There are many opportunities to reduce workers’ compensation liability exposure both before and after litigation commences.  Indeed, one of the best strategies for reducing costs is to develop a culture of “safety” in the workplace, and to actively assess and implement engineering and ergonomic changes to minimize injuries.  It is equally important to implement a list of workers’ compensation panel physicians, who are familiar with your business and who have exhibited a proactive “return to work” philosophy.  The focus of this article is on steps that should be taken from the defense attorney perspective.  Employers who take an active role in their litigated cases consistently experience lower workers’ compensation costs and fewer long term cases.

Accident Investigation

Although very basic, this step is sometimes overlooked by experienced safety and claims professionals.  The basics include:

  • Visiting the accident site to obtain a detailed understanding of how the alleged injury occurred. The investigation should be supplemented by a detailed incident report, wherein the employee must explain, in detail, how the injury occurred. Also, make sure the injured employee has been given a copy of the ”Notification of Rights and Duties” form, along with a copy of the posted panel physician list, even if these documents were provided during orientation or at a safety meeting.  Failure to provide these forms negate any obligation the employee has to treat with a panel physician for the first 90 days.
  • Interview witnesses to the incident, co-employees familiar with the allegations being made by claimant and claimant’s immediate supervisor:
    • Was there any evidence of pre-existing complaints or problems?
    • Was the claimant disciplined recently or are there other factors that make the allegation of a work-related injury suspect?
  • Review the personnel file and dispensary log for “credibility clues” (i.e., recent hire, disciplinary probation, recent demotion or change in shift or hours of work, personality conflicts or issues with supervisor, etc.).
  • Obtain HIPAA compliant authorization to gain access to family doctor records.
    • This is the single most important (yet often overlooked) step employers can take.
    • Remember that a “block 6” denial of a claim “pending further medical investigation,” is often the best move to make in a questionable case, where previous records might disclose a pre­ existing and non-work related medical condition.
  • If possible, request an IDEX search to disclose prior claims against other employers.

Be Your Own Advocate

Too often, employers feel obligated to continue to employ an injured employee because the employer relies on the advice of its insurance carrier’s attorney or claims representative. Very often, however, the insurance company’s advice is motivated by its desire to limit their own exposure, rather than by the employer’s operational needs or policies.  If you don’t know your rights as an employer and do not exercise those rights, it is far more likely that you will continue to employ an unproductive employee for a very long time, or that you will violate your own leave policies.  For example, by continuing to provide modified duty work, you may inadvertently be setting a precedent for “permanent” light duty assignments for disabled workers.  This benefits neither the employer who is paying for the unproductive employee, nor the injured employee, who is denied the training and opportunity to find a position where he or she can be productive.file5601297827370

Vendor Selection

The firms and individuals you select to represent your company in workers’ compensation matters will have a major impact on the results you achieve and your overall workers’ compensation exposure. The major players need to function well as a team; they need to respect the employers’ policies and rights as a “customer” and they should have a proven track record with regard to employment litigation.

  • Claims Administrator – – This person should be familiar with the complexities of Pennsylvania law, proper reserving practices, the employer’s return-to-work program and policies, and any industry-specific safety issues. Quarterly claims review meetings, to review both litigated and “medical only” claims should be offered.
  • Rehab Nurse – – Perhaps the most important member of the team, if used correctly, the nurse should offer advice on establishing and maintaining the physician panel list, attend physician appointments on lost time cases, make recommendations for Independent Medical Exams (“IME” and fitness-­for-duty examinations and attend claims review meetings. While telephonic nurse case management may save on vendor costs, there is no substitute for an aggressive “hands on” approach, to reducing wage loss exposure.
  • Panel Physicians – -At least 6 providers or provider groups, covering the range of expected injuries in your particular workplace. All providers need to be “screened” with respect to return to work attitudes and willingness to provide critical causation opinions. The “gate keeper” provider should be familiar with the employer’s operation and the range of modified duty positions that are available for injured workers.

Counsel Selection

Employers should not be shy about making their preferences for legal representation known to the carrier or third party administrator.  The attorney’s primary practice should be in workers’ compensation and employer references should be readily available. Your attorney should have a good working knowledge of ADA, FMLA, Unemployment Compensation, PHRC, OSHA and wrongful discharge, since workers’ compensation cases often involve other related issues. Often times, large carriers and Third Party Administrators (“TPAs”) use “captive firms” to handle all their cases at a reduced rate or “flat fee.”  Although there may be a short-term cost savings in terms of reduced fees, the lawyers handling these cases typically have extremely large case loads and lack the time to effectively manage tough cases and lack the training and expertise to advise the employers on ancillary matters, including discrimination, termination, and FMLA issues, which may involve an even higher exposure to the employer than the workers’ compensation case. Most carriers and TPAs are willing to make exceptions and offer a recommended “non-panel” lawyer to handle a workers’ compensation case, but only if the employer specifically asks for the assignment. Likewise, many carriers and TPAs offer “telephone nurse case management,” which does save on vendor costs in the short term, but is largely ineffective when direct face-to-­face meetings with treating physicians are required.

When You Must Go to Court

If your testimony is required in a given case:

  • Know the file – – Review the personnel records, dispensary file, claimant’s testimony, and all other available documentation. This will allow you to address any unanticipated issues that may arise on cross-examination.  It will also give you confidence that will, in turn, make your testimony more credible and believable. Make sure the “right” witnesses are available to testify to avoid “hearsay” objections.
  • Review your testimony with counsel – -Do not hesitate to ask for a separate meeting, in advance of the hearing, to find out what specific questions you will be asked on direct examination and what questions might be asked on cross. You need to know how the hearing will be conducted by the WCJ and what the goal of your testimony will be.  Although the testimony should not seem “rehearsed,” you should be confident in your ability to effectively handle tough questions under pressure.
  • On the witness stand, answer the question directly– -Focus on the question and try to start with a direct response first, such as “yes” or “no,” followed by an explanation. However, do not speculate or guess at answers–do not be afraid to say “I don’t remember” or “I don’t know,” or “could you repeat the question,” if you need clarification.
  • Don’t be afraid to “take on” opposing counsel— If you have prepared in the manner suggested above, the chances are excellent that you are much better prepared than your adversary. Rather than letting the attorney “bully” you by mischaracterizing your testimony, feel free to point out that he/she may have “misunderstood” your previous answer and offer to “clarify” things for them.  Keep in mind that your attorney will also have a chance to “rehabilitate” any damage done on cross-examination, by allowing you to elaborate on your prior answers during redirect examination.

Be Creative

Make your case “stand out.”

  • These are the direct comments of a Lancaster WC Judge.
  • Plant visits, job videos/photos, unusual exhibits, diagrams/maps, accident reconstruction, etc. are often useful ways to supplement employer testimony.

If you have questions about a pending workers’ compensation matter, please contact Paul Clouser or Denise Elliott.