Managing workers' compensation claims requires employers to coordinate workers' compensation policies and practices with other statutes that affect the employer's obligations to the injured worker. Employers must understand the legal context in which workers' compensation claims arise, consider the legal and practical options available, and enact policies designed to minimize and control workers' compensation injuries.
The Context Of Workers' Compensation Claims
The Michigan Workers' Disability Compensation Act is one of four major statutes that impact injured workers. The others are the Family and Medical Leave Act, the Americans with Disabilities Act, and The Persons with Disabilities Civil Rights Act ("PDCRA"), formerly known as the Michigan's Handicapper's Civil Rights Act.
The various laws apply at different times to injured employees. An injured worker is entitled to workers' compensation benefits if he or she is "disabled" due to a work-related injury. The Michigan Supreme Court recently clarified that "disabled" under the workers' compensation statute means that the employee cannot perform his or her specific job, rejecting arguments that a worker should be unable to perform a wider range of jobs before being considered "disabled."
The FMLA applies to an otherwise eligible employee if the employee has a "serious health condition." Most often a workers' compensation injury which legitimately keeps an employee out of work also qualifies as a "serious health condition" under the FMLA. The ADA and the PDCRA apply to employees or to applicants who are "disabled" under the definitions in the respective statutes. The definition of "disabled" under the workers' compensation statute is different than under the disability discrimination laws, and an employee who is "disabled" under the workers' compensation laws is not always "disabled" or "handicapped" under the disability discrimination laws.
Thus, an injured employee claiming workers' compensation benefits might also be subject to the FMLA or the disability discrimination laws, or both. The employer must make this threshold determination in order to understand its rights and obligations.
What To Do When An Employee Reports An Injury Or Files A Claim
There are practical steps an employer can undertake to gain control over a workers' compensation claim immediately after learning of an alleged injury. First, the employee should immediately be sent for medical treatment. This provides an opportunity for a health care provider to record the employee's version of events directly after the occurrence. These records often contain admissions by the employee helpful to the employer. Employers should send the employee to competent, trustworthy doctors, and resist the urge to send the employee to a physician with a reputation as a "defendant's doctor." Workers' compensation magistrates who decide disputed claims know doctors' reputations, and give less credence to the opinions of doctors who have exhibited bias on either side. Also, employers should not send the employee to an emergency room unless necessary because emergency room reports tend to be less detailed and less specific about the injury and about the employee's ability to work, and therefore less useful for workers' compensation purposes.
Second, the employer should conduct an immediate, thorough investigation of the alleged injury to collect as much information as possible about how the incident occurred. In the workers' compensation context, this is the employer's only opportunity to get any "discovery" from the claimant. At this stage, the employer can pin down the employee's and any witnesses' versions of the incident in writing right at the time of the injury. This contemporaneous account can be very valuable if a factual dispute arises regarding the incident. A comprehensive investigation provides the best chance for employers to make an educated decision as to the believability of a claim and to smoke out a fraudulent claim at an early stage. Employers should teach their supervisors (or whoever will be conducting the investigation) that a high degree of detail is critical (i.e., "the employee slipped and fell" is not a sufficient description of the incident).
Analyze Employee Coverage Under Different Statutes
Once an employer compiles the relevant medical and investigative materials regarding an alleged injury, a decision must be made whether to pay workers' compensation benefits (a decision often made with the workers' compensation carrier or the third party administrator), and whether the alleged injury is covered by the FMLA or the disability discrimination statutes.
A determination must be made whether the workers' compensation injury qualifies as a "serious health condition" as defined under the FMLA. Again, most injuries which result in lost time from work are likely to be "serious health conditions." If so, the employee is entitled to the rights afforded by the FMLA, such as the continuation of health care benefits and job restoration rights. In such a case, the employer should count the time the employee misses from work due to the work-related injury against the employee's 12-week FMLA leave entitlement. As with all FMLA leaves, in order to count the time off work against the employee, the appropriate notice must be sent to the employee. (The Department of Labor has prepared a form that can be filled in by employers and sent to employees.)
There is a significant benefit to counting the workers' compensation leave as FMLA leave. Once the employee's 12-week leave period is used up, the employee's FMLA rights are exhausted. For example, the FMLA provides that an employee has a right to be returned to his or her old or equivalent, position if the serious health condition ends during the 12-week leave entitlement. If the employer sends the FMLA notice at the time of injury and the employee is off work for more than 12 weeks, the right to job restoration ends. If the employer does not send out the FMLA notice and fails to count the time against the employee, the employee may still be eligible for FMLA benefits, including job restoration, even if the employee has been off more than twelve weeks.
The employer must also determine whether the employee's work-related injury constitutes a "disability" under the disability discrimination laws, considering the nature and extent of the injury. With workers' compensation injuries, the condition is often not serious or long-term enough to meet the statutory definitions. This is important because if the employee is "disabled" the employer must provide reasonable accommodation of the employee's injury. If there is a duty to accommodate, employers violate the disability discrimination laws by requiring that an employee be released to work without restrictions before considering a job offer to the employee.
Returning the Employee to Work
An aggressive return to work program is one of the employer's best tools for managing workers' compensation. An employee who refuses a reasonable return to work offer forfeits workers' compensation wage loss benefits. An employer who identifies an appropriate job an employee can perform, and makes a specific job offer to the employee, leaves the employee with two choices: (1) return to work and perform the job offered, or (2) refuse to return to work and forfeit wage loss benefits.
An effective return to work program can facilitate the employee's reincorporation into the work force, or, with employees who refuse return to work offers, provide a legal defense to a claim and expose potential malingerers. Any return to work program must be carefully crafted because such programs may implicate the disability discrimination laws. For example, current law allows employers to give preference to workers with work-related injuries for light duty work. To take advantage of that opportunity, however, the light duty return to work policy must be carefully constructed so that employees injured off duty do not have a claim for disability discrimination. Because of their complexity, these programs should be devised with the assistance of the workers' compensation carrier and/or counsel.
Perform a Workers' Compensation Audit
This article provides examples of how employers can effectively and aggressively manage workers' compensation claims, and some of the pitfalls which employers may encounter along the way. Employers should conduct audits of their workers' compensation practices and policies to see whether these or other case management measures should be instituted, and to ensure that those practices and policies comply with the array of statutes implicated by workers' compensation injuries.