Guarding against mistakes

May 1, 2008
Pre-Employment screening might be one of the best forms of protection against workers' compensation issues. Mark Travis, an attorney from Wimberly, Lawson,

Pre-Employment screening might be one of the best forms of protection against workers' compensation issues.

Mark Travis, an attorney from Wimberly, Lawson, Seale, Wright & Daves, PLLC, said that in 20 years of representing employers in labor-employment disputes, he has discovered that companies frequently hire their problems, despite their best efforts.

“We get busy running our business and trying to get warm bodies in to do what needs to be done, and I don't think we do what we need to do when we hire people,” he said. “I don't think even the best employers do the best job they should in the application process. A lot of times we hire our problems.

“I know the labor market is difficult in certain areas. You need them quickly. But sometimes in being in a hurry, you make bad decisions. But through a little searching and investigating and background- and reference-checking, we can figure out what type of employees we should stay away from. If there are gaps in their employment record or things that just don't make sense, those things need to be verified. They're either trying to cover up something or may be overstating what they've done. Make sure dates line up.”

He said the pre-employment medical exam is a particularly important part of that process.

“If we can keep that person from working for us, then we've avoided a claim by a person doing a job they ought not be doing, or worse, they might have a pre-existing condition,” he said. “If we go through the steps correctly, hopefully we can avoid hiring that problem, that accident looking for a place to happen.

“In most states, there's the old legal adage of, ‘You take your plaintiff as you find them.’ So what if they have a bulging disk before you hired them and they hurt themselves with you? You've bought the whole farm. If employers would be more prudent in trying to eliminate these workers' compensation claims that are looking for a place to happen, that would help us tremendously.”

Actually cost-effective

He said that many employers are resistant to the idea of a pre-employment medical exam because they believe that it is “too expensive and cost-prohibitive” and that if the exam reveals anything, they have no options. He said that's mistaken because they can still legally withdraw the offer of employment if that exam shows that the prospective employee “shouldn't be doing that type of work.”

He also said the exam does not have to be performed by a doctor.

“You can have an occupational nurse,” he said. “You don't even have to have a medical professional do it. It can be done internally with a report of pre-employment medical history. If you see something that gives you concern about their ability to work, you can ask them questions about that or even send them to a doctor at that point.

“Employers say, ‘Isn't that discrimination if I do anything about it?’ If either they cannot do that job or they present a risk to their own health and safety or the health and safety of other workers, they're not qualified under the American with Disabilities Act (ADA) and the offer can be withdrawn — so long as it's job-related. Example: Let's say someone checks epilepsy on the form. You can't make a knee-jerk reaction and say, ‘They can't do it.’ If it's been under control with medication for 20 years, that would be discrimination if you withdraw an offer.”

He said employers are permitted to ask anything post-offer, but can't ask anything before the offer — not even how many days the applicant was absent in a previous job.

Travis said that in most states, misrepresentation during the pre-employment process can serve as a defense to a workers' compensation claim.

“ADA says if a state law recognizes a misrepresentation defense in workers' compensation, then ADA doesn't trump that,” he said. “ADA was enacted so people don't have to lie about previous health conditions.”

Travis said it makes a lot of sense to go through the medical-exam process because hundreds of them might cost what one significant claim would.

“If you hire an employee who is 40 to 50 years old and has a significant workers' compensation claim where they cannot work after that, that's a big claim,” he said. “I'd submit to you, on a cost-benefit analysis, that it makes sense to do this over time.”

Following procedures

He said that in most states, there is a defense to the workers' compensation claim if a person violates a safety rule or willfully refuses or fails to use a safety device or follow a safety procedure.

“If you want to utilize that defense, you need to make sure that if you're going to discipline them, you have to be able to show that you uniformly and consistently enforced that,” he said. “If you want to use it when somebody did something stupid, and they marched in four other employees and they said, ‘We do it that way all the time, and the supervisor knows about it,’ then it's not going to be worth the paper it's written on. Make sure you document the violation of your safety policy and discipline people, up to and including termination.”

Travis said injuries can be avoided by using a safety program featuring employee involvement, training, uniformly enforced discipline, inspections, and repair. He also suggested offering incentives.

“If they earn so many hours or weeks or months not having lost time, they get certain points,” he said. “If they get to the threshold, everybody in the department gets a gift card to Bass Pro Shops or Wal-Mart. One employer told me he got a 68% reduction in workers' comp claims, and that certainly was worth more than the $5000 he spent on the cards. And it creates a more heathy work climate when people take an interest in safety. It's contagious.”

