In the olden days, we lamented that the workers’ compensation system was going to drive us mad. I distinctly remember when workers’ compensation comprised of five or six moving parts:
■ Medical Treatment
■ Lost Wages
■ Impairment Ratings
■ Permanent Disability
■ Death Benefits
■ Litigation & Settlements
2009 ushered in a seismic shift, using the workers’ compensation system as a catalyst for employment litigation. Litigation that arises out of, the course and scope of the work related injury. Most employers and insurance carriers are still operating in the olden days, even though the litigation manuscript is being written right under our nose.
■ August 6, 2009, Indiana Court of Appeals ruled that Boston’s Gourmet Pizza must pay for Gastric bypass or weigh loss surgery, even if the employee was over weight at hire. The court ruled that post accident weight gain and potential surgical failure justified paying for the weight loss surgery. The cost $25,000 to $30,000 and the lifetime exposure to post surgical complications. If employers refuse to hire over weight candidates, could they be in violation of Federal laws? – Do you hire obese candidates knowing that you may have to pay for weight loss surgery, if they have an injury? (Boston’s Gourmet Pizza v. Childers)
■ September 28, 2009, Oregon Court of Appeals ruled that Georgia Pacific use of a Physical Capacity Evaluations violated the Americans with Disabilities Act (ADA) – the test was conducted to determine the employee’s ability to return to the pre-injury job – unfortunately the result was used to terminate the employee. Can we still use the FCE or PCE test to evaluate the employee’s ability to do their pre-injury job? Or to end the cycle of injured employees malingering in the workers’ comp system? Maybe not! (Indegard v. Georgia Pacific Corporation)
■ September 29, 2009, the Equal Employment Opportunity Commission (EEOC) settled the largest Americans with Disabilities Act (ADA) suit against Sears, arising out of a workers’ compensation claim. According to the EEOC, Sears failed to offer light duty or accommodate injured employees when they attempted to return to work – the settlement $6.2 million. The lesson – not having a return to work program will cost you millions. (John Bava/EEOC vs. Sears Roebuck – www.eeoc.gov/press/09-29-09.html)
The single pattern that emerged from these cases, the bronze coating on the workers’ compensation system is being eroded by outside forces. Employers and insurance agents must recognize that the olden days are gone and the new exposure goes way beyond the injury. Employers must evaluate and balance the workers’ compensation claim against the new exposures:
■ ADA or ADAAA
■ FMLA
■ Retaliatory Discharge
■ Age Discrimination
■ Wage and Hour Complaints…
…Exposures that are not covered by the workers’ compensation insurance policy. In today’s litigation environment, injury management is much more than calling the claim into the insurance carrier. We must guide employers from the old way of thinking, “My insurance carrier will handle that” to “What’s the new exposure for our company?” and “What can we do to minimize spin-off litigation arising out of our workers’ compensation claims?”
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