How To Ensure Your Adjuster Is Being All They Can Be

Workers comp adjusterIf you have ever felt an adjuster assigned to one of your workers’ compensation claims was not making a proper effort to investigate a questionable injury claim, you are not alone. Every large claims office has some really good adjusters, some acceptable adjusters and some unmotivated adjusters who are just going through the motions to make it to the next weekend.

 

If you contact an unmotivated adjuster about the status of their claims handling, the adjuster will tell you, that she is doing everything she can on the claim. The reason the adjuster will say that is because the adjuster knows that the employer most often does not know what can be done on the claim. If you want to really shake up the unmotivated adjuster and to get the adjuster moving forward full speed on the investigation of the claim, review the following list of investigation suggestions with the adjuster.

 

Check List of Investigation Tools:

 

  • Employer’s First Report of Injury form
  • Employee’s written report of claim form (in states where it is required)
  • Insurance Services Office filing (formerly known as the Central Index Bureau)
  • Contact with claim adjuster(s) on claimant’s prior work comp claims
  • Contact with prior employer(s) on claimant’s prior work comp claims
  • Medical records from claim files of prior work comp claims
  • Contact with work comp board/industrial commission for their records on prior claims (some states will not cooperate, other states do cooperate)
  • Employee’s detailed recorded statement
  • Recorded statement of any witnesses to the accident
  • Supervisor’s recorded statement
  • Police report on vehicle accidents
  • OSHA reports, whether federal OSHA or a state OSHA
  • Any other government agency records
  • Discussion of the claim with the employee’s attorney, if the employee is represented
  • Contact with any third party involved in the claim – driver of other vehicle in auto accidents, manufacturer of machinery that injured employee, manufacturer of defective product that caused employee’s injury, etc
  • Telephone contact with each medical provider to have the most recent medical report(s) faxed to the adjuster
  • Medical records for all medical appointments
  • Photographs of the accident scene
  • Diagram of the accident scene
  • Having the claimant call the adjuster after each doctor’s appointment to report on medical progress
  • Nurse case manager’s input on serious injury claims
  • Field case manager to meet with the employee and doctor, and to attend medical appointments with the employee
  • Review of claimant’s social media sites – Facebook, Twitter, LinkedIn, etc.
  • Employer’s personnel file on the employee, including job application, new employee forms, disciplinary records, etc.
  • Employer’s safety records for the accident location
  • Employer’s public notice of plant location closing, lay-offs, union issues, etc.
  • Referral of the claim to the Special Investigation Unit (the unmotivated adjuster may be quick to do this, as this passes the buck to someone else to do a complete investigation).
  • Outside Vendor Services (Investigation steps that can be taken, but not normally performed by the adjuster, but overseen by the adjuster).
  • Surveillance
  • Activity check
  • Neighborhood canvass
  • Background check
  • Credit check
  • Public records review / civil records searched
  • Criminal records check
  • Skip tracing
  • Clinic records sweep (checking for medical treatment at all clinics in the area of the employee’s address)
  • Hospital records sweep (checking for medical treatment at all hospitals in the area of the employee’s address)
  • Pharmacy records sweep (checking for prescriptions filled at all drug stores in the area of the employee’s address)
  • Video re-enactments of the accident
  • Examination under oath

 

Unfortunately, there is no central system where an adjuster can check to see if the employee is currently working another job. The use of a private investigator for surveillance can fill this void, but without knowing where an employee might be working, this is often a hit-and/or-miss approach.

 

It would be a very rare claim where it is necessary for the adjuster to take all of the investigation steps listed above. The key to an investigation is for the adjuster to take as many of the investigative steps as needed to verify the validity of the claim, or to disprove the claim.

 

We realize this checklist of the investigation steps your adjuster can take is incomplete. We welcome our readers to contact us with additional investigation techniques they would add to our investigation checklist.

 

 

 

Rebecca ShaferAuthor 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 co-author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:.

Contact: RShafer@ReduceYourWorkersComp.com.

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

 

©2019 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.

Can You Spot the Workers Comp Fraud Red Flags?

