Improving recovery after a work-related injury benefits everyone.
By Randy DeVaul
When a workplace injury occurs, a number of events can shape the outcome of that injury for both the employer and the employee. Negative consequences include loss of worker experience, loss of quality, loss from unscheduled overtime, loss through an increase in workers’ compensation modification experience rates (resulting in higher premiums for the next three years) and potential loss of community and employee relationships. In addition, the employer increases the potential for a regulatory inspection or investigation with the likelihood of citations and penalties as well as the associated costs to correct any noted deficiencies. All of these lead to a loss in profits taken directly from the bottom line.
The employer’s goal, then, should be to proactively prevent injuries from occurring in the first place. Should an injury occur, however, it is critical for the employer to manage the injury and ensure the employee has the ability to heal, recover and return to work as quickly as possible.
An employer should know a number of facets about handling an injury, its claim and getting the employee back to work. One of those facets is the employer’s Return-to-Work policy. Before launching into the details, however, there must be a little background.
Some expensive myths are circulating about workers’ compensation. The top myths include:
- It happened at work, so it’s automatically covered.
- Workers’ comp pays for everything, no matter what.
- Employees receive full pay from the first day of injury.
- The employee doesn’t have to come back to work until he decides he is ready.
If there is already some mistrust, you may hear:
- “My boss cares more about the numbers than he (or she) does about me.”
- “Yeah, that guy just wants to lay out and milk it. There’s nothing wrong with him.”
- “I know they (the company) don’t really care. They just want me back to work so they can make money.”
- “I think he really got hurt at home. He’s just looking for a free ride.”
- “The company won’t pay me what I’m supposed to get. I’m calling a lawyer!”
These myths lead to a high potential for litigation, leaving the employee feeling like there was no choice but to hire an attorney to look out for his or her rights.
Though an insurance carrier may provide some guidance, an employer cannot rely on the claims adjuster knowing the details of the employer’s specific state or province’s requirements. Here are just a few of the facts that vary between states that employers must know to ensure a claim is handled or whether a claim even exists in the first place:
Who is not covered. Categories of covered employees differ from state to state. Generally, however, workers covered by federal workers’ compensation laws are not covered by state law. In most (but not all) states, domestic workers, casual employees, farm workers, the clergy and independent contractors are not covered.
What is covered. In most states, injuries that are directly related to the work that is assigned or being performed by an employee or in the course of performing those assigned duties are covered under the workers’ compensation program. In just a few states, any injury occurring on the work premises during scheduled work hours may be covered.
What is not covered. In most (but not all) states, injuries resulting from a worker’s intoxication, intention to harm himself or another, the worker’s commute time), horseplay or directly and willfully violating a safety procedure, and injuries resulting from recreational activities are not covered.
Outside-the-state coverage. Most state workers’ compensation laws are “extra-territorial.” This means that an employee hired in one state, who is hurt in a work-related event while out of state, is eligible for workers’ compensation under the hiring state’s law – not in the state where the injury occurred. Some states limit the time the employee can have been out of state for coverage to apply; some states give the employee the option of claiming coverage under either state.
What does workers’ compensation insurance have to do with a Return-to-Work policy? An employer must know what is compensable and what is not; an employer must ensure the injured employee is “covered” under the policy and location of where that policy is in effect in relation to the location of the employee; an employer must know when to file for workers’ compensation versus another type of coverage.
Understanding these factors will help determine how to draft and implement a Return-to-Work policy, how benefits and claims are handled by the carrier and, most importantly, how well employee relationships are maintained.
The Return-to-Work concept benefits the employee and the employer. It is a fact that getting an employee back to a normal work routine after an injury is therapeutic: It reduces some of the need for external physical therapy; it provides a normal schedule for the injured person and his or her family by getting back to work; it helps the morale and emotional state of the injured employee by getting back to a productive schedule; and it helps the injured employee return to earn a normal paycheck as well as return to work if the governing authority requires a “waiting period” on payment of claims.
