Different Strategies for Return to Work

 

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

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

6 Strategies To Ensure Your Employees Return to Work

 

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

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

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

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

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

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

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

 


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10 Tips to Improve Your Return to Work Program

Employers who successfully manage their workers compensation cost understand the importance of a strong Return to Work program. When an employee returns to work as soon as he is medically able, the indemnity payments are decreased, the medical and rehabilitation cost are lower and there is less of a productivity drop for the employer.  Returning to work sooner also benefits the employee by restoring a higher level of income, providing a faster physical recovery and promoting the emotional health of the employee.

 
All of the following suggestions may not apply if you already have a solid return to work program.  Utilize the suggestions, recommendations and tips that will improve your Return to Work Program. (WCxKit)
 
 
1. ALL transitional duty/modified duty assignments should be temporary.  If the transitional duty assignments become permanent assignments, you may create some bogus claims as employees seek the “easier job with the same pay”.
 
 
2. Be sure both the employee and the supervisor know and abide by the limitations and restrictions the medical provider has placed on the employee’s light duty work.  This will keep the employee from being reinjured and will keep the employee from quitting the light duty job because of the employer’s non-compliance with the light duty restrictions.
 
 
3. Make the transitional duty program a part of the business culture.  When employees know all injured employees are accommodated and required to work light duty, it eliminates resistance to the return to work program and it reduces the number of bogus claims made for financial reasons.
 
 
4. If you have multiple shifts, place the employee on the day shift while they are in the transitional duty program.  This allows for easier monitoring of the work the transitional duty employee is performing.
 
 
5. Keep all parties involved in the transitional duty program including the employee, the employee’s regular supervisor, the temporary supervisor if different from the regular supervisor and the medical provider.  All parties should be informed of any/all changes in the transitional duty work.
 
6. Work with the union steward to obtain the union’s buy-in of the modified duty positions assigned to the union members. 
 
 
7. Accommodate the employee’s medical appointments and physical therapy appointments.  Pay the employee their regular pay for the time they are at the doctor’s office or the physical therapy facility.
 
 
8.  Always be on the lookout for jobs and work that could be done by an employee with physical restrictions.  When the transitional duty job or task is identified, put the job description and work to be done in writing for when it will be needed.
 
 
9.. Do everything possible to keep the employee involved.  Integrate the transitional duty position into the mainstream of operations to keep the employee from feeling isolated. Require the employee to attend all staff or unit meetings.  Do not assign the employee to a transitional duty job that would be demeaning. (WCxKit)
 
 
10.  Interview each employee when they are released by their medical provider to return to their regular duty job.  Discuss with them what aspects of the transitional duty job they thought were beneficial, what aspects of the transitional duty job that should be changed and what ways could the transitional duty job be improved.  You will obtain valuable feedback to make the Return to Work Program stronger and better.
 
 
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. Contact Mstack@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.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contactInfo@ReduceYourWorkersComp.com.

WCRI Provides Unbiased Research to Industry

Few people realize the workers’ compensation industry is actually 100 years old. It’s one of the most-successful public-private partnerships in U.S. history.
 
 
Since 1983, the Workers Compensation Research Institute (WCRI) has been providing the public with research on WC public policy issues. Based in Cambridge, Mass., the organization includes among its members employers, labor organizers, public and private insurers, health care providers, managed care companies, and state government representatives from the U.S., Canada, New Zealand, and Australia.
 
 
Dr. Richard Victor, WCRI executive director, oversees the institute’s studies and analysis that has added ammunition for the reforms to various aspects of the workers' comp system. Prior to working at the institute, he spent seven years conducting research at The Rand Corporation in Washington , D.C., and Santa Monica , Calif. His law degree and Ph.D. in economics is from the University of Michigan.
 
 
LowerWC recently asked Victor for his impressions of the industry. What follows are some of his comments:
 
 
“One of the most important, and troubling, areas for workers’ compensation systems is to find the appropriate ways to use narcotics – and to discourage abuse and diversion. A second critical issue is to find new and innovative ways for help workers return to productive employment,” Victor says.
 
