate or contradict one another.
• Bring in the troops. Departments that have any responsibility for absence programs should be included in discussions right from the start of the integration process. You might find ways to automate some of the existing processes.

Building the Program

Once you’ve seen a picture of your company’s leave programs and looked at the data, there are several key factors that can help make for an effective IDM program.

1) Single Claim Intake Source.

This will reduce administrative costs and make it an easier, more pleasant experience for employees. Having one phone number is a great way to ensure all leave requests are captured in a single source. This could also allow for a single provider to contact the worker if their leaves constitute more than one, such as short-term disability and FMLA.

2) Communication 

Any and all changes to leave policies should be shared with managers, supervisors and employees. It’s imperative that everyone has the most up to date information.

3) Collaboration

As explained above, integrating your absence management programs should involve personnel from several different departments who must work together. Workers’ compensation, group heath, disability insurers, legal counsel, and any other organizations that manage employee health should discuss how they can combine their data and resources. During such meetings, goals should be set and roles and responsibilities should be discussed and agreed upon.

4) Data Sharing / Tracking.

Employers can look at trends for such things as frequency, duration, cause, occupation and business unit to determine if and where changes could be made to reduce costs and improve productivity.

 5) Updates

Changes in laws that affect any of your leave programs should be brought to the attention of all involved. The team can assess the changes and determine how to proceed. There should be a process established to update leave programs depending on changing needs of your company. In addition to tracking legal and internal changes are technological advancements that should be considered. For example, having an app for employees to report absences might be useful.

6) Uniformity.

It is crucial that leave policies be administrated consistently and clearly.

7) Evaluating The Program.

Depending on how the program is handled, you want to be able to see the effectiveness. It may involve a software system or outsourced organization. Ideally, you should be able to identify lost time, costs and return-to-work rates, and see what if any changes should be made.

8) Keep Good Records.

Proper documentation will ensure your company is not on the losing end of a complaint.

9) Consider Outsourcing

Many employers have taken this option due to the complexity of coordinating leave programs. It may not be appropriate for your company, but you might at least want to shop around.

Conclusion

Integrating your leave policies can reduce costs, improve outcomes, and streamline efficiencies. It is not a quick process; but companies that have done so report improved compliance, increased control and higher employee engagement.

For additional information on workers’ compensation cost containment best practices, register as a guest for our next live stream training.

Author Michael Stack, Principal, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center. .

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: https://blog.reduceyourworkerscomp.com/

Live Stream WC Training: http://workerscompclub.com/livestreamtraining

©2017 Amaxx LLC. 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.

The trust funds for the Social Security disability benefits program are nearly exhausted and will be gone by 2016. What consequences are there for an employer’s workers compensation costs?

Laws Do Not Exist In a Vacuum

Laws do not exist in a vacuum. They are likened to a spider web – put tension on one strand and all the others move. If the Social Security system is in crisis, which it soon will be, the only options are to reduce benefits or increase costs, probably both. Which means that an employer’s workers will search for other programs to supplement or replace Social Security. Since nearly all Social Security lawyers handle workers’ compensation claims, the results will be obvious – more workers compensation claims against employers.

However, employers can greatly reduce the number of workers compensation claims which might otherwise occur if they take a vital step. Any time a worker or former worker is seriously disabled offer to assist in the Social Security disability claim.

Your correspondent learned decades ago that a worker who receives assistance from an employer on Social Security disability will hardly ever file a compensation claim for the disabilities that are not obviously past of any accident – principally chronic back disorders or cardiovascular events, both of which are common in older workers.

What An Employer Can Do To Assist on a Social Security Claim

What can an employer do to assist on a Social Security claim? Provide vital information which no medical or vocational expert can offer – details of the workers job, its requirements (physical task, frequency, etc.) and a first person description of what limitations the worker faced in the final months on the job. Surprisingly, in most Social Security claims the judge must rely on educated guesses at best since most workers, even though they try hard, are not the best source of information.

It is also permissible for an employer to suggest to the worker that it would be a good idea if the Social Security attorney assisting the worker give the employer a call. The results of such cooperation and team work are impressive.

No claim is hurt by the addition of high quality information, yet most disability claims of any sort have an employer’s presence. Don’t be afraid to volunteer for the task.

