Category: Work Comp
In the case of Gregory v. Cott, a California court had to decide whether a homecare worker attacked by an Alzheimer’s patient can sue the family for negligence. Two out of the three appellate judges deciding the case thought that homeworker had “assumed the risk” of that violence and that her only remedy would be workers’ compensation. The dissenting judge felt that this was going too far and essentially stated “Given the increased risk of harm to Ms. Cott’s in-home caregivers, fairness demands to caregivers bare responsibility for that risk, and not shift the burden of loss to the hapless worker who happened to be assigned to the home of one suffering from Alzheimer’s disease rather than, for instance, one recovering from foot surgery….[T]he claims at issue here should be subject to the usual laws of negligence, including the comparative negligence, if any, of plaintiff.”
My comment: What is interesting is that neither judge discussed the possibility that this claim was governed by workers’ compensation exclusivity. In addition, it’s very possible that the employee could have sued the employer for lack of proper training in how to deal with potentially violent Alzheimer’s patients.
CA Court Rules Work Comp Retaliation Claims Cannot Form the Basis of Wrongful Termination in Violation of Public Policy Claim
Keeping with the theme of work comp exclusivity a California Appellate court ruled in Dutra v. Mercy against an employee’s effort to broaden the scope of work comp retaliation. Known in California as a 132a claim, the court declined to expand liability to a full blown wrongful termination claim (which is in fact allowed in many other states) . You could not have picked a more wonderful employee to be brave enough to make such a claim after she was fired for gossiping when she should be working, for check fraud and falsifying her time card.
Note: City of Moorpark did hold that Labor Code section 132a does not provide an exclusive remedy against disability discrimination and does not preclude an employee from pursuing remedies under the Fair Employment and Housing Act (FEHA) and common law wrongful termination remedies. (City of Moorpark, supra, 18 Cal.4th at p. 1158.)
In this short video, Don Phin goes over the The Bermuda Triangle of Employment for Human Resources Departments around the country.
Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”
As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.
Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee. Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.
Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.
- Provide overhead structure for lifting devices;
- Place frequently used tools and supplies at or near waist height;
- Provide low task chairs, stand/lean stools, and anti-fatigue mats;
- Provide compact lifting devices to push and pull supplies and tools from storage;
- Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
- Provide aerial lifts, rolling safety ladders, and work platforms.
The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.
Below are resources to learn more about developing your company’s RTW or SAW program:
- U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
- Disability Management Employer Coalition (DMEC)
- Return to Work Matters
- Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)
- Louis E. Orslene, MPIA, MSW, Co-Director
- Return to Work: A Snapshot (Part 2 of a Continuing Series, Read Part 1)
As more than 80% of inquiries to JAN involve retention of a current employee, the importance of contributing technical assistance to stay at work and return to work programs is vital. Both practices ensure valued employees are retained, productivity is maintained, and recruiting and on-boarding costs are saved. This is the second article in a series about these important practices in the workplace. The following article results from a collaboration between JAN and Return to Work Matters (RTW Matters). RTW Matters is a practical online resource for employers and disability professionals. Look for the Join Now link on the left hand side of the RTW Matters homepage.
He Ain’t Heavy…He’s My Employee
In the spring of the year in 2008, on a cold and dreary day, a freezing rain fell to coat everything it touched. Dan had just parked the CDL class truck and was stepping down to move on to his next task. What Dan didn’t know was that the next task would be a trip to the emergency room. When exiting the truck, Dan fell down and landed on his knee, causing a tear that eventually lead to a surgical repair. Two months later, Dan was told he could go back to work, but would have some temporary restrictions. Although his employer didn’t have anything he could do within his physical capacity, they would try and “come up with something.” For the next seven months, Dan remained at home and collected compensation pay at two-thirds his salary.