 
To this end, WCRI is conducting several research phases to help find answers for WC narcotic use and return-to-work issues, he says.
 
 
Victor says the latest trends in workers’ compensation also include medical cost management. “Medical costs now represent more than half of workers’ compensation costs in most states. There is increasing focus on pharmaceutical costs and utilization and the payments made to hospitals and ambulatory surgery centers,” he says.
 
 
Further, everyone wants to know how to save the employers money. Victor says, “Most large employers are focused on three legs of the four-legged cost containment table – risk financing, injury prevention, and claim management. The fourth leg is a large opportunity because employers have underinvested in it – improving the ‘rules of the game’ to make the system more effective for workers and more cost effective for employers.”
 
 
He continues, “This requires that employers join together to formulate political positions and strategies and gather available evidence about how a given state system is performing, how it might be improved, and what lessons can be learned from other states.”
 
 
California and Texas are good examples of where employers have taken collective action and costs have fallen significantly, Victor says. One of the chief objectives of the WCRI CompScope benchmarking studies is to help stakeholders and public officials set priorities and debunk myths.
 
 
One important part of this research is an upcoming conference. The WCRI Annual Issues and Research Conference will be Nov. 16-17 in Boston with keynote speaker Peter Barth, professor of economics emeritus at the University of Connecticut. This will be its 28th year.
 
 
The goal there to present new ideas and alternative views, Victor says. “Whether you are managing workers’ compensation claims, involved in strategic planning, concerned with medical costs and utilization, or just looking for a better understanding of workers' compensation – this is the conference for you.”
 
 
All of the sessions highlight the first presentations of the latest research findings from WCRI while drawing upon the diverse perspectives of highly-respected workers’ compensation experts and policymakers from across the country, he says. “Attendees tell us that they value the large attendance because it allows them to leverage their time while at the conference. There are also opportunities to meet and interact with WCRI researchers.”
 
 
“The most important advice I can give remains a secret until the WCRI conference, when I (present) ‘The Elephant in the Room.’ It will highlight some things that are underappreciated, but are likely to shape workers’ compensation systems for the next decade. The future is not always like the past,” Victor says. “Of course, I would like to see your readers attend to stretch their thinking, gain a competitive edge, and network with peers.”
 
 
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 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. She is the author of  Manage Your Workers Compensation: Reduce Costs 20-50% on cost containment techniques.  www.WCManual.com. 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.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact

Nova Scotia Enhances Referrals to Physiotherapy for Workers Compensation

In a recent report, a stakeholder working group has validated the Nova Scotia WCBs Direct Access to Physiotherapy Program.
 
 
"Every day we devote our energies to helping injured workers return to work in a safe and timely manner," explains Nancy MacCready-Williams, CEO of the Workers Compensation Board. "It is so satisfying to have a report from a group of workers and an employer representative that reinforces the fact the WCBs approach to physiotherapy is appropriate." (WCxKit)
 
 
The WCB introduced its Direct Access to Physiotherapy Program five years ago to provide timely and relevant information to assist injured workers with strains and sprains in returning to work as soon as possible following a workplace injury. On average, 3,700 workers with sprains and strains undergo 50,000 treatments at physiotherapy clinics across Nova Scotia each year.
 
 
The Nova Scotia Department of Health implemented direct access to physiotherapy for all Nova Scotians in 1998 but some workers raised questions and concerns about the WCB program after it was implemented in 2005.
 
 
In response to these concerns, the WCB asked a group of worker and employer representatives to share their thoughts and ideas about opportunities to enhance the Program. "Overall, the report states that direct access to physiotherapy is appropriate but it identifies some areas where we can improve how we implement the Program," explained MacCready-Williams. "We sincerely appreciate the time these worker and employer representatives have taken to provide us with advice that represents the views of a majority of the working group. We will now focus our attention on responding appropriately to the recommendations to make a good program even better."
 