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  

©2015 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

Employers interact with employee disability through a number of laws. Until now, there has been little attention focused on how to coordinate statutory compliance to achieve better overall results. Workers compensation, in particular, has operated with little or no coordination with other laws.

Recent efforts, however, have demonstrated that dramatic lowering of new filed comp claims and lowered x-mods can be achieved with inexpensive measures that are only slight extensions of measures already being taken by employers in high comp rates industries such as transportation, construction and many types of manufacturing.

The new efforts require training of key people to slightly modify practices already in place. Virtually nothing has been written about the possibilities. The entire field of simultaneous disability interactions through two or more laws contains surprising results, no longer theoretical since a small group of employers are presently using the methods with entirely favorable results.

Methods for Improving Disability Management

There are several key methods that improve disability management.

1. Improved reporting of first reports of injury.

The number of employer first reports of injury that are filed with gaps in vital information is too large to be due to occasional oversight. The unanswered questions on first report of injury forms (FROIs) is one of the primary reasons for unnecessary delay, and late investigations of questions that should have been answered within a day or so following an injury.

This problem can be solved with a short period of training and a follow up period of working with the employer on actual new FROIs.

2. Coordination of workers compensation with other laws.

Certain types of employers have powers under federal laws which are unappreciated. Transportation companies have the power, under DOT regulations and construction companies, under OSHA, to schedule IME examinations to investigate new claims. Such exams can be done within the first week after an accident report, far faster than the several weeks to several months (and even several years) common in workers compensation claims. These examinations restore the primary control to the employer.

The employer must schedule and pay for the exams. There is no outside control or interference by the carrier/TPA, a comp board, or attorneys; they are not even notified of such exams and the results are sealed without a HIPAA or a valid subpoena.

In addition, other laws, such as FMLA, UI, SSDB, STD, LTD, negligence, no fault MVA, discrimination, ADA and a wide variety of other state and local laws and ordinances contain similar provisions for investigation by the employer.

3. Searches for prior medical records.

Obtaining prior medical records as soon as possible is the single greatest asset in disability control. However, most comp carriers make little or no efforts until a claim has become large and dangerous. Even then, efforts are hampered by state work comp laws. An employer using investigations allowed under other laws can quickly obtain HIPAA releases and have prior medical records in a few weeks, sometime as quickly as a few days, after an injury.

These records will prevent inconsistencies, concealment, exaggeration and incorrect causal relationship from being introduced into other records, such as a workers compensation claim file.

4. Central control of communications and records.

An employer using proactive measures, becomes the center of communication and the central repository of information. This leads to an entirely different role for the employer, which replaces having the comp carrier/TPA as the sole party interacting with a worker.

5. Retaining a proper relationship between the employer and employee.

A proactive employer, using several laws, retains an active role in the disability process. Employees with legitimate claims are pleased to have the employer involved. Often the employer can defuse needless delays and controversies caused, not by the employer, but by the carrier/TPA. Without the employer’s assistance, many unnecessary delays can result in disastrous delays in benefits to a family.

Exaggerated claims, on the other hand, are often dropped when the employer is the first to ask the correct questions and schedule the first exams.

The benefits of improved employer involvement cannot be overestimated.

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

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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

In the first decades of the 20^th Century, work comp was the only game in town for disabled workers. This was the time before unemployment benefits, Social Security disability, FLMA, ADA, etc.

As the new laws appeared, the employer saw no advantages – they thought – and, instead, were burdened with an avalanche of compliance paperwork. Few bothered to read the full text of the new laws, and the volumes of regulations that accompanied them. (Nearly all are federal laws)

Federal Laws Mixed With State Laws Create Inconsistencies

When these federal laws are compared to provisions in state comp laws, surprising things emerge – such as inconsistent definitions of disability and fitness to work. Compare work comp laws with the Americans with Disabilities Act (ADA). In NY, work comp presumes an inability to work which the employer/carrier can overcome only with overwhelming medical evidence (or some “gotcha” surveillance videos showing undisclosed work).

