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No-fault coverage No one wants to deny workers’ comp benefits for legitimate accidents. But what about incidents that are partly the fault of the employee? Suppose the worker failed to use a safety device, engaged in horseplay or worked while intoxicated? What if an injury was self-inflicted? Many employers would like to weed out such questionable claims as a way of controlling insurance costs and it’s certainly possible to mount defenses against such claims. But unless some clear-cut fraud is involved, prevailing in court can be difficult. “Most workers’ compensation systems have become very liberal as to the definition of an accident,” says James J. Moore, president of J&L Risk Management Consultants, a Raleigh, N.C.-based firm that helps employers manage workers’ comp costs. “The fact is that courts deny benefits only rarely.” Why? One reason is a matter of judgment. Legitimate claims often arise because employees were not paying attention to what they were doing or performed tasks out of their normal work routine. Trying to draw a bright line between legitimate and improper situations can be difficult. Another reason is a matter of perception. “In any workers’ comp case it becomes the ‘big bad insurance company’ against the ‘one little employee,’ ” Moore says. “Workers’ compensation 42 | BedTimes | April 2010 ‘The best approach is to take steps to reduce workplace accidents that lead to claims. The least expensive accident is the one that never happens.’ judges tend to lean toward the testimony of the employee.” Lawsuits avoided While it may seem that workers’ comp laws are stacked in favor of employees, they also protect employers from costly lawsuits brought by injured workers. “The trade-off for a no-fault system is that workers’ compensation is generally the exclusive remedy for employees injured in the workplace,” Fox says. “Only in very limited instances may an employee circumvent the system and sue the employer.” What are those instances? Once again state law rules. 3 ways to reduce premiums Here are some ideas from ron Peters, a partner in the San Jose, Calif., office of Littler Mendelson, a labor and employment law firm representing management. ➤ Investigate claims “A lot of employers just send to the doctor every worker who reports an injury,” Peters says. “That can lead to a lot of abuse. Once a culture of abuse gets started, it’s difficult to stop.” Investigate all claims to see if they are legitimate. ➤ Process claims quickly Set up procedures for handling injury claims efficiently. “Establish and communicate a policy that accidents must be reported immediately,” he says. “It is hard to investigate a report that is two days old. And late reports are often red flags for false claims.” ➤ Establish return-to-work plans “The faster people get back to work, the lower your expenses,” Peters says. “Get guidance from the doctor on how an injured worker can be accommodated in the workplace. Very often the individual can perform light duties.” “Using Pennsylvania as an example,” Fox says, “an injured worker could sue his employer outside of the workers’ compensation system if the employer failed to maintain workers’ compensation insurance or the injury was intentionally caused by the employer. That being said, Pennsylvania courts have held that even a willful violation of OSHA safety regulations will not expose an employer to civil liability.” Safety first There is one highly effective way to control workers’ comp costs: Launch a workplace safety program and constantly work to improve it. If you experience fewer accidents, you’ll incur lower medical costs, which translate into lower workers’ comp premiums. “A lot of employers come to me and ask, ‘How can we reduce the cost of this claim?’ ” Moore says. “Unfortunately, once a claim is made you are not going to reduce the cost. The best approach is to take steps to reduce workplace accidents that lead to claims. The least expensive accident is the one that never happens.” While safety programs can become quite complex, it’s wise to start small and build from there. The first step is to identify the accidents most likely to happen. “Slips, trips and falls are by far the most common accidents for almost all employers,” Moore says. “I see a ton of knee and ankle injuries resulting from what seem like minor accidents.” Such injuries can be damaging to the worker and to the business. “If you cannot put your weight on your hip or your knees or your ankle, you are going to be out of work a long time,” Moore says. “That is very costly.” Train employees to quickly correct conditions that might seem innocuous but that can lead to slips, trips and falls. For example: ➤ Tangled rugs Straighten any rugs that have been folded over. Watch for corners that curve upward. Make sure the rugs themselves don’t move around easily on the floor. www.sleepproducts.org/bedtimes
➤ Wet floors When it rains, do the floors just inside your doorways get wet? Dry them immediately and install high-friction rugs. If necessary, put up temporary barriers to guide people around wet areas. ➤ Obstructions Don’t leave boxes or other items in walkways. Scoop up any papers, textile scraps or other waste that may cause people to slip. “Studies show that stepping to different levels causes many trips and falls,” Moore says. “So you need to pay special attention to stairways, any changes in floor levels or sections of floor that are on a gradient.” www.sleepproducts.org/bedtimes Put roughened safety strips across steps to help shoes get a firm hold. Place mats at the bottom and top of stairs (and secure them well) to catch any water tracked in when it rains. Make sure handrails and banisters are secure. Changes in floor levels need to be clearly marked. Install brightly colored strips along divisions and railings. As for floors that are on a gradient, post warning signs and a walkway railing. Other risks Workers, like many on the mattress factory floor who are engaged in repetitive tasks, are subject to carpal tunnel syndrome and other injuries that can spark workers’ comp claims. “In any situation involving repetitive work, I recommend job rotation,” says Pam Hart, director of safety and wellness programs at Doherty Employer Services, a Minneapolis-based human resource outsourcing firm. “You can also encourage frequent stretching and short breaks.” Make sure workstations are structured properly so that workers’ bodies are in comfortable positions. Consultants schooled in ergonomics can assist. “Be especially careful about any jobs that require employees to lift, pull or hold heavy items,” says Claire Wilkinson, vice president for global issues at the New York-based Insurance Information Institute. “Overexertion of this kind accounts for a large proportion of injuries.” Involve employees Employees can be excellent sources of information on workplace hazards. “I highly recommend that (companies) gather employee feedback throughout the safety program and incorporate employees into establishing a safe place to work,” says BedTimes | April 2010 | 43
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