 
Overall, the number of workplace injuries in Nova Scotia has gone down significantly over the past five years.
 
 
That trend, coupled with increased efforts by workers and employers to help injured workers return to work, along with the Direct Access to Physiotherapy Program, has led to a nearly 50% reduction in the length of time injured workers are off the job due to soft tissue injuries and the cost of these injuries has gone down $11 million annually. (WCxKit)
 
 
Sprains and strains account for over 50% of all injuries where a worker loses time from work.
 
 
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 or 860-553-6604.
 
 
 
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.

Five Possible Ways to Manage Pre-Existing Conditions of Workers Compensation Claims

In workers compensation claims, a pre-existing condition refers to a medical condition the employee had prior to the occurrence of the work comp injury. The pre-existing condition can be injury related, for example, a prior back injury, or the pre-existing condition can be non-work related, for example, degenerative disc disease. 
 
The workers' compensation laws of every state varies significantly in how each handles the aggravation of a pre-existing condition. The majority of states consider the aggravation of a pre-existing condition to be a part of the new work comp injury. Some states will accept the aggravation of a pre-existing condition that resulted from a prior injury but will not accept the aggravation of a pre-existing non-work related condition as a part of the work comp claim.
 
Aggravation of a pre-existing condition can be either a temporary condition or a permanent aggravation. It is important to the work comp adjuster to distinguish the difference, as the distinction can be critical to the outcome of the claim. The adjuster normally will allow for disability benefits for the period of time the employee is unable to work due to the aggravation of the pre-existing condition. The employee should not be compensated for the disability caused solely by the underlying condition.
 
A typical pre-existing condition claim is the aggravation of the lower back. The employee reports s/he injured his/her back. The medical provider determines the employee has strained back muscles and has degenerative disc disease. The employee is taken off work while the back strain resolves. The employee continues to complain about the injury beyond the time it should take to heal. The medical provider realizing the muscle strain should be resolved returns the employee to work with a 20 pound lifting restriction. The lifting restriction is to protect the employee from aggravating his/her degenerative disc disease, not to protect the employee from straining the back muscles again. As the restrictions arise out of the employee's pre-existing condition, they can be disputed.
 
However, the employee with the pre-existing condition is a greater risk for another injury. Requiring the employee to return to the same work as before without protecting the employee from his/her own pre-existing condition will often result in another aggravation of the pre-existing condition. Therefore, it is often better for the employer to honor the restrictions, even though the restrictions arise from the pre-existing condition, and not the work comp injury. If possible, you should consider re-assigning the employee to a different position where the potential for aggravation of the pre-existing condition is not as great.
 
Work comp claims involving the aggravation of a pre-existing condition need to be handled by experienced work comp adjusters who have in-depth knowledge of how these types of claims are handled within their state. The work comp adjuster should try some of these approaches to handling the claim involving the aggravation of the pre-existing condition:
 
1.     The adjuster and the employer should work together to arrange for a light duty return to work for the employee. Returning the employee to work on modified duty is always a good idea, but it becomes especially important in the claims involving the aggravation of a pre-existing condition. By returning the employee to light duty work, the employer reduces the likelihood of the medical provider placing the employee on permanent restrictions.
 
2.     The adjuster should investigate the claim thoroughly including interviewing the employee's supervisor and coworkers to ascertain if the employee was having problems with the pre-existing condition prior the on the job injury. This is especially true with the un-witnessed “accident.” There may be information available to document that the work comp accident is not the cause of the employee's medical problems but the pre-existing condition is the cause of the medical problems.

3.    
The adjuster should not hesitate to question the medical provider about to the pre-existing condition. If the adjuster ask the medical provider “what caused the degenerative disc disease?” the medical provider can only indicate it is a condition of aging, and was not caused by the on the job injury.

4.    
The work comp adjuster should reject work restrictions on the employee based upon the employee's fear, or the medical provider's fear, that a new injury could occur. The adjuster should work with the employer on arranging for a job revision that will reduce the employee's chances of re-aggravation of the pre-existing condition.