Detecting Workers’ Compensation FraudCombating fraud in workers’ compensation claims is a skill that can prevent much frustration and save significant worker’ comp dollars.  While we can tell our readers the importance of fighting fraudulent claims and publish lists of red flag indicators of fraud, it is often difficult for the risk manager or workers’ compensation coordinator to separate the legitimate work comp claims from the bogus claims.

 

To assist you in recognizing the bogus claims, we are providing a sample claim, using the actual facts of a submitted workers’ compensation claim to see if you can recognize or spot ten red flags of a bogus claim (the name of the employee has been altered to protect the guilty).

 

 

The Claim:

 

John Doe works in an auto repair shop as a mechanic.  Upon arriving early for work on Monday morning, Mr. Doe went into the auto parts storeroom to get a part for the car he was going to work on.  While leaving the storeroom and using both hands to carry the heavy auto part in a box, he tripped over another box on the floor.  In an effort to keep from falling, he grabbed a storage shelf, twisting and injuring his shoulder as he fell to the floor.  No one saw him fall in the parts storage room as the other employees were just arriving for work.

 

Mr. Doe immediately reported the claim to the shop manager and explained to the manager how he fell over the box on the floor he did not see because of the box he was carrying with both hands.  The shop manager offered to take Mr. Doe to the nearest industrial medicine clinic, but Mr. Doe instead chose to take himself to his “family doctor”.  The family doctor took Mr. Doe off work and did not indicate when he would be able to return to work.

 

When the shop manager called Mr. Doe the next morning to see how he was doing, Mr. Doe’s wife stated he was sleeping and could be disturbed.  The shop manager waited and called Mr. Doe again that afternoon.  Per the wife, Mr. Doe had stepped out.  The shop manager asked for Mr. Doe’s cell phone number, but instead of providing the phone number, the wife promised to have Mr. Doe call the manager.  Mr. Doe almost immediately called the manager back to relay what the family doctor had said. The shop manager recorded the cell phone number of Mr. Doe.  When the shop manager called Mr. Doe’s cell phone the following week to see what the family doctor had to say after the second medical appointment, the background noises did not sound like the noise you would hear in a person’s home.

 

A second mechanic in the shop after being overworked for three weeks due to the absence of Mr. Doe advised the shop manager that he had heard through a mutual friend that Mr. Doe had injured his shoulder while rock climbing the weekend before the reported injury.

 

The claim has numerous red flags that could be a tip-off for workers’ comp fraud.  They are:

 

  1. Monday morning accident.  Almost twice as many accidents occur on Monday morning than any other morning of the week.  This is due to people claiming non-work related weekend injuries as work-related in order to not lose their source of income.

 

  1. Arriving early for work.  Unless the employee habitually arrives early for work, arrival for work early on the day of the alleged accident is an indicator the employee wanted to “have the accident” before other employees see he is injured.

 

  1. Not seeing a hazard he had just seen moments earlier. If boxes on the floor were a common occurrence, the employee would be careful about watching where he was going.  If a box on the floor was unusual, the employee would have made a mental note to avoid it.

 

  1. The mechanism of injury does not make sense.  If the employee was using both hands to carry a heavy box, how did he have a hand free to grab the storage shelf?

 

  1. The accident was not witnessed.  Bogus injury claims almost always occur where no one else will see the accident happen.

 

  1. The selection of a particular doctor over a more qualified doctor who specializes in treating injured employees.  This is normally a sign the employee wants a doctor who will accommodate his desire to be off work.

 

  1. A doctor who does not address return to work This is normally because the injured employee tells the doctor that he does not feel he will be able to meet his job requirements.

 

  1. The employee being asleep when he would normally be awake.  Unless the doctor has prescribed some very strong pain killers, the employee should be available to talk to the employer.

 

  1. The employee not being at home.  Occasionally not home is understandable, repeatedly not home/not available is usually a sign the employee has something better to do than being at home, i.e., possibly another job, either short-term or long-term.  Background noises that don’t sound like a spouse or a television often are an indicator the employee is working elsewhere.

