Determining Initial Compensability Can Avoid Countless Workers Compensation Claim Problems
I have no idea where the idea that “the adjuster” determines compensability” came from…but it is dead wrong. The employer also has a vital rule in this process. Unfortunately many employers fail to properly evaluate the facts surrounding a worker injury from the perspective of compensability. Part of the reason is that the process itself often seems confusing. However, as you will see, the process is straightforward and is uniform in every state jurisdiction. I concede that the adjuster has the final say in most cases, but they rely completely upon information received. If all they rely upon is information from the injured employee and the treating physician, without vital input from your safety team, more often than not problems may ensue. And remember, in most state jurisdictions, one the adjuster pays $1 of compensation benefits your organization is on the claim 100%. Therefore, the Claim Coordinator, with the help of others on the claim management team, must not leave anything to chance.
While the claim adjuster will have a significant role in establishing compensability, from a CONTROL perspective the claim management team must take into account all the information it has gathered through its prompt injury response program to make its initial assessment. The Claim Coordinator should still report the incident to the claim adjuster for discussion and agreement. However, as part of the report the Claim Coordinator should submit all facts that support a denial of the injury under workers compensation law. As a brief overview, the diagram below depicts the systematic steps that should be used in determining initial workers compensation compensability.
Is the Injured Person A “Covered Employee”
Workers compensation law specifically identifies those employee groups that are covered under the act and those that are not. Always keep in mind that although these exempt employees may not be entitled to workers compensation benefits under the act, they still may sue for damages caused by the employer’s negligence. Also, there are individuals who may not be considered “covered employee’s” under certain circumstances. Chapter 8 will discuss these examples in more detail.
Did The Employee Suffer An Injury Or Illness?
This is a medical question. However, what many employers fail to realize is that just because an employee suffered an injury or illness does this not necessarily mean that it is compensable under workers compensation statute. In short, determining compensability is not the responsibility of the treating physician.
The treating physician’s job is to provide prompt, quality medical care and determine the extent of the injury or illness. During this process they naturally will interview the injured employee to determine, in the employee’s opinion, what happened to cause the injury. However, the treating physician should focus on treatment and diagnosis at this stage and communicate this information directly to the Claim Coordinator. Ideally the treating physician should be required to provide the employer with detailed information on his or her diagnosis. The employer then should initially determine the compensability of the injury based upon the facts determined by the incident investigation.
If the Claim Coordinator challenges the results of the physician’s diagnosis then he or she should provide the physician with specific information on the work being performed at the time of the injury, the facts surrounding the alleged incident, and any other reasons for questioning the claim. Because determining whether the injury is a medical question, rarely is it challenged on its face. However, as will be discussed shortly, whether the injury is work related is often contested. They also have the option of obtaining an independent medical examination.
Did The Injury Arise In The Course Of Employment?
Employees are presumed to be in the course of their employment from the time they arrive at work until they leave. As a general rule the employee’s injury is viewed as being sustained “in the course of employment” unless the employer has clear and substantial facts to the contrary. In short, this criterion is a timing issue to a large extent; i.e., was the employee at work or not. While the answer to this question may see very clear-cut, there is one area where this normally easy criterion can be quite difficult to determine.
This involves what is called a “significant deviation” from work. A “significant deviation” is one that takes the employee out of the course he or she would follow to further the employer’s business. Each state has a wealth of case law on this subject and it is recommended that it be studied before jumping to conclusions. If the employee is traveling they are presumed to be in the course of their employment from the time they leave home until they return. This presumption can often be refuted by showing that the employee made a “significant deviation” from employment. This will often entail careful investigation by the employer and could also involve the retention of a private investigator.
As a general rule, minor deviations such as a driver stopping in a coffee shop for lunch are not significant and would not take an employee out of the course of employment. However, stopping at a tavern might be a significant deviation. There have been many litigated cases involving employees who made a diversion from their business. Often, this leads to vehicle accidents or other injuries. Depending on the specific circumstances, these cases are often viewed as “significant deviation” from employment.
Did The Injury Arise Out Of Employment?
“Out of employment” means the injury or illness occurred at work and was caused or aggravated by some risk or exposure peculiar to the employment. This criterion is routinely determined based upon the facts surrounding the injury as part of the accident investigation process. Always keep in mind that an injury cannot arise out of employment unless it occurs in the course of employment. However, injuries occurring in the course of employment do not automatically arise out of the course of employment. Determining if an injury arose out of employment requires looking at the nature of the risk that resulted in the injury.
In many cases the injured employee will allege that the injury was caused while at work and arising out of a hazard associated with his or her work. In short, they will attempt to force an otherwise non-compensable injury into the workers compensation system. That is why it is essential that the employer carefully investigate each claim to fully understand the cause of the injury and the hazards associated with it.
As an example, if a worker injury arises from an employment risk, such as an unguarded machine or a slipper floor, it clearly arises out of employment. An injury related to personal risk, such as hereditary heart diseases, normally does not arise out of employment, even if it first becomes symptomatic in the course of employment. That being said, many states now regard stress-related claims to be compensable in specific cases. Therefore, it is important that the Claim Coordinator carefully review the case law on this subject before jumping to conclusions.
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