1. Effective Management of Workers’ Compensation claims
May 8, 2013
David G. Greene, Esquire

2. Accident Investigation

3. 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

4. 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

5. 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”

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

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

8. 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

9. INTERACTION WITH INSURANCE CARRIER OR SERVICING AGENT

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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”

16. 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

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

18. III. Interaction With Counsel

19. 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

20. 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

21. 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.

22. Post-Injury Re-Employment

23. 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.

24. 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

25. V. Managing the Managers

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

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