Chimp Attack Workers Comp – You’ve Got to Be Kidding

We all remember the horrific chimp attack on the Connecticut woman, Charla Nash, she reportedly went to visit her friend, when the chimp when out of control, tearing off her face. How can we forget the major injuries she sustained, now she finds herself in a quandary – the workers comp quandary.

Nash’s family filed a $50 million lawsuit against Sandra Herold, owner of the chimp – Travis. Now the other shoe drops – Ms. Herold and her attorney are claiming that this is a work related injury and Ms. Nash is only entitled to workers compensation benefits.

After I stopped laughing, I had to evaluate the merits of this case, for me it was quite simple – this is not workers comp. But I am going to give Ms. Herold and her attorney the benefits of being very smart and putting Ms. Nash in a position that may force her to file a workers compensation claim. Transferring their exposure to the comp system.

In Connecticut, Ms. Nash has to file a claim within one year of the alleged accident, if not she may be barred from filing a claim. So her choice, go ahead with her civil lawsuit or file a workers comp claim – if she does not file the claim and she looses the civil suit Ms. Herold gets away without any financial liability. This seems unfair and a cute way of manipulating the law.

Let’s take this one step further – could Ms. Herold and her attorney really convince someone that this was work related? Do they meet the workers comp burden? Can they answer these questions?

Was she in the course and scope of her employment – well Ms. Herold is alleging that Ms Nash worked for her towing company and Travis – the chimp was apart of her team. Travis was the company mascot and Ms. Nash took care of him as her regular job duties. Does this make her injuries work related? This is a test that Ms. Herold and her attorney will have to overcome.

Did the insurance carrier who insures Ms. Herold’s towing company know that the chimp was there? Did they assess the risk the chimp could pose for employees? Did they agree to insure that risk? If not this area of the “work” process may not meet the underwriting guidelines for the insurance carrier.

I could keep going but why bother, Ms. Herold and her attorney has managed to use the workers comp system to their own benefit – now the carrier will have to defend themselves against this case. In my opinion, Ms. Herold may have inadvertently sabotaged her case when she was interviewed by reporters after the incident happened – she said according to media reports that Ms. Nash came over to visit – now she says, she was an employee when she arrived at my house – you can’t have it both ways.

6.2 Million Reasons to Implement a Proactive Workers Compensation Return to Work Program

Employers are so focused on managing workers compensation injuries that they often forget that the injury itself is the gateway to employment litigation. Until now, employers have systematically overlooked and downplayed the link between the Americans with Disabilities Act (ADA) and workers compensation. As employers were asleep at the switch, the US Equal Employment Opportunity Commission (EEOC) was working diligently to remind us that the ADA is the 6.2 million dollar elephant in the workers compensation room.  

On September 29, 2009, The U.S. Equal Employment Opportunity Commission (EEOC) announced a record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) under the Americans with Disabilities Act (ADA) for $6.2 million. The consent decree, approved by Federal District Judge Wayne Andersen, represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC’s suit alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

This case not only highlights the link between workers compensation and the ADA but it magnifies the fact that twenty years after the ADA was enacted employers are still struggling to understand the process. Even large employers have a hard time balancing and defining the ADA exposure as they manage the work related disability. The EEOC Chicago District Director John Rowe, who supervised the agency’s administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers’ compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, “Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired.”

The underlying issue that this case raises is the importance of having a proactive return to work program that not only satisfies the workers compensation exposure but addresses the looming ADA accommodation requirements. It’s quite simple when employees are injured on the job employers must have a predefined plan, in place, that addresses return to work options as well as ADA accommodations. We can no longer discard injured employees from the workforce, we have to make a valiant effort to get injured employees back to work and keep them there successfully.  

If it’s so simple, why do employers struggle to create proactive return to work opportunities? And why do they fail to understand how the ADA exposure is created?

Let’s walk though a typical case that illustrates how intertwined and complicated the ADA exposure is, especially when you are balancing State workers compensation and Federal Leave guidelines.

Ouch, I’m Injured – The ADA Exposure Begins – Now!

David is a warehouse clerk, with a large multi-state employer; his job requires lifting up to 75 pounds. David lifts a box and injures his back – a workers compensation claim is filed and David is referred to an orthopedic surgeon, who eventually recommends surgery. David has back surgery and is left with significant lifting restrictions that not only affects his major life activities, but may prevent him from doing his pre-injury job without some accommodation. Several weeks after surgery and rehabilitation David’s orthopedic surgeon releases him to return to work light duty with restrictions of no lifting over 15 pounds.   

