By Amy Siegel Oran, Esquire, Partner – Kelley Kronenberg
The hazards encountered on a daily basis by those working in municipalities often lead to injuries, the restrictions from which are inherently difficult to accommodate.
Despite the best training and safety equipment you may provide, accidents will happen. Carrying workers’ compensation coverage is not only legally required, but also the best way to reduce the financial risk; however, relying on your carrier is not enough. To keep your claim costs low and your premiums reasonable, a carefully tailored, well-executed return to work (RTW) policy is critical.
To run an RTW program, you need to craft one particular to the nature of your municipality and to your divisions within the town or city itself. There are twelve core steps to guide you in the creation and implementation of a successful program:
1. Implement a written RTW policy that is applied evenly.
2. Decide what job to offer
3. Ensure clear knowledge of employee’s limitations
4. Send light duty job offer letter via proper means
5. Manage the first day back with care
6. Know what you can/cannot say
7. Manage co-workers and their reactions
8. Monitor actual work of injured employee on light duty
9. Accommodate medical appointments without getting taken advantage of
10. Respond to complaints of the injured worker
11. Decide how to pay the employee on light duty
12. Report earnings to WC Carrier
Restrictions often seen in the public service sector can make RTW more complicated, but it is rarely impossible; if the treating physician says your employee can RTW in some capacity, find a way for she or he to do so using these helpful tips.
Step 1: Implement a written RTW policy that is applied evenly: the program, as crafted, should apply to all employees equally and be administered by one individual or team to monitor and ensure even-handed application. For example, if your waste and sanitation department workers are offered light duty, the police officers must be as well.
Step 2: Decide what job to offer: you need not place the employee back in their prior role, as is often impossible. For example, if a firefighter sustains a burn, avoidance of heat is a common restriction; look to a job far from the heat, perhaps conducting investigations of suspicious fires or as a 911 operator even. Sedentary or very light duty jobs are often best found in the administration department.
Step 3: Ensure clear knowledge of employee’s limitations: the injured worker should bring forms to you with the doctor’s restrictions; but, if not received, the insurance adjuster can provide you copies. Lifting restrictions are the most common, but with limitations on the length of time one may sit or stand or how often one must change positions arise regularly as well.
Step 4: Send light duty job offer letter via proper means: the law on this point is clear – you must notify the injured worker of the light duty, in writing, and via trackable means. A phone call telling the injured worker to return will not suffice. The letter need not state the job you’re offering, the shifts, or the pay, just that you have a position within the restrictions, and directing the employee to whom to report and when. If the job is refused, notify the adjuster immediately.
Step 5: Manage the first day back with care: once the employee reports to work, set forth the details of the assignment and your expectations. Ensure the tasks are within the most recent restrictions, give the information about the new role, the shifts, and the pay. Certain positions within a town or city work a non-traditional schedule, for example, two days on/one day off. The light duty you have may not match that, nor does it have to; simply ensure the new schedule is clearly conveyed and understood.
Step 6: Know what you can/cannot say: keeping the peace is critical and that begins with management. It is incumbent upon supervisors to be role models. Ask the employee how she/he is feeling or if she/he needs help to let you know. Do not accuse or imply someone of faking an injury or exaggerating pain, and do not broach the topic of lawyers, lawsuits, or litigation.
Step 7: Manage co-workers and their reactions: The aforementioned role models must not only lead by example, but must play referee. Do not allow co-workers to lob accusations such as those mentioned above or gossip. Temper jealousy with comments like: “if you got hurt, wouldn’t you want us to help you too?” If co-workers are heard talking about money the injured worker is supposedly getting through the case, end that conversation immediately as these claims are contagious; the last thing you want is four more water plant operators alleging back injuries from changing out meters.
Step 8: Monitor actual work of injured employee on light duty: one who is working with pain is more prone to re-injure or exacerbate her/his condition. Embarrassment, bravado, and thoughtlessness often leads the worker on light duty to not ask for help and instead, act outside the restrictions. For example, strapping on a “gun belt” with the multitude of items attached thereto, when there are strict weight-based restrictions in place. The pressure that may place on the low back and throughout the legs can increase pain and lead to tighter restrictions or a no work status, which can and does increase the claim costs. Management must watch to ensure the job is being done right as well as being done; texting in the corner instead of investigating the new applicants from the police academy.
Step 9: Accommodate medical appointments without getting taken advantage of: inevitably, some workers will try to take advantage. You must allow your workers to go to their appointments; however, in the public sector, work schedules usually do not match the standard office hours of a doctor. Thus, encourage your employees to make their P.T. and other appointments before shifts begin or whatever accommodations allow medical compliance without work absences.
Step 10: Respond to complaints of the injured worker: “My back hurts, I need to go home.” “If your back hurts, you need to go to the doctor, because the job is within your restrictions.” “This is work I am not allowed to do.” “Let’s go over your most recent restrictions to ensure your safety.” The key is not to give in and not allow the employee to take advantage of the kindness of her/his employer.
Step 11: Decide how to pay the employee on light duty: you need not compensate at the same rate as prior to the accident and having some employees on a salary and some paid hourly can lead to confusion. The goal, to have the best financial outcome in your claim, is to offer work that allows the employee to earn 80% of that which was being earned pre-injury. You’ll need to update the insurance adjuster on the RTW and she/he can assist in these calculations.
Step 12: Report earnings to WC Carrier: despite your best efforts, there are circumstances under which the employee will still be entitled to some compensation from the insurance carrier; it is incumbent upon you to ensure the adjuster has the weekly earnings to ensure benefits are properly and timely administered.
The benefits of a well-run return to work program are multi-faceted. Getting the worker back in the line of duty lessens the amount of money being paid out by the carrier and thus your immediate claim costs and future insurance rates. Allowing the employee to sit at home leads to otherwise avoidable litigation; the lawyer ads playing on TV during the day are enticing. Hearing the local firm got $1M for another injured worker leads your employee to see dollar signs flashing in neon lights.
It also fosters wallowing and pain-focused behavior which is detrimental to psychological health and makes it harder to convince someone she/he is capable of working. It is difficult, if not impossible, for many to work while taking medications; as such, the RTW lessens the amount of medication used and lowers the risk of opioid addiction. Bringing your injured worker back makes it impossible for her/his attorney to argue she/he is too injured to work. Lastly, do not abandon your employee; show you care by doing what you can to ensure she/he still has income to pay the rent and feed the family. It may not be an easy task, to bring back an injured worker, but the financial benefits can be significant and as noted, it goes well-beyond the money; it is beneficial to the physical and mental health of your employee too, and that is a win/win. Amy Siegel Oran is a Partner of Kelley Kronenberg’s West Palm Beach office, concentrating her practice exclusively on Workers’ Compensation defense. She focuses her practice on the defense of workers’ compensation claims on behalf of employers, insurance carriers, self-insured corporations, third party administrators, and claims servicing agencies. Her background includes extensive experience with all aspects of Litigation and Appellate Law. Amy is certified by the state of Florida to conduct Continuing Education courses and regularly presents seminars on a wide variety of legal matters. She has served on the Workers’ Compensation Practice Committee for the Palm Beach County Bar Association, playing an integral role in planning the annual Bench Bar Conference, as well as speaking at the Conference on numerous occasions. Additionally, Amy provides regular training seminars to clients, advising supervisors, managers and employers on proper claim reporting and handling techniques. Amy is also very active with the South Florida affiliate of Susan G. Komen. After three years on the organization’s Board of Directors, Amy now proudly serves as Vice President for the Board of Directors for both the Executive Board and Executive Committees of Susan G. Komen Florida.
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