Up North--May 2008

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May 2008

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

Preventing needless work disability: Acknowledge the contribution of motivation on outcomes and make changes to improve incentive alignment, Part II
Minnesota workers' compensation bill signed to law
When is a First Report of Injury required?

Preventing needless work disability: Acknowledge the contribution of motivation on outcomes and make changes to improve incentive alignment, Part II

This article is a continuing discussion of the American College of Occupational and Environmental Medicine's (ACOEM) 2006 guideline entitled "Preventing Needless Work Disability by Helping People Stay Employed." The full text of the guideline is published on the ACOEM's website.

A successful transitional return to work program is one of the best defenses an employer has against needless disablement from work. A transitional work program or light duty work program provides an opportunity for the employee to recover on the job. Typically, a formal transitional work program limits the temporary light duty job assignment to a set period of time, e.g. 90 days or six months. The program has the goal of returning a disabled employee to work in their regular capacity no later than the end of the light duty job assignment.

Permanent job modifications or accommodations may need to be considered at the time an employee is released to work with permanent restrictions. An employer may need to perform an ADA (Americans With Disabilities Act) reasonable accommodations analysis to evaluate this possibility, but sometimes a permanent modification is as simple as providing an ergonomically-designed tool to assist with a certain task. Even if the employee is not technically a qualified employee with a disability under the ADA, an employer should not discount the possibility of minor job modifications to keep the employee on the job and, in the case of workers' compensation in particular, significantly minimize the potential risk exposure by doing so.

One of the difficulties with many return to work programs is the cynicism or bad reputation from other employees or supervisors. Enforcing a positive attitude toward light duty or transitional duty work may require a culture shift on the part of some employers. Respect for the program must come from the top down. The ACOEM guideline suggests that employers consider instituting a complaint process or appointing an ombudsman that employees can contact when they believe they have been treated unfairly in the return-to-work process. Minimizing antagonistic attitudes in the return to work/stay at work process may assist in avoiding unnecessary litigation and expense.

Minnesota workers' compensation bill signed into law

On April 30, Minnesota Governor Tim Pawlenty signed a workers' compensation bill into law which increases the maximum weekly wage and extends temporary total disability benefits, among other things. SFM General Counsel Scott Brener has highlighted some of the significant provisions in the following summary:

Maximum weekly compensation rate: The maximum weekly compensation rate is currently $750. The new law raised that maximum compensation rate to $850. The compensation rate is the rate at which weekly compensation benefits are paid, based on two-thirds an employee's average weekly wage at the time of injury, subject to the maximum compensation rate.
Temporary total disability benefits: The new law extends the duration injured workers can receive this wage-replacement benefit to 130 weeks from 104 weeks.
Retraining requests: Injured employees now will have 208 weeks instead of 156 weeks to request retraining.
Social Security numbers as case identification numbers: A workers' compensation identification number system has been approved, which replaces the current system of using injured employees' Social Security numbers as case identifiers.
Unlicensed complementary and alternative healthcare providers: Any service provided by these types of healthcare providers is deemed not compensable.
Relative value fee schedule: Allows for a quicker and easier process to adopt relative values for new medicines, treatments and technologies.
Rehabilitation: The maximum hourly rate for rehabilitation providers is increased to $91. Also, qualified rehabilitation consultants and rehabilitation vendors are required to file appropriate paperwork with the state or face a penalty.

The law goes into effect on October 1, 2008.

When is a First Report of Injury required?

The First Report of Injury (FROI) form is the document filed with the Minnesota Department of Labor and Industry (DOLI) that provides the basic information to set up a claim in the system. The self-insured employer or insurer must file it with DOLI for any claim that results in more than three days of time loss or any claim that results in permanent partial disability. A FROI should be completed for any work-related injury, however, even if the employer and insurer do not foresee a need to file it with DOLI at that time. It is a helpful, contemporaneous document that outlines some of the basic information needed to defend a claim if disputes arise at a later time.

SFM asks its policyholders to report work injuries right away, ideally within 24 hours, which allows the insurer to assist with the accident investigation in a timely manner. Additionally, because timeframes for reporting injuries and filing necessary documents are relatively limited, earlier reporting minimizes the possibility of penalties that the State can impose for late reports or late filings, and also minimizes the possibility of litigation from unnecessary delay.

The law requires reporting a work accident resulting in death or serious injury to DOLI within 48 hours, and the FROI can follow later. In all other circumstances where a FROI is required by DOLI, the law requires an employer to provide its workers' compensation insurer with the FROI within 10 days of the first day of disability. If the employer was not aware of the disability until later, the time is extended to within 10 days of the date the employer was aware of disability. The workers' compensation insurer has 14 days after the first day of disability to file the FROI with DOLI. The insurer's deadline for filing the FROI is extended to 14 days after the date the employer became aware of disability, if this occurred at a later date.

SFM will send a copy of the completed First Report of Injury to the employee, along with a copy of the Minnesota Workers' Compensation System Employee Information Sheet, as required by law. A PDF copy of the information sheet is available from DOLI's website.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.