16 Mar An Ounce of Prevention: What Employers Can Do to Keep Workers’ Compensation Costs Down

As a firm specializing in Workers’ Compensation defense, General Liability defense, and Employment and Labor Law defense, we have a bird’s eye view of the successful (and sometimes unsuccessful) practices of our clients. In this article, we offer preventative measures that can be utilized to minimize or mitigate workplace accidents and their associated monetary exposures.

As a general rule, any policy or procedure should be uniformly applied to all Employees, regardless of race, religion, gender, age, or any other protected factor. Failure to apply these provisions uniformly could result in violation of State, Federal, or Local law. As such, if you choose to adopt any of the following suggestions, it is imperative that they be applied without variation.

Perhaps the least expensive and most beneficial practice that a company can utilize is to conduct routine safety workshops. A safety workshop is an inexpensive method aimed at avoiding accidents. We recommend that you conduct safety workshops frequently, perhaps monthly, at which time you can review techniques for safe lifting, ergonomic workplace solutions, and applicable safety rules. To assist your supervisors and HR personnel, Setnor Byer Insurance & Risk, along with Kelley Kronenberg, can facilitate workers’ compensation workshops at your workplace that will specifically address your unique needs and will guide you toward implementing more aggressive and cost-effective practices that can prevent workplace accidents.

Often, injured workers are more apt to stay home if they perceive that the rewards for being out of work are potentially greater than for returning to work. In light of this trend, a useful suggestion for an employer is to establish a safety program. As a company, you may consider offering an incentive to Employees who are accident-free for a specified time period. This practice may also be used for Employees who have a perfect attendance record, thereby reducing frivolous time off for “sick days.” Feel free to contact Setnor Byer Insurance & Risk for additional support. Please note: To avoid disparate treatment or the appearance of impropriety, absences for workers’ compensation purposes, FMLA leave time, or leave provided to an Employee for accommodation of an ADA disability should not count against one’s attendance record in this incentive program.

Obtaining information (post-hiring) about an Employee’s medical history can also be quite useful. The names and contact information for a worker’s physicians can be obtained on your standard employment documents “to be used in the event of a medical emergency.” This information often provides valuable assistance should a workers’ compensation claim later be filed, as it is more likely that a pre-existing condition would have been revealed to a doctor prior to a work accident than after the work accident.

In this regard, we also encourage gathering information from Employees regarding pre-existing medical conditions. This information will be invaluable and may aid in the defense of a workers’ compensation claim, if provided on a timely basis, to the treating physician after an accident. Please be advised that the use of medical questionnaires is strictly governed by the Americans with Disability Act (ADA), and the failure to comply with the requirements of this law could create additional legal exposure for you as an employer.

Under the ADA, the types of questions asked of the Employee depends on the stage of the hiring process.

• Stage One: Before a Conditional Job Offer is Made. The ADA permits you to show the prospective Employee a job description that describes the physical demands of the job, or to demonstrate the job and inquire whether the prospective Employee is physically able to perform the job function with or without an accommodation.
• Stage Two: After the Job Offer but Before Employment Begins. The ADA permits the Employer to ask a prospective Employee to respond to a detailed medical questionnaire and to submit to a medical examination, if practical, as long as these are required of all Employees entering the job force within a particular job category.
• Stage Three: After the Employee Has Begun Working. Among other things, the ADA allows employers to require a fitness-for-duty examination in situations in which the examination is job-related and consistent with business necessity.

The ADA is a complex set of laws-please seek legal advice prior to instituting procedures.

Obtaining information regarding the Employee’s physicians and prior medical care may prove beneficial should the Employee later have an accident. Thus, it is also imperative to know whether the Employee has sustained prior accidents and/or whether a prior workers’ compensation claim or lawsuit has been filed. To answer these questions, we recommend that an index search, background check, or a simple online search be conducted at the post-offer stage.

An index search typically will list any known accidents that the Claimant has had, including workers’ compensation claims and automobile/personal injury claims. The reports typically list parties with additional information regarding the claim, i.e. an Insurance Carrier, an Employer, or an insured individual. Often, we are able to subpoena records based upon the index search that greatly assist in limiting exposure. In fact, for some clients, we seek this information once an injured worker has an accident but before litigation has commenced. At an Employer’s request, we can open a “ghost file” and guide our clients from the sidelines in an effort to avoid unnecessary and costly litigation.

Consider the value of many of the public record search options that exist. A person’s name can be looked up on local civil and criminal case dockets, and much information can be garnered by looking at personal web pages such as flickr, myspace, and similar social networking sites. Small and seemingly insignificant details found today could save thousands of dollars should the Employee later file a claim seeking medical or indemnity benefits. In fact, in one case in which we served as defense counsel, the adjuster obtained pictures of a claimant riding and performing stunts on his motorcycle. The pictures were posted on the claimant’s myspace page and were taken after his alleged accident.

It is also useful to institute a daily or a weekly checkout system. You may wish to have Employees sign out on a daily basis and indicate whether they were in an accident, whether they witnessed an accident, or whether they were in need of medical treatment prior to or upon leaving. This is an excellent tool for defending against workers’ compensation claims that are reported late. It must be noted, however, that if an Employee feels coerced or threatened to document an accident, any defenses available will be undermined.

It is important to note that, in conjunction with a checkout system, you must designate an Employee to be responsible for reviewing these reports. If an Employee indicates an accident or injury on the report, such documentation will likely suffice as notice under the requirements of Florida Statute Section 440, even if the document has not been actually reviewed by a supervisor or another Employee of your company. In this regard, upon learning of an accident or injury, you must report this information to your Workers’ Compensation Carrier to avoid penalties for late reporting or exposure related to late provision of benefits.

It is strongly recommended that every employer establish a zero tolerance policy for violence, safety violations, and fraud. To complement this policy, we recommend that each Employee sign a form acknowledging that violence, safety violations, and fraud are grounds for immediate termination. Your safety documents should explain that a safety violation is considered a failure to comply with any company safety rules, established standards of safety for the industry, OSHA rules, or any rules promulgated by an applicable regulatory agency. For your protection, safety rules should also be set forth in your Employee Handbook, which should be adhered to and distributed uniformly.

It is also recommended that the Zero Tolerance Policy be posted in a place frequented by all Employees, such as a lunchroom or near the time clock. The policy may also be reiterated at staff meetings or in Company bulletins and newsletters.

Established in 1980, Kelley Kronenberg is one of the largest Insurance & Employer defense firms in the State of Florida. They have been a leader in Florida law since they began their practice and have maintained a strong presence in the legal profession since then. Kelley Kronenberg believes that their experience and stability serve as the basis for their firm’s success. In addition, they know that their high standards are constantly complemented by their long-standing philosophy that every attorney is trained with an eye toward cost-effectiveness on behalf of their clients, along with exemplary customer service.

® 2008, Kelley Kronenberg. Reprinted with permission.