Why bother with a job offer letter?

Time consuming, tedious, and seemingly unnecessary -- job offer letters for a worker's compensation claim are probably not an employer's favorite task.  As a RTW person, they're at the top of my reading list.  I realize this is not the case for most.

Why should employers offer a modified or full duty job in writing?

• It clearly communicates the expectations surrounding the return to work.
• What are the restrictions the employer is referring to base their offer on?
• What are the job duties?  Rate of pay?  Hours?  Start date?
• Where and who should the injured worker report to?
• How will other benefits be handled (accrued time, etc.)?
• Who should the injured worker contact if they have questions?
• It documents the offer
• So many times the employers state that they offered work or tried to offer work and the injured worker didn't show up.
• That may work in some states, but in many, employers need some type of documentation to demonstrate the offer.
• The letter is important in showing the amount of earnings the injured employee may be refusing as well as details that help a judge determine if the employee was unjustifiably refusing the work or if it was justified.
• This directly relates to whether the employer is entitled to relief under the WC laws or if the injured worker is entitled to ongoing benefits.
• IF an employer finds themselves in litigation over a job offered, they may need to testify.  This may not happen for months.  Are you going to be able to recall a conversation you had with any great level of confidence during a hearing?  Having everything written out will help ensure that you know what you offered months prior.
• It is a best practice
• Once an employer incorporates this practice into they disability management policies, it becomes routine and simple.
• It may be dictated by various laws other than workers' compensation (which is what this particular post pertains to).

Before issuing a modified or full duty job offer it's a good practice for the employer to contact the injured worker and let them know that modified work (or full duty work) is available.  This will allow them to ask questions in advance of receiving the letter and communicate things with a level of transparency that will hopefully make the process go smoother.

When the duties of a job change or the wages change, it may also be a good idea to send an updated job offer to document the changes.

Although they are sometimes time-consuming, job offer letters can be based upon a template that will pay for its initial investment time and time again.  If you have questions about what needs to go into a job offer letter, please contact your claim representative as each state has its own set of requirements (or lack thereof).

Defining Disability - Part I: The Medical Perspective

Whenever we have a discussion with someone, we’re processing the information they are relaying based upon our own experiences and interpretation of what the other person is saying.

It never matters what you think you said -- it’s what the other person heard.

If you asked 20 people to define the word “disability” you’d receive 20 different, albeit somewhat similar, responses.  They’d all most likely focus on comparable aspects of the word, maybe even involve like examples.  There would also be some stark differences.  This is because we’re all defining it based upon our personal experiences and where we sit in the world.

This series of posts will focus on our unique perspectives into the definition of disability – medical, workplace, and regulatory definitions.  I encourage you to ask a sampling of people to define disability to you.  Think about the frameworks they’re using – physical limitations, work situations, developmental limitations, etc.  Consider why someone is using that frame of reference – it’s based upon their experiences.

Medical

When a person sustains an injury or illness, their doctor, or other medical professional, often discusses what types of activities they should avoid and what activities are “safe,” often putting some type of limitation on a particular activity.  An example of this would be no overhead lifting or no lifting over 15 lbs.  These recommendations are based upon past experience, objective reference guides, and individual attributes of the injured or ill patient.  The healthcare provider is often considered the “expert” who is making these determinations.  As you can see, they play an incredibly important role in stating what the injured or ill person can and cannot do based upon their medical (physiological) condition.

The medical definition of disability does not contemplate what the injured worker’s job requirements are – if you cannot lift 15 lbs. at work, it is not safe to lift 15 lbs. at home.  In this respect, we’re focusing on what the injury is, what it has done to your body and what you’re subsequently not capable of safely performing as a result of the injury.

What types of challenges are presented?

In the various arenas that these restrictions are used, the information may not be considered adequate or sufficient from the end-users’ perspective.

Injured worker: 

• What does 15 lbs. really feel like?  I don’t carry a scale around with me, how will I know? The result is general avoidance behavior.  The injured person will avoid lifting things with unknown or uncertain weights.  I know I can lift that  5 lbs. bag of sugar because it says it weighs 5 lbs., but I know I can’t lift my dog because the last time we were at the vet, she weighed 27 lbs.
• There may not be a clear understanding of why the restrictions are in place, i.e., what additional damage could be done by exceeding the restrictions.  Conversely, fear or re-injury and avoidance behavior can result in unintended negative consequences such as “frozen shoulder.”  This can occur in shoulder injuries due to lack of motion.