5.    
The adjuster should make sure the medical provider has a complete job description of the employee's position. (It will be much more accurate than the job description most employees will provide to the physician). The job description should include the employee's duties and the duration of each activity during a day. By providing the medical provider with this information, the physician can make a more accurate assessment of the employee's abilities to return to his former job, which will limit the extent of the job restrictions placed on the employee and his pre-existing condition.
 
As an employer, you need to protect your company from higher than normal workers' compensation cost brought on by the aggravation of pre-existing conditions. Pre-employment screening of job applicants is the most effective way of preventing work comp claims that arise out of the aggravation of a pre-existing condition. By not hiring people who will be more susceptible to injury, you can significantly reduce your exposure to injury claim involving the aggravation of a pre-existing condition.

However, employers must follow all EEOC/ADA guidelines to avoid discrimination charges.
 
The cost of background checks and physicals is minor compared to what a new employee with the pre-existing condition can do to your Experience Modification Factor.
 
As an employer you will never totally eliminate the injury claims involving the aggravation of a pre-existing condition. You can significantly reduce the number of injury claims involving pre-existing conditions by carefully screening the employees you do hire. Once the work comp claim occurs, you should work closely with your adjuster to minimize the impact of the pre-existing condition on the injury claim.
 
Author Rebecca Shafer,
Consultant / President, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, healthcare, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. Contact: 
RShafer@ReduceYourWorkersComp.com   or 860-553-6604.

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©2010 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com

Is One-Arm Dusting Modified Duty Job Too Easy or Too Difficult

How Would You Decide:  Florida Worker’s Refusal of “Sheltered Employment” Was Not Reasonable

Here’s What Happened:
Claimant,  a commercial housekeeper, suffered a compensable injury to her right (dominant) shoulder, underwent surgery, and was placed on no-work status for approximately one week. Subsequently, claimant’s authorized orthopedist returned claimant to work with significant restrictions relative and recommended three weeks of physical therapy.

The employer,  as part of its return-to-work program, offered claimant a light-duty job — dusting with only the left hand. Claimant advised the employer that she would not return to work until she received the recommended physical therapy, that she was still in pain, and that she could not perform the job because it was too difficult.  Thereafter the employer terminated claimant’s employment, citing claimant’s failure to show up for work or call.  Claimant underwent physical therapy and eventually found other employment.

The JCC found  the modified position was a legitimate offer of suitable employment made pursuant to the employer’s return-to-work program and was not “sheltered employment.” Based on these findings, the JCC denied all requested temporary partial disability benefits due to Claimant’s unjustified refusal of suitable employment. As grounds for reversal, claimant argued the one-arm duster job was “sheltered employment,” because it was light of effort and responsibility and laden with rest and comfort and thus, benefits should have been awarded.

Here’s What The Court Decided:
In Moore v. Servicemaster Commer. Servs.,  2009 Fla. App. LEXIS 15556 (Oct. 14, 2009), the First District Court of Appeal of Florida disagreed with Claimant’s argument. The court first indicated it was inconsistent for Claimant to contend, on the one hand, that the job was laden with rest and comfort and, on the other, to argue that it was too difficult to perform.

The appellate court  acknowledged that under appropriate circumstances, such as when an employer had created a job merely as a litigation tactic, such a job might not be considered “gainful employment” that would defeat a PTD claim.  Here the situation appeared to be different, however.  The court indicated that claimant’s concept of “sheltered employment” was antithetical to the intent of the legislature that the Workers’ Compensation Law should be interpreted to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.  Her sheltered employment concept was also at odds with the affirmative defense provided for in § 440.15(6), Fla. Stat. 