 

  1.  Tips from co-workers.  This is probably the strongest evidence of fraud and should be investigated thoroughly.

 

None of these red flags by themselves are proof of fraud, nor is a combination of two red flags.  However, the more red flags the employer sees on a claim, the higher the probability the claim is fraudulent.  If you see multiple reasons to question the validity of a claim, the insurance adjuster and the special investigative unit of the insurer should be notified as to why you believe the claim to be questionable.

 

 

 

Michael Stack - AmaxxAuthor 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: http://blog.reduceyourworkerscomp.com/

 

©2019 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 RED FLAGS of Workers Comp Fraud

workers compensation red flags of fraudA critical part of controlling workers’ compensation costs is to put into place solid investigation techniques.  No matter how severe or minor a workplace injury, each case needs to be reviewed to identify any fraudulent claims and take appropriate action.

 

When communicating with employees, make it clear that the company will:

 

 

  • Identify corrective measures

 

  • Watch for minor extensions of days out of work and outright fraudulent claims.

 

 

Review these Red Flags of Fraud and request an investigation if you suspect a claim is illegitimate or exaggerated.
 

 

Injured Worker Red Flags:

 

  • Injury reported late, to an attorney or to the state commission before reporting it to the employer.

 

  • Fails to attend weekly meetings.

 

 

  • Is never home when you phone, especially during regular workday hours.

 

  • Has only a postal box rather than a home address.

 

  • Misses doctor appointments.

 

  • Is known to perform seasonal activities, hobbies, or work.

 

  • Has moved out of town or out of state.

 

  • Disputes average weekly wage due to additional income.

 

  • Files for benefits in a state other than the main location.

 

  • Disputes information supplied by the employer on “First Report of Injury” notice.

 

  • Refuses to cooperate in claim investigation.

 

  • Has an unstable work history.

 

  • Has recently been terminated, demoted, or passed over for promotion.

 

  • Has a prior history of injury management or liability claims.

 

  • Makes excessive demands or is pressing for a quick settlement.

 

  • Carries little or no health insurance.

 

 

Medical Flags:

 

  • Medical reports are repetitive, indicating continuing, constant pain with conservative medical treatment

 

  • The word “disproportionate” is used in medical reports

 

  • The doctor mentions there is “facial grimacing”

 

  • Positive “Waddell Tests” (test for low back pain) are mentioned

 

 

Workplace Flags:

 

  • Employer experiencing labor difficulties (i.e., layoffs, strikes, walkouts).

 

  • Tips from fellow workers, friends, or relatives.

 

  • The insurance company wants to settle the claim for a considerable amount of money.

 

 

“Things” just don’t ADD UP! Trust your gut, and if something seems off, be sure to check it out.

 

 

Michael Stack - AmaxxAuthor 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 the founder & lead trainer of Amaxx Workers’ Comp Training Center.

 

Contact: mstack@reduceyourworkerscomp.com.

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

 

©2019 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.

Top 5 Misconceptions Surrounding Workers Compensation

Top 5 Workers compensation mythsEveryone has opinions on what workers comp is. Some are correct, but most are misconceptions. The commercials seen on TV about people collecting hundreds of thousands of dollars are not true for the average claim.  When looking at the bottom of the screen it indicates that the people on the commercial are actors, not even the real claimants.  Most of the marketing material surrounds auto and liability accidents, where pain and suffering are translated into a certain dollar amount.  This is not exactly true in workers comp.  There is no pain and suffering payment.  Insurance companies/TPAs are there to provide reasonable and necessary medical treatment and wage loss.  Some states even allow a permanent partial disability payment, or impairment rating, on top of wage loss, but that is it.

 

 

Below we discuss the top 5 misconceptions surrounding the mystery world of workers compensation.  Not all of these will apply exactly to every jurisdiction but are general.  Remember to discuss with the adjuster and counsel any exact questions surrounding certain details regarding.