Employer:

• Similarly to the injured worker, they’re not sure what each aspect of their employee’s position entails.  There’s probably a fear of re-injury as well.  This can lead an employer to say that they don’t have work and that it’s best to let the injured worker recover before returning.
• The employer may not understand fully what work the injured worker can and cannot safely perform. The employer may be trying to complete FMLA, short term disability, and/or workers’ compensation paperwork with the information provided.  Often times a disability note provides the date it was written and the current restrictions.  This is only part of the information needed to complete these forms.

We’re provided with some of the information we need, but not everything we need for every system that the injured worker maybe find themselves in.  This results in follow up paperwork that is generally specific to the employer or insurance carrier.  Each of these parties has their own “definition” of what disability means.

What can injured workers and employers do to navigate these definitions?

• Injured worker
• Understand what information your employer and/or their workers’ compensation insurance carrier needs.
• Ask questions
• How is disability defined?
• In some state workers’ compensation systems it solely depends on earning capacity as a result of your work injury/illness.  In others it may have differing definitions. If you don’t understand, keep asking questions until you do.
• Questions for your doctor:
• Can I safely perform duty x?  How does my activity level impact my recovery?  What are some of the signs that I’ve done too much or too little?  If I feel good can I do more?
• Employer
• Understand what information your company needs to make a determination about modified duty:
• What is the injured workers’ job?  What are the physical requirements?  Are there other jobs that fit these restrictions?
• Ask the physician to approve or comment on the pre-injury or modified duty job description.
• If you aren’t sure what they can safely do, ask!
• Communicate with the injured employee to make sure everyone has the same understanding of the work and the restrictions.  

It may be helpful to explain what framework you’re using when describing or defining disability.  An example of this would be a doctor saying, “From a medical standpoint, your rotator cuff is torn.  At this point in your rehabilitation, you’re able to use your injured arm to lift no more than 2 lbs., no higher than counter/waist-level height.” 

That’s informative for an injured worker to know, but what does that mean in terms of them returning to work? 

Be sure to check out the rest of this series on the different ways disability is defined and why it matters.

 

 

Concurrent employment conundrum: Return to Work for those who work more than one job

Some states provide benefits for concurrent employment if the injured worker is unable to work one or both (or more, I suppose) of their pre-injury jobs.  The workers' compensation policy covering the injury pays for the lost wages the injured worker sustains due to the work injury, which includes wages lost at another job.

Here's the scenario:

Steve works for No Leaks Plumbing as a plumber.  He also works part time as a bartender at Ps and Qs,Pub on the weekends.  While Steve is working to loosen a pipe under a sink at a customer's home (working for No Leaks Plumbing), he injures his right shoulder.  After going for treatment, he is given one-handed restrictions.  The good news is, No Leaks Plumbing is insured with Eastern Alliance and has a solid return to wellness program.  No Leaks Plumbing can bring Steve back the following day to work within his restrictions.  Unfortunately, Ps and Qs Pub cannot. 

What's the big deal, right?

Well, if the state that Steve files a claim in considers concurrent employment wages as part of the claim, then it can have implications for No Leaks Plumbing.

When calculating the compensation Steve is due as part of his injury, the claim representative would obtain wage information from No Leaks Plumbing and Ps and Qs Pub.  These wages would be combined to determine Steve's pre-injury average weekly wage (AWW).  Based upon the AWW, Steve's compensation rate, or temporary total disability rate, would be roughly 66 2/3% of the average weekly wage.

Let's say Steve makes $1000 per week at No Leaks.  He makes $200 working at Ps and Qs Pub.  One may think that since Steve is working for No Leaks without a loss of earnings, his wages from Ps and Qs Pub wouldn't matter. That is incorrect.

Steve's AWW would be $1200.  If Steve is able to earn his pre-injury hours, earning his pre-injury wages on modified duty, the compensation carrier would still owe Steve 2/3s of the difference between his post-injury earnings and his pre-injury average weekly wage.  In this example, it would be $1200 (AWW) - $1000 (wages working modified duty) = $200.  66 2/3% of $200 = $133.33.  Steve would receive a paycheck from No Leaks, and a temporary partial disability (TPD) check for a percentage of his lost wages from Ps and Qs Pub, in the amount of $133.33.