The court stated  that to the extent that a temporary offer of employment was perceived to be the result of “gamesmanship on the part of the employer,” § 440.15(6) allowed a JCC to excuse an injured worker from accepting such an offer.  There was no reason, however, to resort to the common-law concept of “sheltered employment” in such situations. The court concluded that because the JCC failed to make any findings with regard to Claimant’s entitlement to TPD benefits after Claimant’s refusal of employment ceased, and before she returned to work, the decision was reversed. (workersxzcompxzkit)

On remand,  the JCC should determine whether Claimant proved, based on the evidence presented, entitlement to TPD benefits in accordance with the standards set forth in section 440.15(4), Fla. Stat. (2006). 

See generally  Larson’s Workers’ Compensation Law, § 81.06.

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). 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

“FRAUD PREVENTION” PODCAST click here: http://www.workerscompkit.com/gallagher/mp3
By: Private investigator with 25 years experience.

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

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KANSAS Return to Work Job Search Not Required

Kansas High Court Strikes Down Requirement that Injured Workers Make Good-Faith Effort to Find Appropriate Work Following Injuries  How Would You Decide?Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers’ Comp Law Center reports.

 

Here’s What Happened
Bergstrom worked  as a production janitor for an employer, a manufacturer of plastic plumbing parts.  She began to experience pain in her back after picking up a heavy garbage can.  She experienced severe pain the following day and was told to see a nurse practitioner, who prescribed pain medication.  Bergstrom was assigned to a less strenuous job, sorting parts, but was unable to do the job because she could not sit and bend for an extended time. 

She then saw  an orthopedic specialist, who told her to stop working and apply for Social Security benefits.  She saw a number of other physicians, including another orthopedic surgeon and a psychologist.  Later, she attempted to return to work for the employer, but was assigned to a position where she experienced severe back and leg pain after three hours.  She left work and was terminated by the employer. 

After several hearings,  the administrative law judge awarded some permanent disability, but the Board reduced the award to a ten percent permanent partial disability (PPD) to her body as a whole, concluding that Bergstrom had not exercised good faith when she failed to perform alternate job duties the employer offered her after her injury.  Bergstrom contended the Board erred when it applied a good-faith effort requirement not contained in K.S.A. 44-510e. 

K.S.A. 44-510e  generally provides PPD should be expressed as a percentage to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker earned after the injury. 

The statute also  provides an employee shall not be entitled to receive PPD compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury. The Board indicated it had followed several Court of Appeals decisions that required a good faith effort be exerted when considering post-injury job searches. Here the Board found that Bergstrom had not put forth a good faith.
Here’s How the Court RuledHere’s How the Court Ruled
In Bergstrom v. Spears Mfg. Co.,  2009 Kan. LEXIS 838 (September 4, 2009), in a split decision, the Supreme Court of Kansas, on transfer from the state Court of Appeals, reversed and remanded in relevant part.  Initially, the majority noted that in Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995), the Kansas Court of Appeals had examined the legislative intent underlying K.S.A. 1988 Supp. 44-510e(a) and had concluded that the statute implicitly contained a requirement that injured workers exercise good faith in attempting to mitigate their wages lost to work impairments.  The majority observed that in Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997), the Court of Appeals expanded on its ruling in Foulk. The majority said that under Copeland, the fact finder was required to make a determination as to whether the injured worker had made a good faith effort to find appropriate employment.  If a finding was made that a good faith effort had not been made, the fact finder was directed to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the worker’s capacity to earn wages.

The majority indicated  that it could find nothing in the language of K.S.A. 44-510e(a) that required an injured worker to make a good-faith effort to seek out and accept alternate employment. The majority observed that the legislature had provided for a means to compare the worker’s pre-injury and post-injury earnings, coupled with a percentage of impairment determined by a medical professional.  It had further placed a limitation on PPD compensation when the employee “is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury” [K.S.A. 44-510e(a)]. The legislature had not required the employee to attempt to work. 