Although he made use of the time by attending physical therapy and follow-up doctor appointments, Dan was getting bored and a little worried about whether he would ever return to his job. Dan missed the gang at work and would frequently stop by for a chat and any news on possible light duty assignments. Finally, an opportunity came up for Dan to return to work, and even though it was limited to four hours a day of snow plowing, he happily accepted. Eventually, Dan was released to full duty and returned to his heavy equipment mechanic position, but to everyone’s dismay, Dan’s knee started to give him problems within just a few weeks. When the MRI showed another tear, a second surgical repair was performed and once again, Dan was out of a job.
In desperation, Dan scheduled an appointment to talk with the company’s return to work coordinator, who immediately contacted the ergonomic specialist to schedule a meeting for the two of them to meet with Dan and his supervisor to form a return to work strategy. A job analysis was completed, which determined that the physical ability to kneel and squat were essential to performing the heavy equipment job. Unfortunately, these were the very same physical demands that Dan was restricted from doing on what was now a permanent basis. This could have been the end of the story except that the people involved were a bunch of very determined and creative folks.
An ergonomic evaluation of the work area was completed and another meeting was held to discuss a plan. The only thing keeping Dan from returning to his job was his inability to maneuver and work on the equipment. So, was there another way of maneuvering? Well, research would need to be done and budgets would need to be considered. Dan was told that they would let him know when they had some answers. During what Dan would say were some of the longest days of his life, he stayed home, earned less money and worried about his future.
Then came the day when Dan got the call, asking for him to come in to work for a meeting. The news was good. A hydraulic lift had been indentified that could be used to lift the work product to waist height. This allowed Dan to avoid the kneeling, squatting, and heavy lifting he was restricted from doing, while still allowing him to perform all the duties of his heavy equipment mechanic job. This job modification not only returned Dan to his full time job, it came with an additional benefit; the ability for other workers to use the lift, thereby preventing additional work injuries.
From the efforts of Dan and his supervisor, the ergonomic specialist and return to work coordinator, long term disability was prevented. This not only saved the employer money and a loss of production time by bringing on a new employee, it made them feel good that they had a part in doing the right thing by a valued employee. The other employees recognized the efforts of their employer, which instilled confidence that if they ever met with similar circumstances, they would be taken care of. For Dan, the benefits were huge. He could now go back to being a productive member of society and earn the money he was previously earning. For the community, the benefits were limitless: the return of a member to gainful employment and the prevention of unemployment side effects such as anxiety and depression, that affect the individual and family members. This case had many factors that led to its success, but most important was the great team collaboration, established partnerships, and good communication between the employee, supervisor, RTW coordinator, and all the other team players involved in the case.
The cost of the hydraulic lift? $2,667. The return of a valued employee? Priceless.
For more on lifting devices, the costs and benefits of job accommodation, and effective accommodation practices, contact JAN.
This case shows how a poorly handled work comp claim can turn into a litigation nightmare. Here the battle is over the production of original medical records. The point is the lawyers, courts, and now you can read this case, which has already cost thousands to litigate, simply because a claim was mis-managed. Note that the claimant also filed a claim with the EEOC in addition to her work comp claim.
I recently joined a very lively conversation in the Work Comp Analysis Group on LinkedIn http://www.linkedin.com/groups?home=&gid=1328307&trk=anet_ug_hm&goback=%2Egmp_1328307
A few salient points were made:
- Most claims are legit.
- While it’s easy for folks to point fingers depending on their agenda, all sides impact the analysis. As an example, Paul Jahn contributed this insight:
“An interesting discussion on the perceived stigma of filing a workers’ compensation claim but all in all one that is focusing on outlier claims.
The system (in the US) typically does a pretty fair job of handling and resolving the vast majority of claims. At PERMA (where I am very familiar with the data), 75% of our claims resolve without loss of time and 80 to 90% of the lost time claims resolve with a return to work. Typically we have 10 to 15 long term litigious claims per accident year out of a universe of 3500 or so.
These claims all have to be looked at on an individual basis (and they all tend to be very high cost). I have been doing so for over 20 years and can draw some general conclusions.
- Most claims that do not resolve in some sort of a return to work start out with a poor relationship between employer and employee.
- Distrust between providers of coverage and injured workers can make placement in alternative employment a futile effort. An assumption of good faith on both sides could help everyone involved in the system.