 

 

  1. Workers Compensation is not Welfare

Compensation is not a free payment a worker is entitled.  Just because you are injured at work, it does not mean a guaranteed payment or coverage for medical/wage benefits.  There are a lot of criteria to meet in order for a claim to be compensable.  Even if the claim is compensable, it also does not mean anything can be done.  Claimants have to play by the rules and do as they are told by the adjuster.  The adjuster must make the effort and take the time to explain to each claimant what the rights are, and what they can and cannot do. The biggest issue is miscommunication between the carrier/TPA and the claimant, so having an open dialogue will end any misconceptions that a claimant may have in regards to what their rights are, and what is covered; if indeed the claim is determined to be compensable.

 

 

  1. Nobody gets rich from Workers Compensation

Depending on the jurisdiction, employees give up the right to sue in civil court in exchange for what are essentially no-fault benefits.  Workers compensation pays lost wages, medical care, and vocational rehabilitation.  Pain and suffering as an additional payment is not available or applicable to a compensation claim.  The amount of money a person receives is a percentage of average gross pay.  There are typically no increases for inflation, and each state has a maximum limit that a person can get per week as workers comp payments.

 

Michigan, for example, has a maximum rate of $921 per week (as of 2019).   So even grossing $2000 per week as an average weekly wage, that amounts to $921 per week in Michigan.  High-wage employees that fall into these criteria are usually not very happy when they find this out, but the rules are the rules.  These statutes are set up within the workers’ compensation system, and they have to be followed by all parties.  Even if a claim is settled for a certain amount of dollars, it is typically not a retirement jackpot.  It may end the exposure for the carrier/TPA, but these claims that settle for very high amounts of money are the result of a very serious, extremely disabling injury.  And even those are few and far between.

 

 

  1. Workers compensation benefits will be stopped if the worker declines reasonable employment.

If the employer offers up a light duty job, within the injured employee’s medical restrictions, a claimant cannot refuse it and still get paid wage loss benefits.  This opens a Pandora ’s Box, because an issue will come up about whether this light duty job is something an injured worker is trained to do or is the job offer seen as an insult to their professional skills, etc.  If there is a welder sitting in a chair staring at a clock for a job, then maybe a case could be made that this work is not a benefit to the company.  For light-duty jobs, they have to be deemed something that the employer gets a “gain” from performing, and almost all jobs within an employment facility can fall within these parameters.  Certainly, if you provide a degrading job that is of no benefit, then you may get into legal trouble.  But in all reality, I do not think any employer would take a risk in stopping a compensable case by trying to make a person sit outside and stare into space.

 

 

The bottom line is any light duty job, that provides a service to the employer, must be performed if it is offered to the injured worker.  If the worker declines, then wage benefits will cease.

 

 

  1. Workers comp fraud is extremely low

Actual workers comp fraud is less than 10% of all claims.  And that number may even be high; I would go as low as 5% or less.  For a case to be deemed as fraudulent, it must meet certain criteria within whatever state statutes are in the jurisdiction.  That is hard to meet, and most cases will not even come close to being worth the pursuit of fraud in a legal court case.  If a certain worker is claiming to be out of work, and you get surveillance of them outside roofing their house, this may not make the case actual “fraud,” it falls more within the injured worker not following their medical restrictions and going outside of their treatment plan as deemed appropriate by their treating doctor.  This will provide the adjuster with the ammo to dispute ongoing benefits, but not exactly to pursue the case as overall fraud.

 

 

Workers comp fraud, as a whole, is not a major problem within the worker comp system.  Sure there are a lot of people that do not follow their medical restrictions, or they may miss doctor appointments, or ignore physical therapy demands, but this provides only a dispute for ongoing medical benefits, not fraud.  There is a difference between the two.  If you think you have an actual fraud case, you need to discuss it right away with the carrier/TPA and counsel before taking any such action to pursue official fraud in a legal venue.

 

 

  1. The vast majority of workers comp claims are paid and do not go to court

Generally, most comp cases are accepted, the injured worker gets treatment, and eventually goes back to work.  The idea that someone stays home and avoids work when they are able to actually work is not the norm.  Sure, there are those people out there who try to do what they can to avoid going back to work, but after an independent medical exam (IME) is performed, or after some surveillance discovers them being active out and about running errands, they are quickly flushed out and denied ongoing benefits.