According to the majority,  Foulk and Copeland had been decided contrary to the principle that an appellate court must give effect only to express statutory language, rather than speculating what the law should or should not be.  The majority said it would not add something to a statute not readily found in it. (workersxzcompxzkit)

Chief Justice McFarland  dissented, noting that if the Court of Appeals in Foulk incorrectly read legislative intent into the statute, the legislature had certainly had the opportunity to correct that error at some point in the 15 legislative sessions since the Foulk decision.  The chief justice argued that this was even more compelling in the workers’ compensation context since-according to the chief justice-there was perhaps no other statutory scheme subject to such constant legislative scrutiny than the state’s Workers’ Compensation Act.  McFarland indicated that within the 2005-2006 legislative session, more than 80 bills related to workers’ compensation had been introduced.  He concluded that participants in the workers’ compensation system should have stability and predictability in the law, yet the majority failed to consider such reliance “in cavalierly overruling a 15-year-old statutory construction for no reason other than it would have applied the rules of statutory construction differently if faced with the issue in the first instance.”

See generally Larson’s Workers’ Compensation Law, § 81.01.

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). 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

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

©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

 

85 Percent of Injured Employees Return to Work Within 30 Days

The good news is that about 85 percent of injured workers return to their jobs within thirty days of their injury. The remaining 15 percent, however, are angry, afraid and often unmotivated to find work. And, they have been led to believe by doctors and lawyers that they may never work again. Securing employment for them through a traditional return-to-work program is a major challenge. Avoiding Going Back to Work – Every day thousands of injured workers avoid going back to work. They intentionally sabotage interviews by wearing inappropriate attire or acting hostile, aggressive and even threatening toward potential employers. They act out what some call the workers' comp "return-to-work drama." In this production, the primary cast includes the injured worker, doctor, adjuster and, finally, lawyers. They are supported by the employer, private investigator, rehabilitation supplier and reemployment specialist. As some members of the cast try to end the play by getting the employee back to work or settling the claim, others counter their effort. After all, if the play ends, the money flow stops for some of these characters. Emotional Cycle of a Disability During the recovery process, many injured workers experience negative emotional "training" from medical and legal professionals. Rather than exploring their patients' (or clients') potential for the future, doctors and lawyers often focus on what they will not be able to do until (or when) they recover. A negative outcome is unintentional, since doctors and lawyers generally want what is best for their client, but it often moves injured employees into a cycle of disability. Doctors are obligated to frankly discuss their patients' conditions, and to brief them on any possible disability they may face. Diagnosing a patient through rose-colored glasses is a sure way to a malpractice suit, and doctors know it. So for them, it pays to be bleak. Likewise, while many attorneys want their clients to get back to work, there is a financial impact associated with claims resolution. Legal professionals juggling hectic schedules can inadvertently extend the litigation process by months or even years, stifling momentum toward recovery. This emotional drama weighs heavily on workers, lulling them into a cycle of disability. Over the next few days, we'll be exploring What To Do when An Employee Avoids Going Back to Work. Consultant Gordan Butler, formerly private investigator and RTW consultant, has some great ideas so sign up for email versions or RSS feed to make sure you don't miss any of his ideas. Gordon R. Butler, SOAR Research, Inc. can be reached at 866.813.5888 or email: gbutler@sgbutlerconsult.com. http://www.gbutlerconsult.com/ WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php 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 �

Three Key Considerations When Employees Traveling Overseas Are Injured On The Job

In addition to the items mentioned in the previous two segments about injuries occurring overseas, consider the following:

 

Safety Investigation – A safety evaluation will likely need to be done after any injury. Note whether any remedial actions must be taken so no further injuries occur.
Medical Coordination– Work with a travel medicine company and a representative of the other country to set up a plan that provides excellent medical care if needed when employees are traveling to or stationed overseas. If you have a large project in a remote part of Brazil, for example, contingency plans for air evacuation and treatment in another country will be needed.
Site Physician – You may need to hire a doctor for on-site to ensure proper triage and medical care.

 

For more cost savings tips go to WC Cost Reduction Tips.
Show the REAL cost of workers comp with the Real Cost Calculator.

 

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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