Effective Management of Workers’ Compensation claims May 8, 2013 David G. Greene, Esquire 215.972.7910 dgreene@wglaw.com

Accident Investigation

A. Documentation And Witness Preservation 1. pre-injury documentation Attendance issues Disciplinary issues Written warnings are better Document personnel file Keep personnel file and workers’ compensation file separate

A. Documentation And Witness Preservation, cont'd Employee Handbook Post Injury (or alleged injury) documentation Signed statement from worker (surprising how story can change in litigation and later medicals) Make sure claimant treats with panel doctor How injury occurred Body parts injured Any witnesses Past medical history Family doctor Need not be that extensive but enough to get something in writing early on

Documentation And Witness Preservation, summary Signed statement from witnesses Get a statement from supervisor Interview co-workers with knowledge Necessary even if injury is compensable (manage the loss) Smallest claims can become major headaches Danger of “medical only”

A. Documentation And Witness Preservation, cont'd Third Party Case Preserve equipment

Witness Preservation Statement is crucial When employee leaves, get a present address Statute of limitations helps to protect

B. Assessment of Allegations: “Does this Make Sense?” Compare employees statement with statements from witnesses and supervisor’s statement. Communication, Communication, Communication. Case studies: The case of the stolen musical keyboard The case of the employee who came to work with a gun

INTERACTION WITH INSURANCE CARRIER OR SERVICING AGENT

What Information Does a Claims Representative Need? Employer’s First Report of Injury Employment background including length of employment, job title, duties, physical demands Wages, even in Medical Only claim Details of accident including: Date, time and location Witnesses If no witnesses, circumstantial evidence supporting or refuting allegations

What Information Does a Claims Representative Need?, cont'd Photographs of the scene – assist with WC Investigation and potential third-party Preserve evidence and potential defective equipment

What Information Does a Claims Representative Need?, cont'd Denied claims Provide all helpful information and allow carrier to investigate including rumors and potential motivation for claim Obtain statements from co-employees, supervisors with knowledge of the claim Have employer incident form completed and signed by claimant; include details of claim as well as prior claims, treatment, injuries to the affected areas Obtain family doctor’s contact information

Who Is In Charge Of The Case? What is key – no one is in charge – Teamwork! Employer must thoroughly investigate; has all grass roots knowledge Carrier must solicit cooperation, assistance, and information from employer, claimant and doctors Non-Compensable Claims: Intervention of counsel is unnecessary Compensable Claims may or may not require advice or intervention from counsel: Err on the side of caution

Who Is In Charge Of The Case?, cont'd When Counsel is Needed. Never accept a claim when there are potential legal (as opposed to factual) issues - - get legal opinion Examples: Violation of law Violation of positive work order Parking lot cases Mental/mental claims Conference calls, shared correspondence and information are key to best outcome

Who Is In Charge Of The Case?, cont'd Limitations on “control” Claim falls under prior carrier coverage Employer has large SIR or Self-Insured “Carrier Money”

Appropriate and Inappropriate Input Employer Inappropriate Input Unsubstantiated or unverifiable rumors support denial Personal feelings affect denial Employer Appropriate Input Financial issues/motivation of claimant Rumors of second job, outside activity which may have lead to injury

C. Appropriate and Inappropriate Input – cont’d Motivation for claim including retaliation for demotion or anticipation of demotion/termination Substantiated rumors

III. Interaction With Counsel

A. Ethical Considerations: Communications with Represented Employee Letter of representation not necessarily required Refrain from discussing any aspect of claim in litigation If lawyer says no direct contact, need to abide by that statement. Until then Inquire about condition, healing process Be compassionate Transitional duty The more contact the better

A. Ethical Considerations: Communications with Represented Employee, cont'd OK to send letter, so long as it’s copied to counsel RTW issues COBRA FMLA Other benefits

B. Communication With Defense Counsel: Whose Lawyer Is It? Defense lawyer is lawyer for employer AND insurance carrier AND third party administrator (if applicable) If interests are in conflict, the lawyer is the lawyer for the employer first. Example Lawyer has an obligation to disclose this conflict and may have to withdraw from case if employer and insurer cannot agree.

Post-Injury Re-Employment

The Good – Mitigation of Loss The sooner the employee returns, the lower the costs Obtain medical clearance from treating physician ASAP Bring injured worker back to alternative work asap Consider limiting TAW to 60 to 90 days (pros and cons) Ensure supervisors and co-employees do not mistreat light duty employee The longer the employee is out, the longer he or she stay out.

The Bad – Risks Inherent with Re-Employing the Injured Worker Physically demanding, high paying jobs Consider fitness for duty exam Consider employee history, motivation and work ethic Preferable to litigate re-employment issues than to allow RTW

V. Managing the Managers

A. Education and Training Summary of Importance of statements, prompt reporting, etc. Safety meetings Communication with employees

B. Management Culture Open-Door Policy “On the Floor”