This puts No Leaks in a difficult position.  They support modified duty but Ps and Qs Pub does not.  The claim representative can attempt to work with Ps and Qs to bring the injured worker back to modified duty, but the pub really has no reason to, other than to have an employee performing some type of work. 

Keep in mind, as long as an injured worker's earning capacity is reduced, due to the work injury, then there is likely going to be benefits due to that worker.

What can be done in this situation?

• The claim representative can encourage the injured worker to discuss modified duty with their concurrent employer
• Obtain a job description from the other employer to help the treating physician determine what the injured worker can safely do at the pub.
• The primary employer (No Leaks) could consider placing the injured worker at a local not-for-profit organization through transitional duty to reduce exposure under the claim, rather than simply paying the injured worker their pre-injury wages.
• If all attempts fail to bring the injured worker back to work at the other employer, the primary employer (No Leaks) may be forced to cover the secondary employer's wages until the injured worker is recovered to perform the work at the pub.

Concurrent employment creates a unique challenge for employers and insurance carriers.  An effective RTW program can help control workers' compensation costs, and can help employers control the aspects of their claims that are within their control.  Sharing expertise and experience with the secondary employer may help them understand why it is a good idea to bring an injured worker back to modified duty.

Where in the PA WC Act does it say employers have to offer work to an injured worker? Right here...

I once had an employer ask me to show them where in the Pennsylvania Workers' Compensation Act it states that they have to bring an injured worker back to work.  I kindly directed them to Rules and Regs --  Title 34. Labor and Industry, Part VII. Bureau of Workers’ Compensation, Chapter 123. General Provisions Part II,  Subchapter D. Earning Power Determination, section 123.301 Employer job offer obligation.  Here’s a link to this particular subchapter.

The Rules and Regulations state that if a job is open with the liable employer, that the injured worker is capable of performing, “…the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based upon earning power.”  Basically, if you’re a Pennsylvania employer who is currently hiring for a position that an injured worker is vocationally and physically suited to perform, then the employer has an obligation to offer that job to the employee. 

If the employer offers the job and the injured worker fails to respond to it or refuses it, then the employer’s duty has been satisfied and they can seek relief for refusal of a valid job offer and/or pursue evidence of earning power through a labor market survey/earning power assessment.  If the employer has more than one opening that the injured worker could perform, the employer has the right to choose which job to offer.

Just for clarification – “…prior to seeking a modification or suspension of benefits based upon earning power” means that the employer/insurance carrier cannot seek relief through an earning power assessment/labor market survey if there is suitable job available to the injured worker at their pre-injury place of employment.  Proving earning power basically means that an employer/insurance carrier utilizes the services of a vocational counselor to provide proof that there is work that exists in the usual employment area of the injured worker that he/she is vocationally and physically suited to perform.

This earning power assessment consists of a vocational interview with the injured worker to review his/her work history, vocational skills and any other relevant attributes pertaining to their employability.  Some examples are military experience, education level, prior jobs held, or any certifications that the injured worker may possess.  The vocational counselor then conducts a labor market survey to see what types of jobs exist in the market that the injured worker could perform, taking into consideration their work abilities.  Once the survey is completed, the vocational counselor determines realistic earnings for these jobs for the injured worker. 

Once the labor market survey/earning power assessment has been completed, the report is provided to all parties involved and the employer/insurance carrier may decide to file a Petition to Suspend or Modify the injured worker’s wage benefits based upon this projected earning capacity.  The purpose of this evidence is to demonstrate that there is work available to the injured worker and based upon their responsibility to find work within their restrictions, the employer/insurance carrier should be relieved of some or all of their ongoing wage benefits (depending on the amount the injured worker is deemed capable of performing).

Many employers are unaware of how their ability to offer modified duty impacts their claims.  If the earning capacity identified by the vocational counselor is less than what the injured worker previously earned (their average weekly wage for their WC claim), then the employer/carrier is responsible for 66 2/3% of the difference, which is called Temporary Partial Disability Benefits, or TPD.  In Pennsylvania, an injured worker is entitled to 500 weeks of TPD benefits.  If 2/3’s of the gap in earning capacity is equal to $150 x 500 weeks, the employer/carriers is still responsible for nearly $75,000 in wage benefits.

The intention of this post is not to make readers experts on any aspect of the Pennsylvania Workers’ compensation Act, nor is it to be construed or utilized as legal advice.  The intent of this post is to make employers aware of the potential avenues that they may have to travel, if they are unable to bring an injured worker back to their pre-injury earning capacity in Pennsylvania.  As with everything in insurance, each case is fact-specific and any decisions should be reviewed with an experience claim representative and/or legal counsel.

