Can a worker who files a claim for unemployment and loses because of a justifiable dismissal then file for workers comp? Yes. And it happens all the time. The danger for employers is that the existence of the unemployment claim is not automatically known to the carrier or the New York Workers Comp board, causing many comp claims that could be defeated to be allowed at great expense, ultimately, to the employer.

The Act Of Filing An Unemployment Claim Contradicts Workers Compensation

Why would an unemployment claim lead to defeat of a later comp claim? This is due to the fact that many workers file a comp claim as an afterthought only after they have lost an unemployment claim. However, in filing the unemployment claim the worker alleges that he/she was working without problems and was unjustifiably dismissed, or was harassed into leaving. However, in the later comp claim, the worker alleges that lost time was solely due to an injury (and fails to mention the unemployment claim).

Such situations are far from rare, but most go unnoticed because the Board and the carrier are not alerted to the existence of a prior unemployment claim. An employer is the best source of information but many, if not most, employers think that such information is automatically available to the Board and the carrier. The power of computers is probably responsible for that misconception.

Employers Should Notify Carrier & Workers Comp Board Of Unemployment Claim

If a prior unemployment was disallowed prior to the comp claim, the employer has a simple method of preventing a claim disaster. Simply notify the carrier, with a copy to the Board, of the existence of the disallowed unemployment claim. Attach a copy of the decision disallowing the claim, plus a copy of the claim for unemployment. Send copies of the correspondence to the worker’s comp lawyer, if he has one, or to the worker, if not.

If more detailed information is required, a copy of the unemployment hearing transcript can be obtained.

Usually, that will be sufficient to defeat or limit an unwarranted claim for compensation. Why? Because the inconsistencies between the unemployment and workers compensation claims, with conflicting facts and histories, damage credibility, at the very least, or prove filing of a false claim – which is now taken very seriously at the Board since the passage of laws in the 1990s making false representations a felony.

Employers Have The Power To Significantly Enhance Their Success

Contrary to popular belief, lawyers do not willingly take on obviously dubious matters, which is why copying everyone as soon as possible with the conflicting documents is so effective. Employers have the power to enhance the chance of success by an order of magnitude – but only if they take the trouble to communicate.

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.

Companies are always seeking innovative ideas to reduce the cost of their workers’ compensation program.  One idea that is driving these efforts is the use of baseline testing of prospective employees.

What is “Baseline Testing”

Baseline or “bookend” testing is the use of various medical and diagnostic testing in the hiring phase of new employees to develop a profile to measure subsequent workplace exposure and assist future claim investigations.  Under this process, prospective candidates are required to undergo medical tests such as electromyography (EMG), and various functional assessments.  The rationale for this process is to use those initial results as a “baseline” and compare them to post-injury findings.  This allows claim professionals to make more accurate primary liability determinations and for use by medical experts when conducting an independent medical examinations.

Legal Problems Associated with Baseline Testing

One of the obvious issues associated with this trend are state and federal anti-discrimination and hiring practice laws.  It also raises legal concerns about the limiting employment opportunities for persons with pre-existing medical conditions and their ability to seek and obtain gainful employment.  There are also numerous legal obstacles for using such tests with existing employees.  Before implementing a baseline-testing program, every program administrator should seek legal advice and understand the ramifications of such programs.

The Pros and Cons of Baseline Testing

The increasing use of baseline testing in workers’ compensation cases has called the concept into question when identifying most soft issue-type injuries and repetitive use/motion claims.

In support of using these tests, proponents argue that the medical evidence speaks for itself.  This is especially true when it is conducted by an independent doctor or specialist who does not release the results until after an injury claim is made.  It is also noted that it is impossible to change or alter the results of objective medical evidence such as film from an x-ray, MRI or other scans.

On the other hand, it is noted that objective medical evidence also needs to be substantiated by subjective complaints.  This is often the case in disc herniation cases where the subjective complaints of a worker need to be considered in conjunction with objective medical findings.

Putting Baseline Testing to Use

In order to comply with the Americans with Disabilities Act (ADA), employers need to be careful how baseline testing is used in their hiring process.  For example, conflict may arise if certain questions regarding workability are asked prior to the issuance of a conditional job offer.  There are also limits on what questions can be asked at any time during the hiring process, but generally it is permissible to inquire about the following:

• The applicant’s ability to engage in certain job functions;

• Inquiry about the prospective employee’s skills and non-medical qualifications; and

• The applicant’s knowledge of certain job functions.