After 1993, however, the comp laws had to co-exist with ADA, which presumed that most disabled people were capable of full earning capacity, with reasonable accommodation. So one law was presuming disability, and awarding billions in benefits, while another was presuming no loss of earning capacity, and threatening the employer who actually believed the comp board findings with penalties.

Opportunity With DOT Medical Exams In Workers Compesation for Trucking

A few years ago, your correspondent discovered that many, if not nearly all, serious comp claims by truckers had workers who successfully renewed their DOT driving certificates with a medical exam showing no inability to drive a heavy vehicle. Yet, the exams came in the middle of comp claims alleging ongoing damage to limbs that would have made it impossible to drive a heavy vehicle.

The “unexpected consequence” moment came when, after much paperwork to obtain releases, the DOT medical exam was compared with the comp medical records. The worker had to choose. Which version of the facts that he gave to the doctors was the truth? Most had to opt for continuing to keep the DOT certificate and forego further disability on the comp claim.

A careful review of two laws governing disability, especially when one is federal and one is a state law, shows many cases of inconsistent definitions. But it also provides unique opportunities to discover inconsistent statements, since few people believe that anyone will take the considerable trouble to locate and produce the inconsistencies (both made under penalty of perjury).

Few Attorneys Knowledgeable of Both Laws

Few comp lawyers have been required to read the co-existing laws. And the specialists who deal with the other laws are grateful that they have nothing to do with comp. As a result, little, or nothing at all, has been written about the possibilities of comparing the data contained in each file. And each file is protected from release by HIPAA and various state laws. However, the barriers can be overcome by those willing to do the extra work

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.  

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

The American Medical Association (AMA) has recently listed obesity as a medical condition, as opposed to it being a result of easting choices. Can that result affect work comp claims?

Prior Medical Conditions Can Be Apportioned

Yes. Prior medical conditions can, occasionally, be apportioned with disability in a later comp claim. And concealing a prior medical condition can result in loss of future wage loss payments. Neither of these can interact with a comp claim if the prior condition is seen only as the result of voluntary choices.

The consequences for claims would be larger if second injury funds were not vanishing, since obesity affects one third of all people with serious comp claims, and would have resulted in far more successful applications by carrier for reimbursements.

However, apportionment remains a possibility. Recent case law in New York expands apportionment of comp claims with prior conditions, even if they are not the subject of prior comp claims. And “morbid obesity” was permitted as a pre-existing condition which would permit recovery from second injury funds. So, obesity may become a new, major, issue in comp claims.

Prior Obesity Must Be Disclosed

What about concealment of obesity? Concealment of significant conditions can result in loss of benefits. But concealment does not apply to obvious conditions, such as an amputated limb. And obesity is obvious and cannot be concealed, or so it would seem.

But prior obesity which has been treated can now be considered an illness which must be disclosed in a comp claim. And that can be an embarrassing intrusion if it becomes a new subject for claim investigations.

Significant Change Similar to Alcohol & Drugs

Prior substance abuse, alcohol and drugs, were also considered personal failings, rather than disease, until they began to be described as “obsessive-compulsive disorders”, often resulting in hospitalization at medical facilities. And sympathy for the conditions was far less than for obesity, even as substance abuse became the basis for successful reimbursement claims.

This is another change which , originally, seemed to have no effect on work comp. But the history of work comp is cluttered with unintended consequences.

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.  

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

A proposal is pending to make a Social Security approval of SSDI benefits proof of total disability under the NY work comp law. Presumably, it is believed that this will reduce needless duplication adjudications of disability in work comp claims.

If so, the Board may be in for a series of rude surprises. The differences between SSDI entitlement and NY Workers Compensation law “total” are so great that they bear little resemblance to each other.

Differences in SSDI and Workers Compensation Total Disability:

1. The burden of proof is different. WC decisions must be supported by a “scintilla of evidence. SSDI requires “preponderance of the evidence.

2. Causes of disability may not be the same. SSDI considers the cumulative effect of all conditions. NY work comp considers only those disabilities related to the comp claim.

3. Definitions of disability are not the same. SSDI permits payments unaffected by casual earning of several hundred dollars a month. Work comp permits no earnings while on total disability, except for a person’s claim that results in 100% loss of vision.