- A poor economy exacerbates systemic problem. Some employers place less value on injured workers when they can be easily replaced and in a tough job market placement in alternative employment is difficult.
As a system designed to temporarily tide injured workers over until they can return to their original employment, the system works pretty well. As a means of dealing with management issues and economic problems that complicate long term serious disability, the system is at best a band aid.”
I couldn’t agree more! Take a look at the Injury Prevention That Works Report.
The point is this: Just because an injured employee may not be able to return to work due to their injuries…they may be able to return to work by granting them an accommodation. Because Wal-Mart may not have engaged in an interactive dialogue the court let the case move forward. Wal-Mart was also being sued for wrongful termination. As stated by the court:
“Here, considering the facts in the light most favorable to Cox, Wal-Mart terminated her between seven and ten months after she invoked her OWCL rights. Cox has offered evidence that during those intervening months, Wal-Mart disciplined her unjustifiably on three occasions, and refused to accommodate her, even though before Cox invoked her rights, Wal-Mart found her performance acceptable and gave her accommodations. A reasonable jury could infer from this evidence that Cox’s termination was causally linked to her invocation of her OWCL rights.”
One of the HR That Works Member companies expressed the following frustration with their work comp claims:
….is a current member of HR That Works; we would like to know if they are allowed to have current employees sign a document that states in the event of an injury they will utilize the employer’s MPN of Providers through the Workers’ Compensation carrier.
How do we prevent an injured worker from treating outside of the MPN when they are represented by an attorney? Client has a new claim reported last month, employee was released to return to work on modified duties on 04/29/11; Employee did not agree w/the MPN Provider’s diagnosis. He obtained his own Chiropractor & presented a disability form to the employer today. We suspect he has hired an attorney. How do we prevent these claims from treating outside of the MPN? We are seeing a lot of these claims. The insurance carriers are not being very proactive at encouraging these claimants to go back into the MPN; the attorneys are increasing the number of liens which are being tied up in the Liens Unit.
So, we went to our network and Bill Litjen, one of the most knowledgeable experts on Work Comp procedures in California, provided us with a truly complete answer as follows:
This is one of the most misunderstood advantages an employer has in controlling medical treatment of injured workers. Most brokers don’t understand it nor know how to explain the consequences to the employer if they don’t properly enroll employees in the prescribed timeframes.
Almost all CA WC carriers offer an MPN (Medical Provider Network) as the way to maintain medical control and cost. This is a standard product and all policyholders are expected to participate. The State Division of Workers’ Compensation (DWC) regulates how an MPN is implemented.
Anytime the employer changes WC carriers, they need to re-enroll employees in that carriers MPN (very similar to open enrollment for Employee Group Health benefits). The carrier should provide enrollment forms:
1) Employee Implementation Notice of MPN
2) Acknowledgement of receipt of MPN Information
3) Initial Written Employee Notification RE: Medical Provider Network – (English version)
4) Initial Written Employee Notification RE: Medical Provider Network – (Spanish version)
To enroll employees:
1) Provide all employees with a copy of the Employee Implementation Notice. This notice will need to add their Name and MPN Effective date prior distribution to employees. It may be also be provided via email if the employee has regular electronic access to email at work to receive this notice prior to the implementation of the MPN. If the employee cannot receive this notice electronically at work within the required time frame, then the employer has to ensure this information is provided to the employee in writing prior to the implementation of the MPN.
2) Include copies of the Employee Implementation Notice of MPN in new hire information
3) Have every employee verify receipt of the Employee Implementation Notice of MPN. Keep these signed acknowledgements on file (more on this).
4) Complete and return the MPN Implementation Verification Form to the insurance carrier (This is for their tracking purposes only and does NOT replace the employers record of the distribution of the notices)
5) Post the Initial Written Employee Notification RE: Medical Provider Network, both in English and Spanish, in a conspicuous location frequented by employees during the work day hours and in close proximity to the workers compensation posting notice (DWC7 Notice to Employees-Injuries caused by Work). The Initial Written Employee Notification RE: medical Provider Network should also be provided to employees at time of injury.