The ADA also allows employers to generally do the following prior to making that candidate an employee:

• Require applicants to undergo a job-related physical ability test;

• Provide documentation in the form of medical certification that they are able to perform the essential functions of a position;

• Testing for illegal use of controlled substances; and

• Require the prospective employee to assume liability for any injuries resulting from physical testing.

It is also important to be aware of state law concerning these issues and make sure all aspects of the process comply.

Conclusions

Workers’ compensation program administrators should consider baseline testing as part of their cost-control process.  When doing so, it is important to know the applicable laws and apply them to your hiring and post-injury investigation processes.

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

©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.

In order to limit exposure under a state workers’ compensation act, employers often seek to make new hires “independent contractors.”  In forming this type of work relationships, employers are often under the assumption that the mere formality of having that person sign an independent contractor agreement sheds them of liability for workers’ compensation insurance.  While signing such an agreement is essential, companies need to evaluate carefully how they conduct the work relationship after the fact as their actions may make these persons “employees.”

Independent Contractor v. Employee

Each jurisdiction has its own statutes and regulations governing employee and independent contractor relationships and set forth the legal requirements under workers’ compensation laws.  These requirements are often found in statute or rule, and given meaning through case law interpretation by the courts.  As a result, there are important considerations when seeking to make someone a true independent contractor:

• The right of “control” as to the means and manner of job performance, including the control of assistants;
• Level of instruction;
• Amount of training;
• Degree of business integration;
• Method of payment;
• The furnishing of work tools and other materials;
• Ultimate control over the work environment and where work is completed; and
• The right of discharge.

When establishing an independent contractor agreement, it is important to analyze the agreement under the pertinent regulations.

What Else Should I Consider?

A common element that courts review when determining if someone is truly an independent contractor for purposes of workers’ compensation is “control.”  In examining this issue, it is critical to explore a variety of issues that take place during the relationship.  While interpretations vary in each jurisdiction, the following matters should be considered and adjusted if necessary:

• Actual authority over how the work is performed and who makes work-related decisions;
• Performance of work duties and who is responsible to complete tasks;
• Tools and materials used in performance of the work;
• Restrictions on the hours when work can be performed; and
• Deadlines for the completion of assignments.

One of the most important factors is the “right to discharge.”  This can vary based on the type of work someone is performing. An employer’s ability to discharge a worker likely points toward the establishment of an employer-employee relationship.  A discharge based on contractual terms typically signifies no such association.

Tips for the Claim Handlers

Claim handlers become involved in these issues when evaluating a workers’ compensation claim on the ground it might be compensable.  If there is a legal basis to deny a claim for this reason, it is important to understand the law.

• Obtain a copy of the Independent Contractor Agreement. These agreements should be in writing and if done properly, will outline the nature of this relationship and the responsibilities of each party.

• Understand the law in your jurisdiction. Some jurisdictions have very specific requirements as to what would make someone a true independent contractor.  This could include the law, rules and case law interpretations.  When in doubt, consult with an attorney.

• Investigate the duties of the Independent Contractor. This examination should include identifying information regarding how the work relationship was actually put into place.  The various factors outlined in this article should be considered as part of any investigation.

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

©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.

A website recently published a list of fifteen federal and state laws with which most employers must comply. Surprisingly, however, almost nothing has been written about how those laws interact with each other. But careful searching through laws yields undiscovered advantages for employers. What might be called “diligent over-compliance” yields unsuspected favorable results, especially on work comp cost reduction.

All Laws Operate In “The Seemless Web”

How does compliance with one law produce results in another law? That is due to the fact that all laws operate in what has been called “the seamless web”. Laws seem to operate as independent operations but, in fact, have consequences which affect all other laws.

Federal DOT Regulations & Workers Compensation

Consider, for example, federal DOT regulations for heavy trucking, especially regs for medical exams. The regs make virtually no reference to compensation claims but the DOT provisions for employer directed medical exams , anytime the ability to drive might have changed, in fact have a profound effect on shortening lost time.  The fact that few employers are aware that they can schedule such exams leads to unnecessarily extended lost time on work comp claims.

Few employers search for ways in which they can extend their compliance activities, which is why the phrase “diligent over-compliance” is used in this article. But laws are filled with similar opportunities for the pro-active. What is especially gratifying is reaping the harvest of rewards from voluntarily extending compliance activity.

