Kaarin S. Nelson is an attorney at Halunen & Associates. She represents employees facing workers’ compensation retaliation and other employment related issues. Below, she discusses how employees can face scrutiny after filing a claim.

You’re a good employee and you work hard at your job. You go in everyday and tuck yourself under a customer’s car, drive to a client’s office or hospital, or climb the ladder to a customer’s roof. One day, a day that otherwise starts out like all the others, you injure yourself while you are at work.  This injury could be a minor slip and fall, or a more serious accident that requires surgery and possibly years of rehabilitation. You go to the doctor, you miss some work, and you may have some work restrictions. As is your right, you apply for workers’ compensation.

Sometime after you apply for work comp, your employer starts treating you differently. It might be as elusive as making you feel less valuable than other co-workers. Possibly your employer becomes critical of your work in ways that didn’t happen before your request for workers’ compensation, amounting to some form of performance improvement plan. Or maybe it is as bad as humiliating comments about your value as an employee (I have heard comments as shocking as “we should take you out back and shoot you” and “if you hadn’t applied for workers’ compensation none of this would have happened”). This humiliating treatment may lead to a demotion, termination, or some other form of adversity.

If you are being treated differently after you applied for workers compensation, you may be experiencing retaliation because of that claim, and the law protects you from that.  There are steps you can take to make sure this law works for you.  You can call an attorney who works with employees experiencing retaliation because of a workers compensation claim. You can also make a report to your employer laying out your concerns of retaliation. This report should protect you against further retaliation, or, at the very least, it may strengthen your legal claim if your employer turns a blind eye to your report.

Recovering from any injury can be stressful and daunting. Having work restrictions can be scary and may force you to address concerns about your future earning potential. Your doctor will probably tell you to focus on your recovery, and you should, but you might also have viable legal recourse that you should be aware of and could help protect you and your family.

Insurance Business of America 

Here are the 10 “red flags” according to Insurance Business of America. Mike’s response to each item is below the italicized description.

1. Monday morning reports – The alleged injury occurs first thing on Monday morning, or the injury occurs late on Friday afternoon but is not reported until Monday.

Wow. This really sets the tone for the article: nonsensical and cynical. The article doesn’t begin to explain why a Monday morning injury is suspicious – probably because they can’t. As far as the implication that a Friday afternoon injury not reported until Monday is suspicious or unusual, that too is just plain cynical. There are all kinds of common sense reasons an injury isn’t reported immediately.

2. Employment change – The reported accident occurs immediately before or after a strike, job termination, layoff, end of a big project, or at the conclusion of seasonal work.

Before OR after ANY of those events? Could the author be any less specific? In today’s economy, people have employment changes all the time. If employers and insurers are going to be suspicious of every person before and after a job change, there won’t be anyone left to trust!

3. Suspicious providers – An employee’s medical providers or legal consultants have a history of handling suspicious claims, or the same doctors and lawyers are used by groups of claimants.

This is a nice piece of circular logic:  How do you know if there is a suspicious claim? If they go to a suspicious doctor. How do you know if it is a suspicious doctor? If they handle suspicious claims, of course. Rinse and repeat.

4. No witnesses – There are no witnesses to the accident and the employee’s own description does not logically support the cause of the injury.

I don’t know why the focus here is on witnesses. People get legitimately hurt at work without witnesses often. Think about your own job. Is someone watching you all the time? Just because no one witnesses a work injury doesn’t mean the injured person is committing fraud. The second part of this “red flag” would make more sense: if the employee’s account of what happened just doesn’t sound right, it’s probably a good reason for a second look.

5. Conflicting descriptions – The employee’s description of the accident conflicts with the medical history or First Report of Injury.

This might seem like a good way to sniff out fraud, but I think it is a red herring. Medical histories are complicated. Medical records are tough to read. Unless the employer happens to be a hospital, it is probably best to leave the diagnosis and prognosis to the doctors.

