I have been in and around the workers’ compensation (“WC”) system since 1992, when I was in Kentucky and working as an Employee Relations Representative/Human Resources Supervisor at United Parcel Service. I was fortunate to have worked in “the tightest ship in the shipping business” before it became publicly-traded and when I could say with all confidence that we functioned like a well-oiled machine (in most areas). We ensured medical treatment was administered promptly, when needed. We conducted thorough investigations of accidents, took statements from the injured workers and witnesses, photographed accident scenes, completed the necessary forms, and presumably provided this information to our insurance carrier. So, when I began my WC legal career in New York State (“NYS”), I was surprised to learn that the employer is typically left out of the process after the initial notice is given. Many employers simply call their carriers and report the minimal information about the accident (e.g., the name of the injured worker, the date of accident, the type of injury). This is far less than is required to complete the mandatory C-2 report, which was recently replaced by the electronic FROI series of forms. This incomplete action also places the employer and its carrier at a disadvantage when defending claims that involve fraud or abuse because the time for investigation and decision-making is very short.
The absolute latest a carrier can choose to respond to a claim is 25 days after the EC-84 Notice of Indexing (“NOI”). See http://www.wcb.ny.gov/content/main/TheBoard/BenetechAuditReport.pdf. If a FROI-04 Notice of Controversy is filed on the 26th day or later, most defenses are waived. The NYS Workers Compensation Board (“WCB”) strictly applies this rule against carriers and is increasingly penalizing carriers for asserting their defenses. (In one case, a carrier filed a RFA-2 application to obtain the WCB’s help with discovery requests the claimant had ignored. The Board interpreted the application as one to reduce or suspend payments and referred the case to the Office of Appeals solely for the purposes of penalizing the carrier for making an application as interpreted.) Yet employers continue to express shock when they lose such cases.
As I have taught in my WC workshops, employers are my best investigators. See AAMI Workers Comp Basic Presentation, NYWC in Plain English or Claims Management). They typically know their employees better than anyone (other than their family members or friends) and can provide a lot of useful information when we are investigating claims. Most importantly, they are the ones with the most details regarding the accident. Yet, they often fail to relay these details to their carriers or WC defense counsel. Due to the serious prejudice that can occur to an employer or carrier when claims aren’t investigated fully and quickly, I recommend that employers:
- Complete the mandatory WC forms (e.g., C-2, C-11, C-240) immediately after securing medical care for an injured worker. Providing ALL of the pertinent details most concurrent with the accident ensures the information provided is most accurate. Memories are faulty. Other work tasks will get in the way. Witnesses will become unavailable. Injured workers will become frustrated that their injuries are not being addressed with care. Take the follow-up activity as seriously as you take the injury.
- Complete the forms as if they were job applications. Do you remember being told not to leave any field blank, even if you write “not applicable” or “N/A”? Such action relays to the reviewer that you have fully considered each inquiry and provided the necessary information. You did not accidentally–or intentionally–skip a section. In the same way that blank sections can prejudice a recruiter and lead to continued unemployment, blank fields on a C-2, C-11 or C-240 form can prejudice the NYS WCB against an employer and lead to adverse claims determinations. Show the Board that you are not another heartless employer that forgets about its employees if they aren’t working.
- Use checklists to ensure all investigation and claims documents are sent promptly to the insurance carrier. I am developing some checklists for my employer-clients for this purpose. If you would like more information on these, please contact me by email, telephone, Twitter, Facebook, or fax message.
- Call injured workers at least once every two weeks during their disability. This provides you an opportunity to express your concern for their recovery, your appreciation for their work and your desire to have them return. If you do not see the benefit of such communications with certain workers, this is not the time to exhibit your disappointment in their performance. That issue should have been addressed before the injury and can be discussed once he or she is back at work. A WC claim is not an opportunity to discharge an undesirable worker. It can also get you sued for discrimination. Instead, tap into your compassionate leadership and treat your injured employee as you would want to be treated if you were injured on the job.
In short, an employer’s involvement in its WC claims does not end with the initial report. You will get better results if you maintain your involvement and participate fully in the resolution process.