Power mongers: curbing employee abuse of workers comp and termination agreements: hitting the brakes on workers' comp costs: how to minimize claims in the long-term care setting.

Long-term care is challenged on a daily basis to maintain workers' compensation costs and handle both the claims and the corresponding personnel issues. Most states require employers to purchase an insurance policy to provide benefits for employees when they are injured during the course and scope of their employment.

Workers' compensation insurance systems, whether purchased through a third-party insurance carrier or a state-operated fund, are essentially "no fault" systems. They were created to ensure that workers receive medical treatment and monetary compensation when they are injured at work or otherwise sustain an illness resulting from their work.

The advantage to you of having workers' compensation insurance is that, generally, the employee may not initiate litigation against the nursing home for negligent acts or otherwise hold you liable in the event he or she is injured or sustains an occupational illness. There are, however, exceptions to this rule that you should know about.

Specific exceptions

For long-term care businesses that operate in more than one state, make sure you comply with the laws in the state where you conduct business and where the employees are located. In addition, facilities that have workers who travel from state to state, or those that have employees working in different states, should be sure to consult counsel about whether the coverage is acceptable in the state in which the employee is located, travels, or performs services.

In many cases, employees file a claim in the state where they are injured or where they live, even though the nursing home is located in another state, leaving you without adequate insurance.

Most of the time, employees who are injured on the job have the right to medical care for the injury, the right to monetary compensation for temporary or permanent disabilities, and the right to the lost income resulting from the injury. There are, however, steps you can take to minimize costs and manage the claim once it is filed. Thus, the ways in which you can keep your claims to a minimum and make sure you properly manage the ones you have remain consistent.

Safety first, second, and third

Preventing injuries is the most critical aspect of any workers' compensation program. Every nursing home should work with a safety consultant to make sure the workplace is as safe as possible and that preventable injuries are, in fact, prevented.

In long-term care facilities, this is particularly difficult because of the nature of the business. It's no secret that nursing home employees rift, turn, and otherwise maneuver residents who are immobile or incapacitated in another manner and, thus, often suffer back injuries. In addition, dietary workers lift heavy objects and use equipment and products that may cause cuts, burns, and falls.

Implementing proper safety procedures and providing mechanical devices to ease the physical burden on employees is essential. Although it may mean significant costs for equipment, it pays off over time if it reduces claims of back injury and other sprains and strains.

Develop and train on a compensation program

Every employer should develop a workers' compensation program detailing the procedures that employees must follow in the event of a workplace injury. Communicate the program to the entire work force, review it on a regular basis, and make sure everyone adheres to it.

Provide all employees with a packet that instructs them about what to do in the event that an incident occurs. The packet should tell them to whom to report, where to go for treatment, whether a drug test is required, and so on.

Everyone should be trained on this procedure so that when an incident occurs--no matter how slight--the claim is administered per the company's policy. In some states, you can use employees' failure to follow these procedures as a defense against a claim. Even where it's not a defense, an employee's failure to follow these procedures may be helpful evidence to question his or her credibility, when it is warranted.

Conduct prompt, thorough investigations

You already know to investigate all incidents, no matter how slight the injury. That means that immediately upon notification that an employee has sustained an injury, the responsible supervisor should promptly begin a thorough investigation (see "Can I Get a Witness").

Although it seems underhanded, employees who have sustained prior injuries often attempt to seek treatment--or their physicians attempt to seek payment for treatment--for conditions that did not result from the workplace accident. That said, it is essential to keep the claim restricted to the injury sustained by the employee during the course and scope of his or her employment. Be aware, however, that you take your employee in the condition you find him or her when hired, so you may be liable for exacerbations of a preexisting condition.

Work with a third-party administrator

Many facilities use a third-party administrator (TPA) to assist in managing and administrating their workers' compensation claims. Often, these TPAs have hundreds of claims and merely process the claims through the system.

Nursing homes should make sure one of their employees is charged with monitoring the claims and working with the TPA to make sure claims aren't merely being processed, but rather managed at every step. Many employers have a false sense of security that the TPA is doing the necessary work and that it will let you know if something needs to be done. This is not the case. You must participate in the process at each step if your desired result is to control the costs of claims.

