Workers Comp Program Post-Injury Best Practices
The success of your workers compensation program is dependent on a lot of factors. The two biggest being how you prevent injuries and how you respond to them once they happen. No matter how much safety training and protective equipment you invest in, there are bound to be injuries. This article focuses on best practices following those injuries. The goal will be to reduce the severity of those injuries in terms of days out of work and total cost. We will cover post-injury reporting, the use of functional capacity and fitness for duty exams, and implementing a modified duty and return-to-work program. BONUS: download the full best practices guide.
Document, document, document! Workers’ Compensation injuries and ‘near misses’ happen all the time. The first step in an effective workers’ compensation claim is documenting the circumstances that gave rise to the incident/injury. There are a lot of benefits to documenting, even if it does mean another report to file, but they are well worth it.
Benefits of Worker’s Compensation Injury & Incident Reports
- Collects facts about the incident immediately after it occurred – preserves information to help recall
- Creates a record of the event – date, time, location, witnesses present, etc.
- Begins the claims reporting and rehabilitation process (when needed) by providing as much relevant information to the claims handlers as possible
- Identifies internal factors that may need to be addressed in the future to avoid a repeat claim
- May identify outside factors that may have contributed to the incident/injury that may not be related to the employee’s job duties
- Provides some protection to the employer in the event medical attention is refused but then claimed to be needed in the future
- Establishes an organizational culture surrounding job injuries and claims with the understanding that they will be documented and investigated which will discourage fraudulent claims from being filed
- Require that the report be completed by the employee and reviewed by a supervisor as soon after the incident as is reasonably possible
- In certain states, a separate employee accident form and supervisor’s report form may be needed (especially if not much discovery is allowed following traumatic claims such as in New Jersey)
- Require that both the employee and supervisor sign off
- Use a template report but tailor the questions to your specific operation/organization
- Include your attorney, risk management professional, workers comp doctor, and/or claims administrator in the construction of the reporting form – their input can be crucial and may result in issues you wouldn’t think to address in the form
- Question any/all witnesses as soon after the incident as possible and have them provide a short, written account (a 1 of 2 paragraph email usually satisfies this requirement)
- Require a sign-off by the employee if no medical attention is immediately sought after the incident – this can protect the employer from paying for an injury that might happen away from work and after the incident because the employee prefers the injury to be paid by the employer under workers’ compensation rather than their personal health insurance
- Include a couple questions related to the circumstances that led up to the incident and what actions could have been taken or should be taken in the future to avoid a repeat
- Think about including questions that relate to the employee’s activities outside of work to identify if there may be a pre-existing injury related to sporting activities, a second job, or extracurricular avocations (this will require attorney review as some states have strict laws about what information can and can’t be requested from an employee).
- Nowhere on the form should there be any statements that would allow the employee to assume there is coverage for the injury (or lead the supervisor to inadvertently document insurance coverage for the injury)
Further reading - two articles from the law firm of Capehart Scatchard highlight many of these points. 1) The Critical Importance of a Thorough Supervisor’s Report Form in Workers’ Compensation, 2) How Employers Can Reduce Permanency Awards in New Jersey at No Cost.
Fitness for Duty & Functional Capacity Exams
Certain workers’ compensation injuries require a higher level of attention and precaution before allowing the injured worker back to full duty. The circumstances that might contribute to this come from many different places; the workers’ history, the nature of the work to be done, how the rehabilitation is progressing, what level of permanent disability may be present after rehabilitation has completed, etc. That is where Fitness for Duty (FFD) and Functional Capacity Exams (FCE) come in.
What are Fitness for Duty and Functional Capacity Exams?
