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March 10, 2009

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From BLR's Best Practices in Compenstation & Benefits

You're in the cafeteria taking a break from your HR or managerial duties. Sipping your beverage of choice, you exchange small talk with an employee from another department when you hear these words: "My shoulder is bothering me. I think it's from those boxes I lifted when my workstation was moved last week."

Do you: a) offer a shoulder massage; b) tell the employee it's probably nothing, while secretly thinking what a whiner she is; or c) consider the comment a workers' compensation inquiry?

The shoulder massage could get you into problems best left for another discussion. And while the employee may or may not be a whiner, Option C is your best bet, says James R. Libien, a California attorney and expert in workers' comp issues.

"An employer should keep in mind that when an employee talks to you about an injury, they're generally not just doing it to pass the time of day. Whenever somebody makes a comment like that to you, you have to ask yourself: 'Am I being put on notice that this is a potential workers' comp claim?'" Libien says.

This and other issues were part of a telephone panel discussion convened by BLR late last year. The distinguished panel included experts in workers' compensation discussing ways employers can protect themselves, as well as cut costs. Libien was joined on the panel by Cathy Divodi, president of Artemis Claims Consulting, and Dave K. Smith of Dave Smith & Company, Inc.

Comments may not be casual

So how should you respond to the casual comment made by your employee? According to Libien, simply ask if the employee wants a claim form. "Many times the employee will say: 'No, I don't think it's anything like that,'" he says. But at this point, as with any situation concerning workers' comp, documentation is important.

If the offhand remark does result in a workers' comp claim, Libien emphasizes communication. "You should continue to talk with the employee, just not about the case," he says. "One of the complaints we hear from legitimately injured workers is that once they went home injured, they never heard from the company again. They tend to feel abandoned, like nobody really cares. I think it's a good thing for a company to make sure it has ongoing communication with these employees at home. If nothing else, call the employees periodically and ask how they are doing, tell them what's going on at work, and say that you're looking forward to them coming back. You can do so much with attitude; it's just a thoughtful way of running a company."

Continue talking with injured workers

"You don't want to get into discussing the facts of the case," Libien continues. "But I always tell employers that just because the person had a workers' compensation claim doesn't mean you can't maintain the same employer/employee relationship you've had all along. There's nothing that says you can't talk to them about changes in the health plan, or changes in the retirement plan, or so-and-so retired todaythe normal things that happen in an employment relationship. Even with questionable claims cases, the more you keep people up to date and show legitimate concern, that can only be interpreted in a good way."

What about those "questionable" claims cases? Keep in mind that the insurance company or third-party administrator (TPA) only knows what's in the file. "What happens in a lot of these cases is that the employer doesn't communicate the information to the insurer or TPA," says Libien. "It's important that an employer communicate with them to make sure they know the facts of the case." But be careful, he warns. Sometimes a person with a reputation for exaggeration really was hurt on the job; sometimes not. Either way, if the carrier or TPA knows about your suspicions, they can conduct a proper and thorough investigation.

Libien also offers a caution about use of the word "fraud," a legal term with a very specific meaning. "In California over the last 10 years or so, there has been a big emphasis on fraud in workers' compensation cases. This was picked up by the industry to a large extent, and they set up all these fraud units in the insurance companies. It got to be where a certain percentage of people in the industry tended to refer to any kind of questionable claim as a fraud. That's very problematic. It's true that there are a lot of claims that are exaggerated; that's sort of the nature of the beast in a lot of injury cases. But just because somebody exaggerated his or her claim doesn't mean that it constitutes fraud. I think that employers are well advised not to use that word. Let the people who make legal determinations decide when to get into that."

Prepare

Preparation should be at the top of your workers' comp checklist. Even if you've never had a claim before, eventually you will. Before it happens, make sure everyone knows what to do. Create a customized procedures manual for each state in which you operate. Assign an employee to be the coordinator of the program and implement necessary training. Who should be part of the training? Everyone, says Libien, for different reasons. Management needs to be aware of workers' comp rules, certainly. "But sometimes it becomes questionable as to who is in management," he says. "It would clearly apply to a foreman, but does it apply to a lead person? Those lines sometimes get confused, and that's a good issue for education within the company. They can set up a rule, for example, saying they expect everybody to tell a manager if they hear about an injury."

Employees also need to know the rules. Some states require that employees are made aware of their rights and know that claims will be investigated. "In California, most employees are told that at the beginning of their employment," Libien explains. "They attend a training session, and they sign off saying they've attended the training. Sometimes in a deposition, an employee will say they didn't know they could file a claim. I've said, you went to the training and signed off saying you knew about your rights. It's pretty hard for [him or her] to dispute that."

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Filed Under: Workplace Issues

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