Encourage going back to work

Managing workers' compensation claims is often complicated by other federal and state laws. The Americans With Disabilities Act, state discrimination laws, the Family and Medical Leave Act (FLMA), and state family leave laws can seriously complicate any employer's efforts to control the process when an employee is injured at work.

Generally, it is in your best interest, for purposes of workers' compensation costs, to get the employee back to work as soon as possible. In many cases, the way to do this is to allow him or her to return to work with restrictions or on "light duty." This will prevent the employee from receiving compensation through workers' compensation insurance and, consequently, keep the claim cost down so that your premium doesn't increase. Just as with an automobile insurance policy, the greater the cost of claims, the higher your premium goes.

Also keep in mind that under the FMLA, an employee with a work-related injury that also qualifies as a serious health condition cannot be required to perform light duty.

Even if the employee can be required or is willing to work light duty, the issue then arises as to how long you should or must allow the employee to work with restrictions. Employees who work in long-term care facilities often prefer the light-duty job to the job they were performing when injured. Not only does this present problems with ultimately eliminating the temporary job, but coworkers can also become resentful. As such, you'll need to control the temporary or transitional work program.

Consider family and time off

Nursing home managers also need to think about family and medical leave. In most cases, an employee's work-related injury will also qualify as a serous health condition under the FMLA. If this is the case, a leave of absence due to a work-related injury may run concurrently with the workers' compensation leave.

This is important to note because under the FMLA and some state laws an employee must be reinstated to the same or an equivalent position, as long as the leave does not exceed the designated time period. Once the family and medical leave entitlement runs out, however, the employer is generally not obligated to reinstate the employee to his or her former position.

Even when family leave runs out, you may still have obligations to the employee under the Americans With Disabilities Act or state disability laws. If the employee's medical condition qualifies as a disability, consider whether you can reasonably accommodate him or her.

You may have to consider extending a leave or determine whether the employee can return to work with accommodations. Courts have generally concluded that a leave of absence for an indeterminate period of time is not something an employer must accommodate, but a short extension might be considered a reasonable accommodation.

To make matters more complicated, in some states, employers are prohibited from terminating an employee for exceeding a leave of absence policy if the employee is absent solely because of a work-related injury.

The prevailing view in most states, however, is that workers' compensation laws are not designed to provide an injured worker with job security or guaranteed employment during a work-related disability.

Thus, employees suffering from work-related injuries can be terminated in most states for exceeding attendance and leave policies, as long as the employer complies with federal and state leave and disability laws and is not discharging the employee in retaliation for having filed a claim.

CAN I GET A WITNESS?

When an injury incident occurs, the initial investigation is critical, and you should treat it as seriously as you would any other workplace incident. The investigator should meet with the employee as soon as is reasonably possible after the event and get a full and complete description of what happened, including the following:

* The names of witnesses

* The time the incident occurred

* The location of the incident

* A detailed description of the body parts injured

The investigator should also interview any witnesses or individuals to whom the incident was reported. The investigator should obtain detailed information about what the witness saw or heard and what the employee said about his or her injuries.

--Patricia F. Weisberg

CHECKLIST: HOW TO REDUCE AND MANAGE WORKERS' COMPENSATION CLAIMS

When--and before--an incident happens, do all of the following:

[check] Implement safety procedures

[check] Conduct prompt and thorough investigations

[check] Keep track of employees in the workers' compensation system

[check] Aggressively review your claims and make sure the only employees receiving benefits are those who are legitimately entitled to them

[check] Work closely with your third-party administrator to make sure there is coordination with, and active oversight by, your human resources department

[check] Make sure you are aware of anything submitted in employees' workers' compensation files and participate in and stay apprised of the proceedings

[check] Do not terminate the employment of workers who are absent from or unable to return to their jobs without accommodation due to work-related injuries unless you have carefully reviewed the entire situation or sought legal counsel--Patricia F. Weisberg

Patricia F. Weisberg, Esq., is a partner with the Cleveland law firm of Walter & Haverfield, LLC. She focuses her practice on representing all types of employers in regard to new and existing laws regulating the workplace. Contact her at [e-mail].