David contacts his employer to return to work and he is told that they can not accommodate his light duty restrictions. His employer request that he stay at home, continue to collect workers compensation and contact them when he is feeling better – a typical conversation that occurs when employers do not have effective return to work policies or procedures – strike one in the ADA compliance process.

David continues to contact his employer because he wants to return to work, he is told repeatedly that there is no job available to accommodate his restrictions – strike two in the ADA compliance process.

Eventually, David is released to return to work full duty with permanent restrictions of no lifting over 20 pounds. David contacts his employer to return to work and he is told that they do not have a job available within his permanent restriction. David advises his employer that he can do his regular job if, he can use a Forklift to lift any items over his lifting restriction. The employer says no – they are afraid David will have another injury because his pre-injury job requires lifting up to 75 pounds – strike three in the ADA process – the employer is now out of compliance.

To further complicate matters, while the workers compensation process was under way, David’s employer puts him on Family Medical Leave (FMLA) which provides David with 12 weeks of job protection. The company’s leave policy mandates termination at the end of the 12 weeks of FMLA protection. Based on their leave policy, David is slated for termination because his FMLA protection has expired. The employer promptly contacts their insurance carrier attempting to settle David’s workers compensation claim – there’s no need to discuss return to work because David will be offered a monetary settlement –at this point the EEOC is knocking on the employers’ door. 

In this example, the employer does not evaluate reasonable accommodations that could help David return to work light duty, they did not have the interactive conversation with David to evaluate the type of the accommodations he is requesting, which is required under the ADA. David, a long term employee, feels that there are other ways to accommodate his restrictions but his employer is not willing to work with him so he hires an attorney and the ADA Elephant is now in the room. 

Most employers do not understand the difference between workers compensation disability and qualifying for ADA protection. The key difference between workers compensation and ADA is: workers compensation was designed to provide injured employees with medical and financial assistance following a work related accident. The ADA was enacted by Congress to protect individuals from discrimination associated with their disability and to provide reasonable work accommodation, if the employee qualifies for this protection.  The exposure is created when employers do not have proactive return to work policies, when they deny reasonable accommodation and when they are more interested in terminating injured employees who have work related disabilities than brining them back to work.

David’s employer incorrectly assumes that because he did not qualify for permanent disability under workers compensation he does not qualify for Americans with Disabilities Act protection or accommodation. The confusion, under the workers compensation system, David has a permanent impairment, he is not considered permanently disabled – this technicality does not mean that he does not meet the definition of disabled under the ADA. In the eyes of David’s employer, his work status is a workers compensation issue. Wrong – this is where the wheels come off the ADA accommodation car and the employer is sailing toward a costly reality check.

In our example, the ADA exposure started when David’s employer was notified that he had restrictions that would limit his ability to perform his regular job. The key reminder for employers, the ADA exposure can start with the injury itself because the injury can meet the definition of disabled under the ADA – example: an amputated arm.

Another key point, the workers compensation system, mandates that treating physicians address the employees ability to return to work and we further ask the doctor to address the employee ability to do their regular job, we then ask the physician to address permanent restriction and we get these notices routinely – yet we don’t have a plan to evaluate accommodations that will result in injured employee retention and successful reintegration into the workforce. I am constantly amazed by the disconnect that occurs when employers are clueless about the information sitting in their files.

In essence, workers compensation is the gateway to ADA accommodation. Employers incorrectly assume that the workers compensation system will protect them from ADA litigation – surprise, surprise, it will not! In fact, the workers compensation system does little to explain the exposure and they will not provide employers with a defense for inadequate ADA policies – the two systems are independent and co-dependent on each other.

During fiscal year 2008, disability discrimination charges rose to 19,453 – an increase of 10 percent from the prior fiscal year and the highest number of disability charges filed with the EEOC in 14 years. One factor that may be contributing to this rise, the economy. As the economy forced employers to make adverse employment decisions, many did not equate terminating injured employees with ADA litigation.  

We know the wrong way – so what is the right way to handle the ADA Exposure?

The solution is simple injured employees can return to work if employers make a valiant effort to bring them back to work. Your injury management program should be cohesively blended into your regular employment practices. When evaluating job accommodations, employers must focus on ability, not disability – what can the employee do and how can we keep them working?