 

Typically after a denial, and wage loss payments stop, these workers get on the wagon and get their treatment, so they can return to work and have their comp case end.   Some will run to plaintiff counsel and try to get what they feel they are entitled to, and they will file for mediations and hearings, but the litigation usually is settled before a case is tried in front of a judge.  Doctors can disagree on the causal relation of an injury, and this can speed up the case to go into litigation, but these cases are typically settled within 2-6 months.  A low percentage of claims will stay in the litigation system, and go on for months or years, but these cases are usually quite complex and can involve several defendants and several employers, and that contributes to the complexity and the duration of the litigation.  For the most part, on the normal workers’ comp claim that gets disputed and goes into litigation, these cases resolve themselves in the early stages of litigation and the files eventually close. But even those cases are not the common ones.  The common claims are legit injuries, where benefits are paid and the worker returns back to work at full duty within whatever timeframe is needed depending upon the severity of the injury.

 

 

Summary

 

Everyone may have heard of someone that tried to get away with milking the comp system.  Most of these people are caught through a good investigation, and their cases get resolved.  The stereotype of work comp being a total pain can be true in some cases, but for the most part, work comp claims are legit, paid, and the worker returns back to work.  There are always some exceptions, but if all parties communicate, know what their rights are, and know what they can and cannot do, their claims are resolved as quickly as possible and everyone can move on with their respective lives.

 

 

 

Rebecca ShaferAuthor 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 co-author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:.

Contact: RShafer@ReduceYourWorkersComp.com.

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

 

©2019 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.

 

 

Case Study: Helping Customers Manage Their Workers Compensation Programs

This article originally appeared as a Crawford blog post: https://www.crawco.com/blog/helping-customers-manage-their-workers-compensation-programs

 

Managing a workers compensation program from an employer’s perspective entails implementing proper health and safety protocols to create a safe work environment, and to properly handle claims should an employee sustain an injury while on the job. As employers pay into workers compensations plans supported by provincial governments they do have considerable financial responsibility.

 

 

Customer Wanted to Ensure Employee Safety

 

One of our large customers in the manufacturing sector genuinely wanted to ensure the safety of its employees and had taken the necessary steps to create a safe and healthy workplace. Tied to that was their desire to properly manage their workers’ compensation program to ensure proper allocation of finance, and proper employee support to help those injured return to work and legislative compliance. Although they were doing a good job, they thought that they could do better.

 

It was at this point that I was brought on to evaluate their program and identify opportunities for improvement. With the support of my team and the customer, we created internal processes and procedures around how to manage incidents that occur. We were able to provide accurate predictions around loss payment costs tied to workers compensation cases. These efforts resulted in everyone in the organization knowing and following these procedures. The customer experienced increased efficiency around the claims process, a decrease in organizational risk, and they saved money on insurance premiums.

 

 

Properly Run Workers’ Comp Program is Win-Win 

 

As a workers compensation consultant, I take great pride in doing my job well, as I know from experience that a properly run and managed workers compensation program can enhance lives and benefit employees just as much as the employer. It truly is a win-win situation.

 

 

Cathy Royet is a workers compensation consultant at Crawford in Canada. This story has some resemblance of real events with fictitious facts and details including the names, places, events, locales, and story specifics. Names, personal details and specifics have been removed for confidentiality. Story details have been enhanced for effect.

 

 

 

 

EEOC Speaks Out on Workers Compensation ADA Obligations

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

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

 

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

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

 

Download A Printable Copy of This Memo

Fine For Employee Deaths Amounts To Slap On The Wrist

 

As the Alberta (Canada) Federation of Labor (AFL) sees it, the recent fine given to oil company Sinopec amounts to nothing more than a slap on the wrist.
 
According to the AFL, the $1.5 million fine will have little or no impact on halting the company from continuing to have in place reported practices that endanger their employees.
 
During a recent court hearing, the Canadian subsidiary of Chinese oil corporation Sinopec was fined $1.5 million for an incident that led to the deaths of a pair of their employees their lives.
 