Meet JAN, your new best friend

Who is JAN?

The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues.  Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.

JAN’s Workplace Accommodations:  Low Cost, High Impact  reports  the results of a recent survey of 723 employers who utilized JAN’s services.  We’ve provided some of the most relevant findings below.

An astounding 57% of accommodations didn’t cost anything.  Zilch.  They were free.  The average cost of a one-time expenditure was $500 for employers.   Do the accommodations work?  76% of employers reported they found the accommodations to be “very effective” or “extremely effective.”

What benefits have employers utilizing JAN received?

Direct Benefits
 

39% reported a savings on workers’ compensation or other insurance costs

90% reported the retention of a valued employee

71% reported increased the employee’s productivity

60% reported the elimination of costs associated with training a new employee.

Indirect Benefits

66% of employers reported improved interactions with coworkers

61% cited an increased overall company morale level

45% reported increased workplace safety

57% reported increased overall company productivity

99% of employers stated they would use JAN again.

There’s a Searchable Online Accommodation Resource (SOAR) database which provides information, suggestions, examples and resources for employers interested in implementing a job accommodation.  These suggestions are sorted by impairment or by industry.

 

References:

Job Accommodation Network (Original 2005, Updated 2007, Updated 2009, Updated 2010, Updated 2011, Updated 2012). Workplace accommodations: Low cost, high impact. Retrieved August 12, 2013, from http://AskJAN.org/media/lowcosthighimpact.html

 

5 Tips for identifying modified duty RTW options

1.  Review job descriptions of other positions. 
If you don't have job descriptions (tisk! tisk!) then think about the less physically demanding elements of each position within your company.  Make a list of these tasks.  Ask other managers or supervisors if they have any "extra" work that needs to be done.  Most people have a name for this type of list...we'll call it the never-ending, ever-expanding to-do list.  Sure, re-organizing the toolboxes on the trucks would help, but who has the time?  Answer:  Your injured employee!  Yes, having well-stocked first aid kits in every vehicle would be a nicety, but who has the time?  Answer:  Your injured employee!  Bonus tip:  Keep this list in the same place you keep your WC insurance information -- there's no need to reinvent the wheel the next time you experience a lost time claim.

2.  Ask the injured worker
It is astonishing how many employers don't involve the injured worker in the RTW conversation.  I bet there are at least 10 things that you do, weekly, if not daily, that fall into the "other duties as assigned" category of your job description.  Most likely, your boss doesn't even realize they're being done, but would sure notice if they weren't.  The point is, the injured worker knows their job better than anyone else and if asked, they could probably identify at least a handful of things they could do.  Offer a bit of cross-training and voila!  That brings us to our next tip...

3.  Offer a few hours of cross-training
The payoff for this tip can be extensive.  There's nothing more frustrating than having one of your team members taken out of work when you need them.  Consider any type of cross-training opportunities.  Could they learn to answer the phones?  Make follow up customer satisfaction calls?  Could the injured worker learn to write estimates or coordinate deliveries?  Even if it takes 10 hours to train someone, it could yield weeks of valuable, meaningful, productive modified duty.  This could also free up some of your other team members to get to more pressing issues.

4.  Add value to your organization with RTW
What if you could use a challenging situation (such as a WC claim) to increase sales or customer satisfaction?  An example of this involves an appliance retailer.  The injured worker couldn't deliver appliances, but knew how to operate them.  Today's appliances involve many technological advances, buttons, self-cleaning, filters, etc.  I, up until a few months ago, didn't know my microwave had a "potato" button.  Apparently my mother-in-law didn't either.  I was so excited to discover this feature, but wished that someone had shown me sooner!  So, why not have the injured worker do a new customer orientation, demonstrating all of the functions of the appliance, best practices for maintaining and cleaning that tricky flat top stove... You get my point.  I'm pretty sure the big box stores aren't doing something like that...

5.  Use a work injury as an opportunity to improve safety
 Consider having an injured worker review safety materials, watch safety videos for your industry, or even conduct a "tool box talk" that will help prevent future injuries.  When the message is coming from an injured worker, it carries greater weight.  This shouldn't be punitive, but it should be viewed as an opportunity to increase safety culture, to learn from a negative event, and to accommodate restrictions.

