Checklist of Possible Employer Concerns
Kegler Brown Labor + Employee Relations Newsletter November 1, 2009
Updating Ohio employers on possible concerns that employers should consider when making decisions on how to handle various workers’ compensation matters.
Allowance -- Facts to consider before accepting a new workers' comp claim
- Claimant is a new employee or accident occurs near end of probationary period
- Accident is reported late (several days or more post-accident)
- Accident is not reported until after claimant has been disciplined, discipline has been threatened or is sure to follow
- Claimant has poor attendance record or frequent disciplinary problems; job performance declined just prior to injury
- Claimant is bitter and/or resentful toward the employer
- Claimant was recently terminated for violating an employment policy
- Date, time and place of accident "unknown;" specific details of injury are general or not recalled
- Inconsistencies between descriptions of work incident in accident report, medical reports and other statements and documents
- Cross-outs, erasures and "white-outs" on medical, incident/accident and/or other reports and documents
- Injury reported Monday morning, after the weekend or after a plant shutdown; accident occurred immediately after claimant's scheduled days off
- Minor incident becomes major injury
- Physical injury does not match incident or is inconsistent with nature of work being performed
- Claimant refuses diagnostic procedures to confirm injury
- Multiple parts of body injured (especially "entire back")
- No witnesses to accident or witness statements are inconsistent
- Claimant cannot be reached; is never home to answer the phone or is "sleeping and can't be disturbed"
- Claimant refuses to cooperate by providing a signed medical release and/or list of doctors with whom he/she previously treated
- Claimant has moved out of the state or country, or uses a mailing address other than his/her permanent residence
- Injury coincides with layoffs, end of seasonal work, or plant closing (dollar amount of workers' compensation benefits is generally higher for an injured worker than unemployment benefits); or injured worker is in line for "early retirement" (supplemental pension)
- Claimant terminates own employment just prior to or just after injury
- History of similar problems; outside activities that could cause injury (i.e. sports, hobbies, etc.)
- Claimant is known to engage in secondary or self-employment
- Claimant was involved in a non-work related accident prior to injury (for example, a motor vehicle accident)
- Claimant's wages were recently subject to garnishment or liens
- Claimant does not have any other medical coverage
- Claimant made major purchases just prior to injury, or recently purchased a private disability policy
- Tips from co-workers
- Immediate or nearly immediate representation by an attorney after injury
- Spouse and/or other family members are "on workers' comp"
- Claim and claimant have very little connection to Ohio
- Same attorney/doctor combination have previously handled related claims
- Claimant recently settled another workers' comp claim against a prior employer
- Claimant fails a drug screen or refuses to undergo drug testing when there is reasonable suspicion of use
- Claimant acts injured while knowingly being observed but acts normally otherwise
- Claimant complains of extreme pain but doctors cannot find anything wrong
- Claimant, while out on the road, deviated from the employment and was on a personal errand when injured
- Claimant was engaged in horseplay when injured
- Injuries appear to be self-inflicted
- Claimant was not at work or in an area owned or controlled by the employer when injured
- Claimant elected workers' compensation coverage in another state
- Claimant's substantially aggravated medical condition has returned to pre-injury status
- Claimant's medical condition is primarily caused by "natural deterioration"
Wage Loss -- Facts to consider before claimant is granted wage loss compensation
- Claimant's restrictions do not prevent performance of the "former position of employment"
- Claimant misrepresents the nature and extent of restrictions to prospective employers
- Claimant requests non-working wage loss but has not done much to find other work
- Claimant has not sought work with the "employer of record"
- Claimant has not registered with the Ohio Department of Job and Family Services
- Claimant obtains updated restrictions from doctor even though no new exam performed
- Claimant refuses a job offer, fails to follow up on good leads for other work or voluntarily limits income
- Claimant finds another job, requests working wage loss but does not continue to look for other suitable work that would eliminate the wage loss
Temporary Total -- Facts to consider before claimant is granted TTD compensation
- Employer is able to accommodate claimant, offer transitional (light duty) work within restrictions established by claimant's doctor (make written offer)
- Claimant's condition has become permanent (maximum medical improvement)
- Claimant is working at a second job (fraud?)
- Claimant is engaged in activities that are inconsistent with a claimed inability to do his/her regular job
- Injured worker changes physicians when a release to return to work is issued
- Claimant repeatedly postpones BWC 90 day exams
- Claimant is incarcerated
- Claimant complains of extreme pain but doctors cannot find anything wrong
- Claimant delays/postpones treatment for one medical condition while he/she is receiving TT for a different condition (e.g., does not see doctor for allowed psych condition while off work after back surgery)
- Claimant acts injured while knowingly being observed but acts normally otherwise
Permanent Total Disability -- Facts to consider before claimant is granted PTD compensation
- Claimant keeps filing PTD applications even after having been denied compensation by the Industrial Commission
- Claimant may be seeking PTD compensation simply for growing old
- Claimant refuses offers of vocational rehabilitation from the BWC or from the employer
- Claimant has failed to exhaust all efforts at rehabilitation, retraining and/or re-education before seeking PTD compensation
- Claimant retired from the workforce for reasons entirely unrelated to the work injury
- Claimant complains of extreme pain but doctors cannot find anything wrong
- Claimant acts injured while knowingly being observed but acts normally otherwise
Other general concerns to consider in connection with pending claims
- Claimant is dead (claim abates)
- Deceased claimant's widow/widower has re-married
- Claimant attempts to exclude weeks from AWW/FWW calculation where unemployment was not beyond the claimant's control
- Claim is dead
- Claimant has suffered a new, serious incident/injury to the same body part(s) previously injured
- Claimant's pre-existing medical condition(s) contributed to injury and/or delayed recovery from it (handicap reimbursement)