As AFL President Gil McGowan put it, “One and a half million dollars doesn’t even amount to a rounding error in the annual budget of a monstrous global corporation like Sinopec. This fine does nothing to dissuade them from playing fast and loose with the safety of their workforce.”
 
 
Imported Third World Health and Safety Standards
 
The story unfolded when Sinopec and a pair of other companies were charged after a 2007 container collapse resulted in the deaths of two temporary foreign workers at an oil sands project near Fort McKay, Alberta. In all, 53 charges were handed down against the companies, of which Sinopec pled guilty to three charges of failing to oversee the health and safety of its employees.
 
McGowan noted that “Sinopec didn’t just import workers from the third world, they also imported third-world health and safety standards. Alberta missed its chance to send a message that Chinese companies working in the oil sands need to play by Canadian rules.”
 
While McGowan added that it might be the largest safety fine in Alberta history, it further demonstrates that Alberta has a long history in failing to aggressively enforce its own workplace safety rules.
 
The two victims, Ge Genbao, 28, and Lui Hongliang, 33, were just two of the more than 130 Cantonese-speaking workers who were transported from China for the Sinopec oil sands project.
 
 
Complete Abdication of Safety Responsibility
 
“We shouldn’t forget the circumstances that led to the deaths of Genbao and Hongliang,” McGowan went on to say. “The company did not get the construction plans certified by an engineer. The wires weren’t strong enough to hold up against the wind. It was a complete abdication of responsibility on the part of the employer.”
 
China Petrochemical Corporation (Sinopec Group) is a super-large petroleum and petrochemical enterprise group established in July 1998 on the basis of the former China Petrochemical Corp.
 
 
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.

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.

Death of Washington Scuba Diver Leads to Safety Citations

 

The death of diver in Washington State last summer while on the job has led to repercussions for one department.
 
State officials with The Department of Labor & Industries (L&I) recently cited the Department of Natural Resources (DNR) for 15 worker-safety violations as part of their investigation into a drowning fatality involving a DNR diver last summer. The citation represents a potential penalty of $172,900.
 
 
Deceased Diver Part of 4 Person Dive Team
 
The deceased diver, David Scheinost, 24, was part of a four-person dive team from the DNR Aquatic Resources Division that was collecting geoduck samples to test for paralytic shellfish poisoning from the Manzanita and Restoration Point geoduck harvest tracts off Bainbridge Island on July 24.
 
As the day unfolded, a pair of SCUBA (self-contained underwater breathing apparatus) divers had deployed on their third dive of the day when Scheinost came to the surface in distress, calling out that he couldn’t breathe. The others were unable to reach him before he went beneath the surface and was gone. His body was found three days later.
 
 
L&I Investigation Points Out Problems
 
The L&I investigation involving the dive-safety policies and practices at DNR discovered:
 
             370 occurrences over a six-month period in which divers were deployed without carrying a reserve breathing-gas supply.
             DNR did not ensure a designated person was in charge at the dive location to supervise all aspects of the diving operation affecting the health and safety of the divers.
 
L&I Says ‘Willful’ Violations Took Place
 
As L&I concluded, these were “willful” violations, which means they were committed with intentional disregard or plain indifference to worker safety and health regulations.
 
“Commercial diving involves risks that unfortunately lead too often to tragedies like this incident,” stated Anne Soiza, assistant director of L&I’s Division of Occupational Safety and Health. “These significant risk factors require advance planning, properly maintained equipment and strict adherence to procedures to ensure the protection of workers’ lives on each and every dive.”
 
Along with the pair of willful violations, L&I cited DNR for eight “serious” and five “general” violations for not complying with standard safe-diving practices and procedures, including failure to:
 
             Have effective accident prevention and training programs.
             Ensure that divers maintained continual visual contact with each other.
             Inspect and maintain equipment.
             Have a stand-by diver available while divers are in the water.
 
L&I is responsible for workplace safety and health and investigating workplace deaths for all private, state and local government worksites.
 
 
Provided With 15 Working Days to Appeal Citation.
 
As with any citation, penalty money paid is put in the workers compensation supplemental pension fund, assisting workers and loved ones of those who have died while working.
 