Short Term Disability in NY State

Another example of “super compliance” can be found in the short term disability law of New York State. NY is one of only four states that have mandatory short term disability, which was passed in 1947. Contained in that law (NY WCL Sect 217(1)) is a nearly totally ignored provision that gives the employer the right to schedule an independent medical exam once a week for the 26 weeks of the claim (which is statutorily limited to 26 weeks). But short term disability benefits are usually paid while a contested comp claim is in progress. Therefore, the employer has a powerful tool for obtaining examination results far above what the workers compensation claim has.

(One HR manager, years ago, knew of the provisions and successfully used them to win a NY workers compensation claim, but he may have been the only person ever to do so.)

Another example is the lien that long term disability plans have in the NY work comp law. Again, this is different than the short term disability benefit lien contained in a different section and most long term disability companies do not realize it exists, much less use it. Yet the discovery and use of the section would lower claim costs on large contested comp claims.

Diligent Over-Compliance

How many “undiscovered” laws and regs exist which effect workers compensation claims? The number seems to be dozens in a state like NY, and at least hundreds, if not more, nationwide. So “diligent over-compliance” may be the claims strategy of the future.       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.

Much of workers compensation cost containment is related to good information, good systems, and proper planning. When it comes to hiring, it can be staggering to think about the amount of liability a company is taking on with each new employee. This person will be representing your company, your brand, and many times relationships with your paying consumer. These are the attributes that often get the most attention. However, when you bring on a new employee, you are also bringing on the liability that they can safely perform their job.

A Shiny Resume and a Nice Smile Doesn’t Always Mean the Applicant Should be Hired

We were all taught at an early age to not judge a book by its cover. During the interview your candidate answered all the questions, had a nice smile, and a nice resume. On the surface everything looked great and you were excited to get this person, let’s call him Tom, to work as the plant could use the help. So, you rush to get him hired and on the job. What you didn’t know was Tom had a history of workers compensation claims. In each of his last three positions he was “out on comp” for a couple of months. He’s now gotten to know the system and has you pegged for the big one, a nice settlement that can set him up for years to come. What was missing from your hiring equation is employee screening.

Every New Hire Should Go Through Screening

As any employment law attorney would tell you, it is not permissible to make hiring decisions based on an applicant’s disability, ethnic background, race, gender, age, or any other protected class. It is permissible, and highly recommended, to hire employees with the physical and mental capabilities to safely perform the job. A job analysis can establish the criteria of a job including physical requirements and job specifications. ADA-compliant job descriptions should list all essential functions of the job, so a hiring decision can be based on clear and objective criteria.

To further determine is an applicant is qualified for your position, employ these screening tools:

1) Medical testing. This will identify applicants who have existing medical limitations. All testing must be done after an offer of employment has been made.

2) Demonstration of job abilities. All new hires should be able to demonstrate they can safety perform the job.

3) Personality profiling. This provides insights into the values, ethics, and behavioral characteristics of the potential employee, including an entitlement mentality, theft, deception, cheating, drug use, dishonesty, hostility, and propensity to violence.

4) Background check. This to include hidden criminal records, drug arrest, prior employment history, prior academic achievements, prior names and addresses, prior workers compensation claims, and credit history.

Pre-Employment Screening & Testing Can Be Legally Challenged If Done Improperly

Any time you are implementing a new program, it is recommended to speak with an outside resource which complies with the Fair Credit Reporting Act and EEOC guidelines. In addition, when considering any factors found in the screening process, employers should consider the nature and gravity of the offense, as well as the length of time since the offense and the type of job responsibilities that are required in the current job. Prior arrests and/or convictions should not be used as a screening tool to remove applicants automatically.

Author Michael B. Stack, CPA, Principal, 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.

©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.

If an employer hires an illegal, does the employer lose the exclusive remedy provision under work comp? A recent decision “New York Hospital Medical Center of Queens v Microtech Contracting Corp (2014 NY Sliup Op 00897) 2/13/14” says No. The case concluded that the employer may avoid contribution in a negligence case notwithstanding that the employee is an undocumented alien.

Illegal Workers Are Treated Same As Documented Workers in Work Comp

The court referred to this as “the other side of the coin”. This means that work comp benefits are not avoided because the employee is an illegal, thus, neither is the exclusive remedy.

It may seem, at first, this is a new extension of law and illegal workers but, in fact, these issues were thrashed out in NY more than 90 years ago. When the comp law was first passed, in 1914, employers tried every means of avoiding comp liability. There were two popular approaches. One was to allege that the employee obtained the job through fraudulent concealment of immigration status. The other was that the employer/employee relationship was inherently an illegal contract and, therefore, rights under it were unenforceable. Neither argument succeeded.