He said prompt medical attention can short-circuit major problems.

“The older I get, the more convinced I am that in many cases, an employee will go out on workers' comp for what really is not a significant injury, but the claim was mishandled from the start in terms of you not having time to deal with it,” he said. “Sometimes you have to bite the bullet and express concern, even if you think they are not hurt as badly as they are letting on. Sometimes you have to bend over backward to demonstrate concern, because I'm convinced that a lot of minor injuries turn into more severe injuries over time when an employee thinks you don't give a darn about them. Their source of support is no longer their employer or co-workers — it becomes the system, the lawyers, the state agencies. That's who they begin to turn to as their support. Once they turn that corner, it's pretty much a lost cause.

“Their lawyer is telling them, ‘They're not ever going to hire you again. You're not able to go back to work. You're disabled.’ — all the things they can't do. And they soon enough come to believe that. They shift into survival mode. The longer they stay out, the less likely they come back to work for you.

“Assure them that their job is secure up to a point. If there's a way to keep them satisfied and happy, there's a chance your liability is going to be reduced. Assure them that their medical bills are going to be covered, answer their questions, and inquire about their condition. Require them to check in weekly and better yet, call them weekly and find out how their condition is.

“If you rely on the insurance company to do that, you've pretty much lost the game at that point because insurance adjusters have hundreds of claims, and your employee is just another screaming mouth complaining out there. It's a good idea to be more involved in that and take off some of the pressure caused by your employee having to deal with a 1-800 person.”

Emphasize light-duty work

He said a company should work closely with the doctor, including a tour of the facility. It should be emphasized that the company does have light-duty work that the employee can do.

“Emphasize to them, ‘We have a philosophy of trying to get people back to work. We wanted you to come out and see the nature of the work we do here. Sometimes people are not going to be able to come back to work, and we understand that. But we also want you to understand that we want people to come back to work,’” he said.

“Light-duty doesn't work everywhere. I know that. It's not terribly productive. But if you can find something for them to do, the chances are that the more you keep them connected with the workforce, the more likely they will feel some sense of comfort that they may recover sufficiently that they can do that. Example: I'm sure in all your operations, drill bits need to be sharpened. You're constantly drilling when you're making trailers. Somebody had a light-duty position where they had someone sharpen drill bits. They could do it seated or standing. They were in the plant, but sort of separate, apart. In a gentle, subtle way, they knew they were the ones on light-duty. There was a general pressure to get back to work.”

Travis encourages companies to put a defined limit on light-duty work.

“I have seen situations where companies ought to know better, but because the person's situation has ebbed and flowed and the person has been in and out of the plant, the temporary light-duty has turned out to be not temporary,” he said. “They have been in the position for months and months. You want to say, ‘Enough's enough, we need to make some decisions about what your final restrictions are going to be and what you're going to be doing.’ If it's gone on for months, a person could argue, ‘You've accommodated my disability. That's my job. You've created this job for me.’

“So make sure you have a light-duty policy and within that, say, ‘This is the maximum amount of time.’ Have some defined period of time. ADA says you're not required to create light-duty jobs, but if you do, you can certainly put some defined limit on it. If they can't return to a normal position, you can cut them loose at that point. There's nothing illegal about that. ADA doesn't require an accommodation to whatever job that person wants.”

Travis said that although the physician has an obligation to the patient, he potentially can view the company as a client as much as the patient.

“Find out what their referral patterns are,” he said. “If specialized treatment is necessary, who does that go to? What type of services do they do on-site and what do they have to refer out?

“Make sure the employee understands that you are going to insist on regular updates. What is the likely time of return to work? Make sure you know through the doctor when those appointments are. If you are relying on the insurance company and saying, ‘That's what we have insurance for,’ you're asking for trouble.

“Consider maintaining the regular wage rate. Assuming they are coming off light-duty and are going back to a regular position, make sure you get some fitness for duty from the physician that says, ‘Yes, they can do this.’ Most times in workers' comp, that's not going to happen. Most times there are going to be some restrictions.”

About the Author

Rick Weber | Associate Editor

Rick Weber has been an associate editor for Trailer/Body Builders since February 2000. A national award-winning sportswriter, he covered the Miami Dolphins for the Fort Myers News-Press following service with publications in California and Australia. He is a graduate of Penn State University.