 
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.

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.

Medical and Risk Trends for 2013

 

Each new year brings talk and speculation about what will be the “next big thing” during that year — a new medical procedure; a new change in laws; or increases in disability and reserving. Some common themes popping up on blogs and in discussion threads are about medical procedures and distracted driving hazard effecting risk management.
 
1.   Aggressive Total/Partial Joint Replacement Surgeries
 
Hip and knee joint replacements are among the most commonly performed surgical procedures in the United States, according the Center for Disease Control and Prevention. Between 1996 and 2006, total hip replacements increased by one third and total knee replacements by 70%.
 
Part of this new trend means doctors are finally realizing that months and months of physical therapy and other treatments are not resulting in outcomes patients’ desire. Injured people want to regain as nearly as possible most of their mobility and activity levels they enjoyed prior to an injury. This is particularly true of injuries taking years to develop before the joint finally gives out.
 
In addition, technology has changed, implants are better, more functional, and last longer and, depending on the comorbidities of the patient, recovery times have lessened. Therefore, physicians are going directly to joint replacement surgery, rather than waste a year on therapy.
 
Employers need to be aware of the actual causal relationship of joint failure to the issue of a workers compensation injury, keeping in mind most joint replacements are due to degenerative changes, not necessarily an occupational injury. The decision of whether or not an employer is liable for a workers comp claim can vary by state statute, meaning be very aware of all state statutes in every state where your company operates.
 
Rarely will a carrier opt to pick up a case with a joint replacement recommendation, since the costs are high, and the outcomes for total success can be limited. Be prepared to argue any case where a physician leans toward joint replacement following a workplace injury. Look for possible pre-existing conditions and be sure to have an independent medical examination (IME) done by a qualified and reputable physician.
 
 
2.   Increasingly Sophisticated Bionic Implants/Prosthetics
 
Great outcomes are rare for severe occupational injuries that include the loss of a limb since these cases are catastrophic in nature and carry a massive dollar reserve. The days of peg legs and hooks for hands are gone. Current prosthetics are capable of grasping objects with a mind/body connection doing the work, rather than plain mechanics.
 
Prosthetic limb advancements have grown exponentially over the years, but are very expensive. Prosthetic hands and arms are now like mini computers, with sophisticated wiring and performance. This leads to increased hazards and damage, wear and tear, and replacement/maintenance costs.
 
Some state statues only require replacement of a lost limb with a “suitable” prosthetic. But suitable to whom? Is it suitable to the claims adjuster, or suitable to the person affected by this life-changing injury? Unfortunately in many insurance claims, the best is not always something the carrier is prepared to pay for. The carrier’s opinion is to replace with a suitable device, a Ford Focus, not a Cadillac Escalade or Ferrari. So a lost limb can be replaced by the Ford Focus of limbs, not the Cadillac of prosthetic devices, or the latest/greatest thing out there.
 
Prosthetic eyes have also come a long way from the days when eye implants were riddled with infection potential and replacement eyes had little reality to what a natural eye looked like. Today’s eye prosthetics are incredibly life-like, although they do not replace vision. However, a good-looking prosthetic eye is a confidence builder and beneficial to a good appearance.
 
Be prepared to litigate over the issue of “type of replacement” and do not be surprised when it arrives after coverage for the Cadillac version of a prosthetic is disputed. Avoid legal problems by doing due diligence and get multiple opinions and recommendations for treatment as well as estimates on maintenance costs/repairs.
 
 
  1. Changing Demographics of the Workforce
 
Today businesses are doing more with less, leading to employees who are prone to more severe injuries with longer recovery times. Both the increase in obesity and aging adds to this statistic. It is not uncommon for workers compensation claims to increase when layoffs are rumored or forthcoming. Fear of losing a job may cause an employee to file a workers compensation claim over a minor injury and this spells disaster for the employer.
 
Employers must be aware of the risk. Every employer wants to run an efficient business, but employees can be over loaded by being asked to do more with less. What is the general consensus on the work floor? Are workers hearing about pending layoffs and not telling their managers about a potential injury for fear of repercussion or termination? Are workers asked to do more than one job when coworkers are laid off and not replaced? Failure to address these important questions can be dangerous and costly in the end and counter-productive to efficient management.
 
