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November 6, 2017 3:27pm

SPONSORED POST: Louisville Workers’ Compensation: Common Misconceptions

*Note: This is a sponsored post submitted by GLI Investor Morgan & Morgan, P.A. The views in this post do not necessarily represent those of GLI and its 1500+ Investors*

Most employers do their best to maintain safe and injury-free workplaces, and many have a working familiarity with the workers’ compensation process. Nevertheless, workplace injuries happen and not all employers have an in-depth knowledge of the laws governing workers’ compensation claims in the Commonwealth.

To counter the myths and misunderstandings, we are going to address some common misconceptions Louisville employers have about workers’ comp. Clearing up the confusion helps both employers and employees, ideally fostering a situation in which all applicable Kentucky laws are understood and followed.

Notice Requirement for Reporting an Injury

An employee’s notification of a work injury is a key part of the workers’ compensation claim process. Many employers have policies regarding communication — often requiring immediate notice of any work injury, no matter how small.

Such policies help ensure that injured workers receive immediate medical attention, helping mitigate lost time and prevent the worsening of the injury due to delayed treatment. However, the notice policy shouldn’t be relied on exclusively when making a compensation decision.

The Kentucky Workers’ Compensation Act establishes its own notice requirement: an employee must give an employer notice of a work injury “as soon as practicable after the happening thereof.” This is important, because sometimes what initially appears to be a temporary sprain or pulled muscle later turns out to be a serious injury when it does not resolve within a few days as expected. As a result, it may take some time before the injured worker realizes that the injury is more than a temporary setback.

“It’s in the employer’s best interest, quite often, to simply notify their workers’ comp carrier as soon as an injury is reported to them by an employee, so that an investigation can be performed by the claims adjuster,” says Morgan & Morgan attorney James Martin.  “Being proactive can prevent numerous problems later on.”

What a “Reasonable Investigation” Means

When an employee does give notice of a workplace injury, there will naturally be an investigation. For employers, there are often one of three reactions: (1) fire the employee; (2) panic and try to hide or cover up the injury; or (3) call their workers’ compensation carrier right away. Can you guess which one is the only appropriate response in this circumstance? (Yes, it’s number 3.)

Kentucky’s workers’ compensation law outlines a carrier’s obligations when it comes to investigations, so ostensibly an employer can have faith in the process — even if they’re suspicious of a claim.

Once a workers’ comp carrier is notified, it has a duty to investigate the claim diligently for facts warranting the extension or denial of benefits. This allows the carrier to identify and accept legitimate claims, and to weed out and properly deny claims that lack merit.

However, the law doesn’t mandate a deadline for investigations. They can range from one day where there is a clearly identifiable cause of injury (e.g. a motor vehicle accident or a witnessed fall) to a more prolonged period when the cause of injury is not quite as clear (for instance, a cumulative trauma type injury).

If an employer has a complaint about the investigation or questions the carrier’s failure to timely notify an employee of a decision, the employer can file a complaint about unfair claim settlement practices with the Commissioner of the Kentucky Department of Workers’ Claims.

The Right of an Injured Worker to Select a Treating Physician

Is it OK for an employer to have a default urgent care clinic or occupational medicine clinic to which they automatically refer all non-emergent injured workers for initial care? Sure. Establishing a relationship with such a facility is an excellent way to ensure that injured workers receive treatment quickly and efficiently.

The problem occurs when this referral becomes mandatory, instead of recommended. Mandating a “company doctor” violates injured workers’ rights under the Kentucky Workers’ Compensation Act. Not only is it illegal to require a worker to see a “company doctor,” but it could be dangerous.

For example, in one recent case an employee tripped over a hose and accidentally discharged a large framing nail into his right thigh with a high-powered pneumatic nail gun. The employer refused pleas to call an ambulance, instead making the employee fill out an injury report while in excruciating pain. Even worse, they made him wait until the end of the work day, several hours later, before they put him in a work truck and drove him to their default urgent care clinic.

The employer also considered pulling out the nail, which doctors later said would have killed him. Eventually, after waiting in the clinic for another hour, the worker was finally sent to the ER via ambulance. EMTs were furious the employee hadn’t been sent to the hospital right away, saying he could have died as a result of the delay if the nail had been positioned differently.

While this particular worker ultimately received treatment, he endured hours of horrible pain and could easily have died as a result of the employer’s negligence. Obviously such misconduct can expose an employer to enormous liability — it’s best to let the employee use his or her own physician for initial and follow-up treatment.

What Do “Off-Work” Notes and Restrictions Really Mean?

When a worker is injured on the job, they may receive an “off-work” note or work restrictions notice from his or her treating physician. It can sometimes be difficult for the employer and the workers’ compensation carrier to respond properly to such doctor’s notes.

In general, doctor’s notes factor into whether an employee is entitled to temporary total disability benefits. If an employee misses at least one week of work as a result of a work injury, she may be entitled to TTD benefits while her doctor keeps her off work, according to Kentucky law.

A more difficult situation is when a physician gives an injured person work restrictions. Although it’s tricky, it’s usually best to take a common sense approach. If the employer can accommodate the restrictions, and the injured worker is able to return to his regular job under those restrictions, then he is no longer entitled to TTD benefits. So long as accommodations are made or a modified-duty job is available, then a slow transition back to work is typically a good idea if the treating doctor agrees.

One thing employers shouldn’t do is make up a light-duty position in order to avoid TTD liability. The injured worker cannot be placed at a table staring at a clock all day — this happens more than you think. A modified-duty position must be a legitimate existing job within the injured worker’s restrictions. With everyone working together and communicating, it is usually possible – and preferable for all parties – for an injured employee to return to work.

Workers’ Comp Isn’t a Windfall

A final thing to clear up is that workers’ comp benefits aren’t a “get rich quick” scheme for injured employees. The reality is that an injured worker will never receive as much money from a claim as they would have from working at their job.

The legislature has even provided specific caps on an injured worker’s ultimate recovery. In fact, in 2017 even if an employee was permanently and totally disabled as a result of a workplace injury, the maximum amount of recovery was $43,422.08 per year. Overall, there are strict calculations used to determine the value of a benefit and the end result isn’t the Powerball.

The Key Takeaway: Respect and Empathy

Instead of treating workers’ compensation claims with suspicion and distrust, employers should foster an atmosphere of respect, cooperation, and empathy. After all, both the employer and the injured worker share the same goal: helping the injured worker recover and make a successful transition back to gainful employment. Respect and empathy will also go long way toward keeping the parties from getting embroiled in what could be time-consuming litigation. If an employer doesn’t follow the rules, an employee has a right to retain the services of a workers’ compensation attorney.