Remember, the workers compensation system is built to provide notification of injured employees medical and work status after each doctor’s visit. These notifications address the employee’s ability to return to work with or without restrictions. If the employee has restrictions, the restriction may eventually affect the employee ability to perform the essential functions of their pre-injury job – creating the ADA exposure. You have to have a plan before this happens. You must evaluate each injury independently and determine if the injured employees qualification for ADA protections. Then you must review the pre-injury job description, evaluate the essential functions or duties required to do the job and you must complete the interactive process with the injured worker to determine how you can accommodate them in the workforce. Is there request for accommodation reasonable and can we provide it? Without these key ingredients more employers will find themselves on the EEOC radar.

If you are still struggling with this process – there is fantastic information available at the Job Accommodation Network’s website – http://www.jan.wvu.edu/

It’s unfortunate for Sears that they had to be the one to turn the return to work light bulb on for other employers. Employers now have 6.2 million reasons to evaluate their workers compensation return to work polices and simultaneously evaluate how they comply with the Americans with Disabilities Act.

What are the Essential Components of a Successful Return-to-Work Program?

A return-to-work program is designed to facilitate the return of injured employees to work as soon as he or she is able to perform meaningful, productive work within the restrictions imposed by the treating physician. Guess what most employers don’t know where to start – here is our blueprint for getting injured employees back to work successfully:

Before the Injury:

• Create a written return-to-work policy.
• Review the policy with new employees during their new-hire orientation or with existing employees during their annual review.
• Write a detailed job demand evaluation that identifies the specific tasks and physical demands associated with each job within the company.
• Create a detailed job description for every position.
• Establish a working relationship with a walk-in clinic or occupational medical center.
• Assign a specific person in your organization that will be responsible for administering the return-to-work program. This person should have a thorough knowledge of the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and the Workers’ Compensation Statutes.

One of the complaints I hear from employers is, “I tried to bring the employee back to work but they complained the whole time they were here. Finally, in frustration we let the employee go home and they never returned to work.”  The question asked by most employers is, how do I avoid this scenario?

To eliminate or reduce the employee’s ability to manipulate the return to work process, you should implement the following post accident procedures:

Identify tasks that can be grouped together to accommodate the injured employee’s restrictions.  Focus on matching the employee’s ability to do the job versus focusing on what they cannot do.

Send a copy of the proposed modified-duty job description to the treating physician, and ask him or her to approve the position. You are asking the physician to acknowledge that the employee can complete the tasks based on the restrictions imposed. This avoids the “I’m in too much pain to do this job” scenario.

Notify the injured employee by phone and in writing that you can accommodate their restriction. Ask them to come back to work.

When the employee returns to work review the position and inform the employee that the treating physician confirmed their ability to perform the modified tasks.

• Educate your supervisors so they can effectively manage the injured employee.
• Communicate the job offer to your insurance carrier.
• Continue to monitor the employee until they are released to work full-duty or until they are at Maximum Medical Improvement.  Review the final work status and any permanent restriction in compliance with the provisions set forth in the Americans with Disabilities Act (ADA).

Conclusion – Injured Employee’s Can Return to Work Successfully!

Workers’ compensation return to work programs, have to be an integral part of your retention policy or strategy. Your employees—are your most valued asset. If employees are your most valued asset, then you should recognize the importance of implementing a comprehensive return-to-work program. Your obligation as the employer does not end when the injury begins. Returning an employee to work is an investment in your company, and it shows that you still value your employees after they are injured.

 The answer to getting injured employees back to work starts before you hire them and definitely before they are injured. Having well defined return to work policies and procedures that can be implemented immediate will insure that the employee returns to work – successfully.

Physician Your Return to Work Decision Is Not Clear – Are We On the Same Team?

Dear Dr. X – I really don’t understand the note I received from your office, can the employee come back to work or not? What do you mean he has a five pound lifting restriction – he doesn’t lift anything all day!

This scenario plays out at countless companies on a daily basis, the frustration of getting treating physicians to join the return to work team. The key question for employers, did you explain your return to work goals to the physicians who treat your injured employees? Are we asking physicians to be mind readers? Or are we allowing our employees, who may have their own agenda, to determine their return to work options?

Workers Compensation is a team sport – everyone has to work for the same goal on the same team – unfortunately medical treatment often creates a disconnect between the goal of the employer – return to work; the goal of the employee – stay at home a little bit longer and the goal of the treating doctor – fill out volumes of paperwork so he or she can get paid and keep everyone happy in the process.