The rationale, then and now, was that the worker was in fact facing the risks of the workplace and, therefore, was entitled to work comp. Similarly, such a worker was not permitted to sue the employer for negligence.

Great Discoveries Can Be Made From History

This principal is, in NY, old – very old – but seemingly forgotten. This raises another point. Most of the comp arguments that seem to be so new have, in fact, been answered nearly a century ago. (The present comp law will be 100 years old on 7/1/14.)

A famous paleontologist, Donald Baird, once said that the great discoveries of the future will be made in the basements of museums, meaning that there was more material collected than there was time to analyze it. The same holds true of court decisions.

Employers should be aware that they have far more rights than they imagine. Far more than even the comp boards imagine. So get assistance from someone who, like Don Baird, enjoys digging through the old material, now on a computer and no longer on a basement shelf.

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.

It is assumed, for the employer, solving persistent problems in work comp is a matter for the broker, agent, carrier or TPA, WC Board or an attorney – but never the employer. In recent decades, the problems have grown more complicated, due to additional laws such as OSHA and DOT.

OSHA & DOT Federal Laws Can Coordinate with Worker Comp

Few people in work comp, however, are asked to be sufficiently involved in OSHA and DOT to have deep insight into the possibilities of coordinated action. Literally nothing has been written on the subject since it was assumed that such a subject did not exist.

It comes as a surprise, therefore, that two pressing problems in work comp can be solved by using two federal laws which, at first, seem to have little direct interaction with work comp. The first problem is obtaining an early IME exam following an injury, the second is proper structure and incentives in a return to work program following extensive lost time.

A comp carrier, or TPA, finds it difficult to have an independent medical exam of an injured worker take place in NY in less than four to six months from date of accident. The normal process of a comp claim does not automatically call for an early exam. Even if it did, Board rules and procedure, plus scheduling with a doctor, mean months of waiting.

However, if an employer could schedule an IME in the first week the entire course of the comp claim would be different.

Employer Ordered Exams Have Greater Impact on Claim

Recently, attention was focused on a section of OSHA, 29 CFR 1904.5, which describes a wide variety of conditions which do not have to be reported on Form 300. But it requires a med exam, with prior med records, to decide if a reported condition is covered by the section. An employer, therefore, would be allowed to schedule a prompt exam and request HIPAA releases for prior medical records. Furthermore, a carrier or TPA would NOT be permitted to schedule such an exam, since they cannot act outside the comp law.

DOT, which normally calls for exams every two years, also permits intermediary exams, when there is any question about ability to drive a heavy vehicle and/or additional tasks such as loading and unloading.

In both cases, the exam records and results are not part of the comp record. And the costs are not added to the comp claim, or the experience modifier. However, with proper procedure and use of a subpoena, the records may be released and used in the comp claim.

Why do such exams have a positive effect on comp claims? Why are they any different from an exam scheduled by a carrier or TPA? The answer lies in “employer involvement”. Most workers are surprised, and troubled, to discover that the employer has a much smaller role in comp than they imagined. A carrier, usually unknown until an accident, is a remote stranger who speaks in incomprehensible terms and is never seen.

Employer Effort in Work Comp Claims Is Issue That Can Not Be Delegated

After a workplace accident, the first question asked of a worker by the spouse is, “What did the employer do for you?” If the answer is, “Nothing”, morale plummets. If, on the other hand, the employer remains involved, even to the point of scheduling an exam, workers, and their families, are reassured. A worker who is exaggerating, or falsifying, a report, also takes notice of such uncharacteristic concern by the employer and rethinks further efforts to overstate an injury.

OSHA and DOT, however, are just the tip of the iceberg in coordinating defense of claims. ADA, FMLA, short-term disability, SSDB and ERISA also have little explored features for defense.

The benefits, for the employer and employee, of imaginative coordination are impressive. Claims which formerly resulted in years of lost time can be limited to a few months. Unworthy claims can be substantially reduced – but only if the employer takes the trouble to be involved. This is one effort that cannot be delegated.

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.

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

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SUBSCRIBE: Workers Comp Resource Center Newsletter

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

• when an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because of the disability
• when an employer treats an applicant or employee less favorably because of  a history of a disability
• or because the employee is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if the employee does not have such an impairment)
• when an employer treats an employee differently because of the employee’s relationship with a person with a disability (even though the employee is not disabled)

• making existing facilities used by employees readily accessible to and usable
• job restructuring
• modifying work schedules,
• reassignment to a vacant position
• acquiring or modifying equipment or devices,
• adjusting or modifying examinations, training materials, or policies,
• providing qualified readers or interpreters