4. Duration of disability requirements are different. Work comp requires evidence of permanency into the indefinite future for permanent total. SSDI requires only one year of total and none of that is required to extend into the future. At many SSDI hearings, the applicant has already returned to work.

5. In SSDI, payments can overlap full work activity for nine months during a trial work period, even though the earning may be greater than the pre-disability levels. Work comp permits no trial work period with concurrent payments for total disability.

Board Should Decline Proposal

In addition, a full transcript of the SSDI hearing may be necessary and, although obtainable, the process is neither swift nor easy.

The Board may discover that the road to this goal is partly paved with good intentions, but mostly mixed with sharp edged boulders.

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.

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

104 Week Cap of Temporary Total Disability Deemed Unconstitutional

On 2-28-13, the First District Court of Appeals (DCA) ruled Florida’s 104 week cap on temporary total disability benefits to be unconstitutional as a denial to courts and a denial of administration of justice without delay.

Bradley Westphal, a firefighter and paramedic for the City of St. Petersburg injured his back and knee while working in 2009. Mr. Westphal had back surgery and incurred nerve damage in his leg.  The claimant exhausted 104 weeks of temporary total disability before he reached a level of maximum medical improvement. As the claimant had not reached MMI after exhausting temporary total disability, he was not eligible for temporary partial disability (TPD) or permanent total disability (PTD). The City of St. Petersburg ceased temporary total disability payments.

Westphal applied for permanent total disability benefits but was denied by a work comp judge as he was not at maximum medical improvement and it was considered too speculative to award the claimant with PTD benefits. Nine months after the temporary total disability benefits had been exhausted, enough medical evidence was available for the claimant to be awarded permanent total disability. The employee then brought suit against the City of St. Petersburg and the State of Florida for temporary total disability benefits during the nine month statutory gap in disability benefits.

Question of Gap In Benefits Between Temporary Total Disability and Temporary Partial Disability

In a previous DCA case, Matrix Employee Leasing, Inc. vs. Hadley, the DCA had ruled there is a statutory gap in benefits between the expiration of 104 weeks of temporary total disability benefits and temporary partial disability benefits when the employee does not reached MMI after 104 weeks. The question of the constitutionality of the law was not raised in Hadley, so it was not addressed. Westphal’s attorney seeing the opening the Hadley decision had created, questioned the constitutionality of the 104 week limitation on temporary total disability benefits.

New Law Required 260 Weeks of Temporary Total Disability

The DCA when given the opportunity to review the constitutionality of the 104 weeks of temporary total disability benefits decided the statute could not stand as written. The DCA decision was based on workers’ compensation being the exclusive remedy for injured workers without giving the injured worker a system to redress for the economic damages incurred after the 104 weeks of temporary total disability are exhausted. By declaring the temporary total disability limitation as unconstitutional, the court revived the 1991 temporary total disability law requiring employers/insurers to pay 260 weeks of temporary total disability benefits.

In what was probably an oversight by the DCA, they did not address the constitutionality of temporary partial disability being limited to 104 weeks, only temporary total disability. The affect the temporary total disability decision will have on TPD is unknown at this time, but we would speculate an enterprising employee’s attorney will now definitely question the constitutionality of TPD being limited to 104 weeks and will achieve the same results as Westphal.

Fortunately, the DCA did rule that their decision applies to the Westphal case and future cases, but declined to make their decision retroactive to prior work comp claims that have become final. The DCA decision is final and binding.  However, in Florida, whenever a District Court declares a statute to be unconstitutional, there is an automatic Supreme Court review. Unless, the Supreme Court overrules the DCA, all open and future claims will be governed by this DCA decision.

Employers Face Increase in Indemnity Exposure

Employers and insurers who have open temporary total disability claims where the employee now seeks to continue temporary total disability benefits beyond 104 weeks should have their defense attorney stay or continue any hearings on the issue until the Supreme Court rules.

The major immediate impact of the DCA decision is the increase in indemnity exposure to employers and insurers. This will increase settlement value of all open temporary total disability claims as the plaintiff attorneys will know the employer/insurer has much more to lose if they do not settle with the injured employee. A secondary impact is the impetus it will provide to seriously injured employees in Florida to malinger.

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.

©2013 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.