It is remarkable to review statistics that compare the length of time an employee is off work due to non-work–related injuries and the length of time they are off work due to a work-related injury. If you compare diagnosis, prognosis and treatment, the work-related disability statistics are significantly higher. If you remove the fact that the injury happened at work, most individuals would recover and resume their regular duties very quickly. Adding the workers’ compensation component creates a sudden extension of symptoms, treatment and a distinct delay in the amount of time required to return to an active lifestyle.
 
We all know that even when you are on a team, individuals play with their own self interest – this is no different in workers compensation. The significant difference between team sports and workers compensation – someone has to pay when treatment decisions delay the injured workers ability to access appropriate timely medical treatment or when the employer can not get appropriate information to get the injured worker back to work timely.

How do you get everyone to work on your return to work team? 

The first step for employers – stop pretending that your goal is not getting the employee back to work as soon as possible – return to work is not a secret! Everyone who works for your company should understand your company’s return to work policy, the minute they start working for your organization. Keep the policy simple – “If you’re injured we will make every attempt to bring you back to work, until you are able to return to your pre-injury position.”

The second step – get the physicians who treat your employees to understand the same message. One of the realizations that most employers fail to acknowledge, they are not in the room when their employees seek medical treatment. Imagine yourself as the injured employee. What would you tell the doctor that would keep you off work? If you do not provide the treating doctor with adequate information to evaluate the employees ability to return to work – you’re giving the doctor a crystal ball, then complaining when he doesn’t see the same vision you do.

The third step – having a pre-determined injury management strategy that is consistent, cohesive and tactical. Everything starts on the ground floor; do your employees understand their role in the return to work process? Do you have a policy that you can follow every time an employee is injured? Or are you willing to cast blame on the treating doctor for your failure to plan for the inevitable injury that will occur at your company. Effective return to work programs start the day you hire your first employee not the day the file the Notice of Injury.

Forth step – understand your job site. If you don’t have clear job descriptions it is not the doctors’ fault that you don’t know what the employee did before the accident. Frankly, there is no excuse for not knowing the job demands and communicating that information to the treating physician. The job description dispels any myths or misinterpretations about the job requirements. A very specific job description is an essential part of the return to work process.

 Every employee who sustains an injury with your company should take a copy of their pre-injury job description to the initial appointment. If the employee is referred to a specialist, a copy of the job description should be sent to that doctor. Provide an area on the Job Description Form that asks the doctor to confirm receipt and asks him or her to address the likelihood of the employee returning to this position immediately. If the employee can not return to the position immediately ask the treating physician to give you an estimated return date.  

Fifth Step – document and consistent follow through. Return to work should not be left up to your insurance carrier; it is the employers’ responsibility to make sure the employee returns to work or stays at work after the injury – not the adjuster, treating doctor or ancillary provider – it your job to make sure it happens. Use the restrictions given by treating physicians to as a tool to find the employee a job – focus on what the employee can do versus what the limitations are. Let’s not forget one other thing – human resources. Workers compensation does not mean employment rules go out the window your lack of HR polices is not the physicians fault. Follow through means that you get all the stakeholders on your return to work team to read the same playbook.

Finally, we have to stop accepting poor performance and rewarding the behavior with money. If you go into a department store and you get bad service, do you keep shopping there? Workers compensation is the only consumer based process that accepts mediocre service and rewards that type of service with a constant stream of business. What do I mean? For many years I worked as an adjuster and during those years I encountered numerous physicians who did not cooperate with my request for medical treatment status, refused to return my phone calls and admonish me to get the work status from the dictation attached to the bill. These physicians continued to stay on the approved provider list and year after year we sent them more patients or allowed the employee to select them, without doing anything to correct the disruptive relationship. Why did we do this? I guess we expected a different result – no we need to complain.

Employers have a responsibility to insure that their employees receive adequate timely medical treatment. Timely, is the key word – waiting weeks for treatment authorization can delay or eliminate the return to work options. Employers also have an expectation that treating physicians will make every attempt to work with the employer to safety bring the employee back to work.

Physicians we recognize that when you went to medical school they did not prepare you to handle the nuances of the workers compensation system, with a little effort we will educate you on the process, because we have to collectively work towards the same goal – getting the injured employees back to work successfully.

Clearly we have a lot of work to do to make this relationship productive.  Everyone has a vested interest in making sure injured employees receive exceptional medical treatment – that results in their rehabilitation from the injury and their speedy return to gainful productive employment. Treating physicians are the most important factor in the return to work process. The relationship that you develop with your authorized treating doctors will often determine if your employees return to work or remain off work. We have to make every effort to create a team that works towards the same goal.