Struggling with WC costs? -- Focus on what you CAN control!

It's easy to focus on what you can't control.  Sometimes we do this to avoid accepting responsibility for our own situations or simply because we've never stepped back and taken an objective look at the situation.

As an employer there are many things that we can't control -- the weather, the laws the govern how you must conduct business, as well as the restrictions that a physician places on an injured worker as a result of a work related injury. 

So, let's take a look at what we can do to influence the outcome of a workers' compensation claim.

Offer modified duty
As written in our last post -- there's no condition so disabling that there's not someone in the US with that condition working full time today.  If you say that you don't have modified duty, you're likely not going to look for it.  Keep an open mind and use the resources available to help you identify modified duty options.

Modified duty wages
The rate at which you pay an injured worker for modified duty impacts the amount of any temporary partial disability benefits (TPD) the injured worker may be entitled to.  Obviously, the more they are paid for modified duty, the less they receive under their workers' compensation claim.  In most states, the TPD rates are 66 2/3 of the difference between the injured worker's pre-injury wages and their modified duty wages.

Safety and Injury Prevention
While injuries may occur that are out of your control, there is much that you can do to prevent injuries from occurring, and to reduce the severity of the injuries if they do occur.  Providing a safe work environment is one element of injury prevention, enforcing safety rules, providing appropriate personal protective equipment (PPE), and appropriate training for new hires are just a few suggestions.  Injuries can still occur if we're being safe drivers, but if the employee is wearing their seatbelt at the time of injury, this safety measure can greatly reduce the severity of the injury.  Also, having employees properly trained to administer first aid can help minor injuries from developing into something worse.

Organizational Culture that Supports Safety and RTW
While this may be the most challenging aspect of safety and RTW, creating buy-in at all levels of the organization is paramount in influencing your workers' compensation program before an injury even happens.  If employees know that they will be offered modified duty, they may be less likely to file a false injury claim.  It also communicates that employers care about the wellbeing of their most valuable assets -- their employees.

Appropriate Medical Treatment
Providing prompt and appropriate medical treatment can have a significant impact on the injured worker's recovery.  If your state allows direction of medical care, having a physician panel that complies with state regulations is an important step towards helping the injured worker recover and RTW.

Maintain Contact with the Injured Worker
Too often an employer files a claim and assumes that they should let the insurance carrier maintain all contact with the injured worker -- this is incorrect (unless of course the employee retains an attorney who prohibits contact with the injured worker).  One of the best ways to keep an injured worker focused on returning to wellness is to stay in contact with them.  Send a get well card, give them a call once a week or every other week to check in, invite them in for employee meetings, and keep them in the loop so that they feel connected with the workplace.

This turned into a lengthy post, but the length (and content) hopefully communicate just how much an employer can influence the outcome of their WC claims.

RTW and Seasonal Workers: Bring them back or risk paying them all year long

It's that time of the year again...your neighbor is fertilizing and seeding their lawn to ensure that their lawn invokes feelings of grass envy throughout your neighborhood, you're waking up to the sound of birds chirping in the trees as opposed to snow plows scraping the streets, isn't Spring a wonderful time of the year?

Soon we will start to see the landscaping trucks on the streets at the crack of dawn and workers spreading shovelfuls of recycled and dyed pieces of wooden pallets, known to the consumer as mulch.  What did you think I was going to say?  College students will be returning home to look for summertime employment, hoping to secure that sought-after summertime gig that pays more than minimum wage in an attempt to offset the rising prices of bee---I mean...books.  Everywhere you look, people are starting their spring projects, building patios, planting gardens and getting those home repairs they've put off until warmer weather.

But, if you're a seasonal employer you're probably not thinking of gladiolas and grilling, you're thinking about starting up business again and getting back to work! 

Why worry about WC at a time like this?  There are several reasons.

Useful tool! Job Description Writer

So, you've probably gleaned from our blog that job descriptions are very important (See our prior posts on such 04/16/12 and 03/12/12).  We've given you the forms to create a job description, advice on why you should have them on file for every job, and recommendations for using them to develop modified duty work.

A detailed job description is one of the most effective tools in returning injured workers to modified duty, not only for employers, but for physicians, physical therapists and injured workers.  Without an exact destination in sight, you can easily get lost, or end up taking the long way to get there. 

Provided by careeronestop, the aforementioned useful tool helps you build job descriptions, step by step.  Give it a try!