The employer should try to get the employee back to pre-injury status as quickly as possible without compromising the injured’s health or well-being. An occupational medicine physician knows the value of this practice for a faster healing and recovery period, and your insurance carrier knows the value of reducing treatment time, treatment costs and lost-time payment of wages. Some of the employer benefits include cost savings on overtime, staffing, medical treatments, claims costs and other indirect costs associated with the injury.
The first thing the employer needs is a written Return-to-Work policy that is part of the policy manual or employee handbook. This ensures that all employees as well as treating physicians know your policy.
Note that this policy is not to get the employee back to work at the expense or compromise of the employee’s health and recovery. It is intended to help the employee return to a normal schedule and routine after an injury while helping the healing and recovery process.
Another benefit for such a policy is the reduction in potential fraudulent claims. If the employer has a written and published policy and an injured employee refuses to come back to work for regular or modified duty after the treating physician approves or prescribes it, the employee may lose all compensation benefits from that point forward.
To ensure a physician can provide prescribed restrictions, the employer must have a position description that is detailed and specific to the duties that must be performed normally. The physician must also know that a workers’ compensation injury is exempt from HIPAA (the Health Insurance Portability and Accountability Act), so sharing medical records and treatment with the employer is not a violation of the patient’s confidentiality rights. Not sharing those records with the employer is actually a violation of law under workers’ compensation statutes. Think of it this way: The employer is buying the coverage and paying for the treatment. The employer owns the claim and all information, rights and privileges pertaining to it.
There is no legal requirement for an employer to have a Return-to-Work policy. By not having a formal written policy, however, the employer has no control over how long the injured employee stays at home but still may end up paying the costs for recovery.
Bringing an injured employee back to work can send a very positive and uplifting message to the injured person and to the rest of the team. It tells the employee that he is valuable to the team, that his efforts are appreciated and that the employer wants him back. Also, it allows the employee to get his mind off of the injury and back to a more normal routine. Studies have shown that getting back to work also reduces the out-of-pocket costs associated with most waiting periods in workers’ compensation programs. In Virginia, for example, an employee must be out for seven days before compensation of wages begins at day eight, and then it is not retroactive. An employee returning to work on restricted duty before the seven days are up allows him to see a paycheck and not fall under increased financial pressures in addition to the recovery time for the injury.
So although such a policy is not required, there are numerous benefits for the employee and employer if a formal Return-to-Work policy is in place. With any policy, it is most important to be consistent in its application. Front-line supervisors and managers need to know the policy and find legitimate opportunities for injured employees to return to work, perhaps for a light or modified job duty. Employees must know the policy so that they are not surprised by the expectation for them to return to work as soon as possible or the understanding that they can lose benefits by refusing to do so after the treating physician releases them.
An employer must develop a relationship with the treating physician. If an employer is in a state where the employee chooses the physician, contact should be made with that treating physician as soon as possible to review the policy and the injured employee’s job description. A treating physician who knows the employer provides modified duty to an injured employee will more likely let the employee go back to work rather than prescribe staying at home.
Here are a few final thoughts. Designate a person within human resources or safety to be the point of contact for workers’ compensation claims. Employees need the name of one person to contact for answers so that they do not have to seek out the right person on their own. The employer needs to ensure the injured employee receives all the benefits of the policy, not just the ones that work well for the employer. And the employer needs to know that someone within the company will manage the claim to avoid litigation and surprise or unjustified treatment and costs.
Communicating and training employees and managers on workers’ compensation, including Return-to-Work issues, benefits everyone. Employers should establish a dialog with the workers’ compensation carrier for more information as well as tap trade associations for assistance as needed.
Randy DeVaul has 25 years of experience in safety and emergency services. He is the author of three performance-based workplace safety books and creator of the “Safe At Home” column and series. His background includes experience in regulatory, corporate, and industrial settings in human resources and safety as a consultant, speaker, and internationally published writer. For information on his books or services or to provide direct comments, email Randy at [email protected].