2015 Atlanta RIMS Educational Conference

Presented ByRichard H. Sapp, III

K. Martine Cumbermack

Introduction

1. What can Employers do before an injury to minimize risk?

2. What Employers can do after an injury to minimize risk?

3. What are Common Defenses and Strategies that help minimize exposure/risk?

Effective use of pre-employment /post hire medical questionnaires

Why have one:• Rycroft defense• Accommodating restrictions to keep someone from getting hurt and to

avoid exposure

Key tips: • After offer made/before actual work starts• Can be part of a medical examination• Law requires that it be consistent and given to all employees• Same exam and/or same questionnaire • Information obtained must be maintained in a separate folder – kept

confidential• Treat just like a medical record• Keep it from supervisor when a worker is put on a job so nothing can ever be

said to influence an employment decision.

Content of questionnaire

• Solicits medical/health information to help with safe placement on the job

• Can be industry specific (hospitals asking about latex allergy)

• Can ask about prior workers’ compensation claims but risky – better to ask about specific injuries and medical problems

Panel of Physicians – How to monitor and use them correctly – Educate employees about the panel

- Proper posting and use allows for tight control of a claim.- Medical costs often exceed the cost of other expenses on a

claim – especially during the first several years of a claim.- The subjective doctor’s opinion controls other costs - denial

of disability, PPD, referral, long term drug use, light duty approval, relatedness of other medical conditions, a

conservative treatment plan. Post the panel properly

- Post in a prominent place- Six doctors (add an extra for safety)- Doctors should be reasonably close by- Use high quality doctors that know your business- Tell them that they are on the panel- Audit the panel yearly

Educate about the panel

• At orientation explain that workers’ compensation insurance exists and that a panel doctor must be used for workers’ compensation insurance to pay.

• Explain employee right to pick • Explain that employee can have and one free change within

the panel• Document it was explained• Discuss in periodic safety meetings • Really educate front line supervisors who can bind a company

with their actions, and who can put claim on the right track• Failure to educate, or post the panel properly, results in loss

of control of medical

Drug Free Workplace Policies • First began in Georgia in 1993 to curb drug use on the job and cut down on injuries

– benefits: Premium discount, fewer injuries, a better chance at denying an injury where drugs/alcohol are involved

Elements of Program1. Written policy statement2. Testing procedures3. Employee assistance program4. Employee education5. Supervisor training

Injury Reporting Policies – Effective Employee Training and Orientation

Train Employees• Workers’ compensation insurance exists• Report immediately• Seek medical by use of a doctor selected from the panel• Even minor injuries should be reported

Train Supervisors• Educate them about how workers’ compensation system works and

common defenses• Emphasize the need to report to Human Resources• Emphasize the need to document details • Use a short form as a standardized way to document the needed

details

After The Rain

• Why is immediate reporting and investigation important?– Notice Defense and 30 day rule– Drug testing/Intoxication defense– Preserving statements and evidence while fresh

Investigate and Document!

• Take EE’s statement in person/by phone– Prepare an incident report – have the Employee

record, in their own writing if possible, exactly what happened

• Take any witness statements– Speak with all available witnesses and get written

statements• A picture is worth a thousand words…

Claims Investigation• Listen Carefully to the details of the

claimant’s story; take notes• Verify the EE was where he was supposed

to be and doing what he was supposed to be doing

• Preserve physical and documentary evidence

• Consider helping with demonstrative evidence

• Allow medical treatment to appease the claimant and to help with the investigation

• Rumors and suspicions are good

The Posted Panel of PhysiciansThe Rules:• The employee gets to pick• One free change within the

panel is allowed• The chosen doctor has

referral power• Even after referral, the

chosen doctor remains the ATP

Proper use of Posted Panel

• Explain purpose and function—AGAIN• Explain right to select any doctor on the list• Can assist in making choice—be cautious• Can assist with contacting emergency care• Explain one free change• Have Employee circle & initial/date each

choice

Don’t Spare the R.O.D.

• Report

• Obtain Statement(s)

• Drug Testing

Drug TestingYour employee just reported an injury:

What should you do?

• Send Employee for Drug Test ASAP!– Intoxication Defense– Time Sensitive– Should be automatic procedure at first line

medical provider, but be sure to request from other providers – especially E.R.

– Test even if they decline medical treatment

Drug/Alcohol Testing

Immediately after reporting• 8 Hours drug• 3 hours alcohol

– Rebuttable Presumption that the drug or alcohol is the cause of the accident

– If cannot obtain Drug Screen, then can use other evidence of intoxication, but presumption does not apply

– Impact on claim– Self-Insured discount

Common Defenses—Intoxication• The intoxication defense is an “affirmation” defense where the employer has a

difficult burden of proof• Intoxication is considered employee misconduct, an intentional act• Early testing, by law, creates a legal presumption that intoxication is the cause

of the injury – 3 hours to test for alcohol– 8 hours to test for drugs– Claimant refusal

Practical tips– Have procedure in place to test– Educate supervisors– Establish a relationship with a medical clinic– Document testing details and get witness statements for supplemental

evidence

Common Defenses—Rycroft

If a claimant misrepresents his physical condition in a post-hire questionnaire or physical exam, then a related injury can be denied - It is considered employee misconduct - Elements of the defense:

1) A knowing and willful misrepresentation2) Employer reliance upon misrepresentation when the

claimant is hired3) A casual connection between the misrepresentation and

the injury Practical Tips

- Have good procedures to document at time of hire- Notify insurer/servicing agent of documentation when an injury

happens, and cooperate with the investigation

Common Defenses—Horseplay

Injuries that “arise out of employment” are compensable• If a claimant engages in horseplay or practical joking, then

courts will find it does not “arise out of employment”• The defense does not apply to unwilling participants and

innocent bystanders

Practical Tips: – Have policies against such conduct– Discipline conduct when it happens– Do not condone conduct– When an injury happens, get quick detailed accounts from

witnesses because the defense is very fact-sensitive

Common Defenses—Idiopathic• If a claimant is doing a mundane activity while at work, and an injury/medical

condition develops at work, but grows out of a worker’s personal medical condition, then it is idiopathic and not job related

• A mundane activity is some everyday non-work specific action, like walking, climbing stairs, or standing and turning• Nothing about the job should come into play to increase the risk of injury (“Mundane activity” requirement)

– Example: holding something heavy while standing and turning – Example: a nurse running up stairs and dodging others to get to a patient

who needs urgent care– Example: An office worker walks from her desk to a copier and trips on an

uneven piece of carpet• To win a case, there should be some evidence of a pre-existing underlying

condition– Example – degenerative disease in knee– Ideally for a good defense, the pre-existing problems should be

symptomatic

Common Defenses—Notice

A statutory requirement that a claimant tell management or a supervisor that an injury happened

– A vague notice is sufficient– Inquiry – prompting a notice is the standard– Notice of a medical problem without an express

cause– Notice of a medical problem with a given specific

off-the-job cause

Controlling the Medical

• Why is it important?– Costs, costs, and costs– Leverage– Better communication w/ physicians

• How do you accomplish?– Proper/Valid Panel Use– Agree on off-Panel doctors where you can

Two Basic Light Duty Scenarios

1. Before compensation is paid.

2. After compensation is paid.

“240(a)” Before Compensation is Paid

Key Factors:

1. Pre-determined list of light duty jobs.

2. Employer representative should attend first doctor’s appointment if possible

3. Suitability of job does not have to be approved by doctor prior to job offer..333

“240 (b)” After Compensation is Paid

• (b) Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:

• (1) If such employee attempts the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that such employee is not entitled to continuing benefits; or

• (2) If such employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that such employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.

Approval of the light duty job

• The law requires the proposed job is approved by the authorized treating physician or physicians.

Approval of the light duty job

Remember: • The job must have been approved by the

authorized treating physician after an examination within 60 days prior to the offer.

• The job description must be provided to the claimant and claimant’s attorney at the time of the submission to the doctor for approval.

Suspension of Benefits

Scenarios:

• Claimant fails to report to work = Suspend Income Benefits

• Claimant reports to work, but works less than either 8 hours or a full day/shift, whichever is greater =Suspend Income Benefits

• Claimant returns to work and works more than 15 days = Suspend Income Benefits

• Claimant returns to work for at least 8 hours or a full shift, but works less than 15 days = Immediately reinstate income benefits or waive the right to defend the case based on the suitability of the light duty job.

Surveillance

• When to consider surveillance?– Employee is MIA (can’t reach by phone, etc…)– Employee is missing/delaying appointments– Employee is drug seeking– Just prior to settlement

Surveillance

• Types of Surveillance– Work check– Activity check/Living well check– Hospital/Pharmacy check– Social Network sites– Stationary & Mobile surveillance– Workplace surveillance

Surveillance

• Benefits of effective surveillance?May allow you evidence to suspendImpeach the Employee’s credibilityMay affect medical treatmentGreat leverage for settlement!

Settlements/Mediation

• Why do we want to settle?– Bleeding costs– Length of time of claim– Employer pressures– Unforeseen Circumstances– Employee wants to resolve– Employer/Insurer wants to resolve

Settlements

• When is the “right” time to settle?– Early on (initial assessment)– Reached a plateau –MMI, full duty release, etc..– Before a Trial– After a Trial (win or lose)– Along the way (anytime)

Mediations

• Benefits of mediation over litigation• Benefits of litigation looming w/ mediation• State Board Mediations vs. Private Mediations

– Mediator choice– Timing/place– Costs

Conclusion—Top Ways to Minimize Worker’s Compensation Risk

1. Be NICE to a claimant when he says he is injured so he knows you care. The first impression sets up a good relationship down the road on that claim.

2. Be NICE to a claimant by having good quality doctors on the panel– The ones you would want to go to

3. Be NICE and have good open relationship with supervisors and upper management – we need open communication to get information as they are often our star witnesses in a denied case

Conclusion

4. Be open and honest, which fosters a smooth and effective relationship

– If there are disputes, discuss and compromise if needed– Be firm, knowledgeable, pleasant, fair, and open and

you will gain their respect

5. Be NICE to the Board players– Judges, secretaries and mediators– Judges stay on for decades and they are our judge and

jury– They remember who is nice, honest, and prepared, and

who is not

Thank You!

Richard H. Sapp, III404.888.6202

ricky.sapp@swiftcurrie.com

K. Martine Cumbermack404.888.6224

martine.cumbermack@swiftcurrie.com