- Fitness for duty exams are completed by an occupational doctor that compares the employee’s rehabilitation records with the duties of the job they might be released to return to – in many cases the employee is completely capable of completing their job duties following rehabilitation but, in a few cases, that might not be possible based on a permanent level of disability that remains
- Functional Capacity Exams are completed by a kinematic lab using computerized measurement of the employee’s movement and physical behavior while performing exercises similar to the work they would need to complete in their fully duty role – these tests can go farther from a FFD exam because they can identify employees that are “faking injuries” or “manufacturing disabilities” as well as evaluating them against their abilities to return to full duty
Benefits of these Exams
- Provide reasonable certainty that a returning worker will be able to perform their full job duties without a higher risk for additional injury
- Identify employees that may be “manufacturing” symptoms for the purposes of staying out of work longer or getting a higher disability payout as the result of a litigated claim
- Reset the physical baseline that was initially done during a pre-employment physical
- Memorialize the basis for not bringing an injured worker back to employment following their injury due to an inability to do fulfill their job duties
- Further breed a work culture of accountability
- Help avoid a subsequent injury suffered by a worker that was not ready to return to full duty or couldn’t complete the duties safely due to a permanent level of disability
- Create a guideline or policy that explains how and when these exams are to be used by HR or administrative personnel
- Be consistent in your use of these exams to avoid allegations of discrimination, favoritism, etc.
- Pinpoint the timing of these exams – given too early and they are just wasted money because a worker hasn’t completed their rehabilitation, given too late and the worker may already have been accepted back to full duty and a subsequent release from work might result in a wrongful termination lawsuit
- Use the information obtained from these exams as part of the decision-making process and not used as an absolute determination of the final decisions made – you must also look at alternative job placements that might be available, whether similar exam results have been poor predictors of an employee’s ability to perform their job, etc.
- Utilize a testing facility with a strong track record of accuracy and the ability to draw definitive conclusions from the exam findings – wishy washy conclusions at the end of an examination report will provide very poor support or guidance when making an employment or return-to-work decision
- Address any change in work status with your employment attorney prior to taking any final actions
Modified Duty & Return-to-Work Programs
Many injured employees can perform a portion of their normal job duties or fill another role until they’re fully healed. A 2010 study by the Rand Corporation found that having a workers comp return to work program in place at the time of injury is associated with a 3-4 week reduction in the median injury duration, and about a 15 week reduction in the average injury duration. That correlates to a huge cost savings.
Benefits of a Return-to-Work or Modified Duty Program
- Shorter time that employees are out of work (on average) and quicker return to full duty
- Reinforces a work culture that is committed to getting employees back to work as soon as possible while emphasizing a commitment to worker safety
- Breeds accountability amongst the workforce and wards off decreases in morale based on prolonged absences – workers that need to pick up the slack for a co-worker they think might be “milking” an out of work injury can decrease overall productivity
- Protects against depression-like symptoms – when workers are out of work and sedentary for a prolonged period, they can begin to exhibit depression which can prolong the recovery process or lead to worse side effects such as opioid abuse
- Prevents deconditioning where a worker’s skills suffer from lack of activity which reduces their ability to return to full duty
- Saves money by reducing overtime costs as well as future workers comp insurance premiums – the shorter a worker is away from work, the lower the amount of income replacement the insurer needs to pay (which reduces the overall cost of the claim that other insurers see when they quote your insurance in the future)
- Programs need to be clearly communicated to the workforce via your employee manual or a separate policy that they receive (start with a template policy and edit it to suit your specific organizational needs/goals)
- Have a labor attorney review your program to make sure it doesn’t violate collective bargaining contracts, the ADA, or other employment legislation
- Create a modified duty job bank that includes a variety of jobs that can be assigned to suit the physical restrictions of the returning workers (update the job bank yearly to eliminate certain jobs that might not be available any longer and add new jobs that have become needed)
- Make sure that supervisors are aware that they are an integral part of these programs – they will need to keep tabs on how the worker is doing, make sure they aren’t becoming acclimated to the modified job position (meaning they prefer the lower level of responsibility/work), check in with the workers to make sure their rehabilitation is still on track, and hold workers accountable to perform the modified roles with the same level of achievement/quality
- Limit Return-to-Work durations to 6 months to reduce the possibility that the new position becomes the “new normal” for the employee
- Track the results of the program and make sure that it is achieving the desired goals – if not, the program may need to be updated or completely overhauled
While you can’t avoid worker injuries completely, you can put the programs and processes in place to address them efficiently when they happen. These best practices will help you reduce the time your injured employees spend out of work, the overall cost of workman's comp injuries, and the stress that rehabilitation causes for your workforce. On a higher level, these best practices will reinforce an organization-wide commitment to safety as well as employee wellness and health.
Implementing these best practices can be a daunting task and should be done in conjunction with professional support. Treadstone Risk Management is well-versed in implementing these programs as well as a host of other Risk Management Services. We would love to help you.