6. History of claims – The claimant has a history of a number of suspicious or litigated claims.

Again, self-serving and circular. If the employer uses this list to determine a claim is suspicious, then almost EVERY claim would be suspicious. At the end of the day, what they are saying here is: If the employee has had a previous work injury, then they are suspicious.

7. Treatment is refused – The claimant refuses a diagnostic procedure to confirm the nature or extent of an injury.

This is pure fantasy. Employees don’t refuse diagnostic procedures. They just don’t. The only people who refuse diagnostic procedures in a work comp setting are insurance companies who don’t want to pay for them.

8. Late reporting – The employee delays reporting the claim without a reasonable explanation.

The key word here is “reasonable”. Late notice by itself doesn’t make an injury suspicious. As the link we provided above explains, there are a lot of good reasons people don’t report their work injury right away – they’re afraid of losing their job, they don’t realize that the injury falls under work comp, they think the injury might resolve on its own, etc.

9. Claimant is hard to reach – The allegedly disabled claimant is hard to reach at home.

This one is too dumb to comment on.

10. History of Changes – The claimant has a history of frequently changing physicians, changing addresses and numerous past employment changes. Experience shows that when two or more of these factors are present in a workers’ compensation claim, there is a chance the claim may be fraudulent. Remember though, these are simply indicators. Many perfectly legitimate claims are filed on Mondays—and some accidents have no witnesses.

This convenient catch-all really encourages employer paranoia, and should also trouble any employee who has ever changed doctors, jobs or addresses. Two out of three and you make their list. At least the author acknowledges that these are only “indicators” and seems to recognize that there is such a thing as a legitimate claim.

Ben Heimerl Chimes In

As Mike points out, each “Red Flag” raised by this article could have several perfectly reasonable explanations. Unfortunately, insurance companies are training their employees to focus in on one, negative, remote possibility.

Fraud is a serious accusation and should be taken as such. In my experience it is extremely rare. In fact, we’ve never had a client accused of workers compensation fraud. Think about it – in order for someone to commit workers’ compensation insurance fraud they would have to convince their doctor, their employer, their case manager, perhaps a physical therapist, an attorney, and eventually even a judge that they are injured and that the injury arose at work. Or, alternatively, all those people would have to be in on the con. Then, while they are waiting for the big pay day (a whopping 66 percent of what they would have made had they kept working), they will have to fight the insurance company, go months without a paycheck, incur massive debt due to medical bills, ruin their credit score, and possibly get evicted or divorced from the stress of no income. If such an individual was willing to endure all of that, he or she is probably smart enough to have already figured out not to report his injury first thing Monday morning.

All this article is doing is making it more likely that honest injured workers won’t get the benefits they deserve.

Related source: Insurance Business of America

Am I Covered?

Workers’ compensation is viewed as a no-fault system, meaning that unless you intentionally cause harm to yourself, you will likely be covered at work or at a work-related event.

The general question for workers’ compensation claims is whether the employee was injured “within the course and scope of employment.”  Factors that may substantiate an employee’s claim include:

• The employer expects or requires the employee to attend the event.
• Employees are paid to participate in the event.
• The incident took place on employer property, or on property for which the employer failed to take necessary safety precautions.
• The employer benefits from the event.

Workers’ compensation claims stemming from a work-related party are often more complicated than claims that are a direct result of on-the-job activities, so it’s important to contact an experienced workers’ compensation attorney if you are injured at a work party.

Steps to Avoid Work Party Injuries

Below are some steps that both employee and employer can take to make holiday work parties safer for all involved.

• Have the party during the day – People are less likely to drink heavily if the party is held during the day or as part of an extended lunch.
• Limit alcohol consumption – Consider handing our drink tokens or limiting yourself to one or two drinks.
• Hold yourself to appropriate workplace conduct at your work party – Although the atmosphere will be more lighthearted and relaxed, remember you’re still at a WORK party.  If you wouldn’t jump up on a table at work, don’t do it at the work party.
• Plan ahead – Whether you plan ahead by arranging a designated driver or by calling a cab, make sure you and other employees get home safely.
• Avoid dangerous activities – This may sound obvious, but avoid dangerous tasks like lighting fireworks or popping champagne bottles in a crowded area.