 
  1. Better Recovery that Limits Risk of Permanent Partial Impairment
 
Injuries reported and treated before they morph into major injuries result in reduced recovery time. Reduced recovery time lessens the risk of a permanent injury. In states where an impairment rating is used to pay the claimant additional monies, just opening the lines of communication can save a business/carrier a large sum of money over time.
 
Let us look at carpal tunnel as an example of early treatment as opposed to late treatment.
When a worker is treated at the onset of symptoms, treatment consists of splinting and medication. The problem can resolve on its own with little loss of work time and minimal medical cost. On the other hand, the longer a worker waits to get treatment, the worse the nerves become damaged, sometimes to the point where surgery will be of little benefit to resolve pain and restore function.
 
Some states have an almost automatic impairment rating once surgery is performed and costs can be very large not only in additional wage loss, but also in increased medical coverage. Some states cover reasonable, related, and necessary medical costs over a 10-year period, meaning it is hard to wipe an existing claim of this nature off the financial books. Promote early involvement/medical intervention when an injury happens in the workplace.
 
 
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
 
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.  

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.

Mining Inspectors Zero In On Workplace Safety

 

Mining inspectors in Ontario are focusing in on diesel emissions and other hazards that could affect air quality during a blitz in underground mines.
 
As part of the province’s Safe at Work Ontario strategy, which was unveiled four and a half years ago, Ministry of Labor inspectors are making sure that employers are complying with recent changes to emission requirements for diesel-powered equipment under the Regulations for Mines and Mining Plants.
 
Officials believe the changes improve protection for workers from the potentially harmful effects of diesel emissions by:
 
     Setting a lower allowed limit of carbon exposure for workers and
     Requiring equipment be tested under consistent conditions
 
The changes went into effect on Jan. 1, 2012.
 
 
Illness and Death Result from Poor Air Quality
 
Poor air quality in underground mines can lead to occupational illness and death of workers. In particular, workers are at risk in the event they are exposed to carbon monoxide in diesel exhaust.
 
Underground mines can have poor air quality when:
 
     There are too many "particulate particles" (a mixture of various chemical solids and gasses including carbon and nitrous oxide) and other airborne substances such as dust in the air and/or when
     Fumes emitted by diesel-powered equipment are over the prescribed limits
 
To protect workers, the new amendments require employers to:
 
     Perform routine testing to determine the carbon monoxide content of exhaust from diesel-powered equipment under consistent conditions
     Develop and implement testing measures and procedures for diesel-powered equipment, in consultation with the mine's Joint Health and Safety Committee (JHSC) or health and safety representative
     Provide test results, as required, to the JHSC or health and safety representative
     Investigate overexposure by workers to diesel emissions and take remedial action, if possible, to prevent future incidents
 
The mining regulations are part of Ontario's Occupational Health and Safety Act (OHSA).
 
 
Inspectors Focus in on Diesel Equipment
 
Inspectors will target underground mines that use diesel equipment, including:
 
     Mines with large fleets of diesel equipment operating in the underground environment
     Recently reopened or new mines operating diesel equipment
     Mines where previous ventilation concerns were observed, and
     Mines with a poor health and safety compliance history
 
Inspectors will check on two types of equipment:
 
     Diesel equipment used for underground transportation of workers and materials and blasting of rock and
     Ventilation systems used to deliver fresh air to underground mines
 
Lastly, mining inspectors will zero in on the top priorities:
 
Committee Consultation: Inspectors will check that employers have developed and implemented testing measures and procedures for each piece of diesel equipment, in consultation with the JHSC or health and safety representative.
 
Diesel Equipment: Inspectors will check that equipment used for underground transportation of workers and materials is being regularly tested, as required.
 
Workplace Air Sampling: Inspectors will check that employers are regularly testing the air in underground mines to ensure exposure to toxic airborne substances do not exceed the prescribed limits.
 
 
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.

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.

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