During the enrollment process, the employee will also be given the opportunity to “pre-designate” their own personal physician to treat a work-related injury. This could be a red-flag! They can pre-designate their personal doctor of medicine (M.D.) or doctor of osteopathy (D.O.) only if: the employer offers group health coverage; the doctor has treated the employee in the past and medical records; prior to the injury the doctor agreed to treat them for work injuries or illnesses and; prior to the injury they provided the employer the following in writing: (1) Notice that they want their personal doctor to treat them you for a work-related injury or illness and (2) provided the personal doctor’s name and business address.
If the MPN enrollment process is not handled this way, Applicant Attorneys will try to gain control of medical treatment outside of the MPN which can significantly increase the cost of the claim. If the enrollment process is handled correctly, any treatment outside of the MPN is considered “unauthorized” and the employer/carrier is not responsible for payment.
Now that’s what I call an answer! Thanks again, Bill!
David Shields of Partee Insurance had this to add to the above:
“We thought it wise to advise on a couple of things in this article:
- Resigning all employees into a new MPN IF you change carriers is not always the ‘right thing to do’… especially if you have an on-going claim and treatment with the expiring carrier with a different MPN.
- Resigning a “designated physician” when one changes carriers is not necessary… once is enough and that’s normally at ‘new hire’ time OR when you decide to get all employees to complete the paperwork for their personnel file when the employer understands the ‘designated physician’ notification requirement.”
P.S. More info on the MPN and employer rights can be found at http://www.dir.ca.gov/dwc/Employer.htm.
This is a classic “trap” case. A guy gets injured and is claimed 100% disabled. He cannot go back to his regular job as a police officer…but…and it’s a $1.5 million but…he could be accommodated under the ADA to do a light duty position as an accommodation.
Here’s the paragraph that says it all:
“The more persuasive evidence suggested that Lindsay was more focused on the workers compensation administrator’s concern about re-employing Plaintiff than on any medical restrictions per se. Cambridge Associates—a third party workers compensation claims administrator recently hired by the City for its expertise in managing workers compensation cases—instigated the decision to send Plaintiff home because of its concern that the City could not place someone in the workplace who, for purposes of workers compensation, was “100% disabled.” There is a strong inference that Lindsay and others involved in the decision deferred to Cambridge’s presumed expertise, not realizing that having already placed Plaintiff into the “light duty” assignment, the City had an independent duty to comply with FEHA.”
In ruling it concluded:
“The court finds that the City is liable for disability discrimination based on adverse employment action. In May 2003, it maintained several permanent “light duty” assignments and filled the assignment with sworn officers whose disabilities prevented them from performing the otherwise essential functions of a sworn police officer. The City placed Plaintiff into one of these assignments. Although Plaintiff was able to perform the essential functions of this “light duty” assignment, Plaintiff’s supervisors decided to “send him home” after learning, from the City’s worker’s compensation administrator, that he was “100% disabled.” The City’s decision to send him home was an adverse employment action based on discriminatory criteria. At trial, the City failed to prove any legitimate nondiscriminatory basis for terminating his employment, and is therefore liable for discrimination.
“The court also finds that the City is liable for failure to engage in an interactive process or to otherwise accommodate Plaintiff’s disability. After years of workers compensation litigation, the City had extensive knowledge about Plaintiff’s past disabilities. The City’s decision to bring him back to work notwithstanding its pre-existing knowledge of his disabilities was sufficient to shift the burden of proof and require the City to demonstrate that it engaged in meaningful dialogue with Plaintiff and made reasonable accommodations. Instead of engaging in a dialogue, the City summarily instructed him to leave the workplace and is therefore liable.”
Employer Lesson: Remember, The ADA and often FMLA run concurrently with Work Comp return to work issues. The failure reasonably to accommodate a disability the question is whether the employee can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.
To read this instructional case go to http://www.courtinfo.ca.gov/opinions/documents/B224303.PDF