There are countless possible reasons why the insurance company may decide to stop paying you. If you feel they have unjustly cut you off, what you do next is extremely important. Here are some tips on what to do next:

• Contact an attorney. This should be the first thing you do. An attorney is your best chance of getting your benefits reinstated quickly.
• Request an Administrative Conference by calling the number on the NOID. It is important that you request an Admin Conference within 12 days of the date the NOID was served. You can find the service date of the NOID on the second page in the bottom right hand corner. If you request an Admin Conference within 12 days you will be granted an audience with a judge within two to four weeks.
  • If you do not request a conference within the 12 days you will have no choice but to file an Objection to Discontinuance. An Objection to Discontinuance can take up to 60 days before you are able to get in front of a judge, another 30 days for a judge to render a decision, and another 14 days before you start getting paid again.

Obviously, the quicker you can get in front of a judge the quicker you can start getting paid again. These Admin Conferences are only Band-Aids and are appealable by either side. Even if you are able to reinstate your benefits the fight for your benefits has just begun.

If an employee suffers a work injury, but can still work as a result (under work restrictions), most Minnesota employers that can accommodate the employee to continue working with those restrictions only allow employees to work up to 40 hours per week on light duty. This caps the employee’s wage at 40 hours per week, rather than the 40-plus-overtime hours they may have been earning before the injury.

As a result, the employee will often suffer wage loss if he or she consequently works that light duty job. This is because they are no longer able to work those overtime hours that help them get by, and it is that “overtime” wage loss that often gets overlooked. Whether intentional or not, insurers often do not pay those wage loss benefits to injured workers who are able to work 40 hours per week. However, if the overtime employee is earning less wages in working (capped at 40 hours per week), they are still entitled to wage loss benefits.

A worker is entitled to wage loss benefits of 2/3 the difference between their average weekly wage (AWW) prior to the accident and their weekly earnings after the accident. AWW does not depend on just what the worker earns per hour, but is rather an average of earnings grossed per week prior to the accident.

Therefore, if you suffer a work injury and you were a regular overtime employee before the accident, be aware that you may be entitled to wage loss benefits if you are not able to work those same overtime hours.

Workers’ Comp issues are very complex in the state of Minnesota. If you have any questions about a workers’ comp issue, contact a skilled MN workers’ comp attorney.

Determining wage loss benefits is often straight forward. The controlling factor is the worker’s Average Weekly Wage (AWW). If the injured worker is off work completely due to the injury, they get 2/3 his or her AWW. If the injured worker is working fewer hours due to work restrictions, they get 2/3 the difference between the AWW and the amount they are earning while on work restrictions.

The AWW is generally found by averaging the employee’s wages during the 26 weeks prior to the injury. Pretty easy, right? Well, most of the time.

The reality is that an employee’s AWW can be a major issue on a workers’ compensation claim. This is particularly true for injured workers that just started working for their employer. This is because the “26 weeks prior” may not accurately reflect the wage loss the person may suffer as a result of the work injury, especially for new or recently hired employees.

What if the injured worker was hurt while receiving “orientation pay,” or injured during the “training period,” or before they were eligible to receive commissions for their work? The 26 weeks prior calculation may not be a fair reflection of the wages they were in fact going to receive. Often the insurers will attempt to calculate the AWW by using this simple equation:

• The total pay to the employee in the 26 weeks immediately prior to the injury, divided by 26.

The unfortunate reality is that for new employees, this often short shrifts the injured worker from the amount of wage loss benefits they should actually be receiving.

If you are a new employee and get injured at work, be aware that the simple “26 weeks prior” average may not provide you with the wage loss benefits to which you are entitled. New employees that get injured are more often shortchanged regarding wage loss benefits.

In these situations, a skilled workers’ comp attorney can advocate for an appropriate AWW, to make sure you get the wage loss benefits you deserve.