Prevent litigation, stay in contact with injured employees

By Kathy Bray, Esq.

Based on our experience with workers’ compensation claims, many litigated cases could have been avoided if the employer had taken the time to show some concern for the employee’s welfare during the early stages of the claim.

It can be stressful for an employee to suffer an injury, and then hear nothing from his or her employer. The injured worker gets the impression that nobody cares.

Often, litigation is a reflection of feeling ignored. If the employer won’t make time to listen to an injured employee, an attorney will.

Show concern right away

As soon as you learn of an injury, have the claims coordinator, risk manager or the employee’s supervisor follow up right away. If the employee is off work, call the employee at home to see how he or she is doing or have someone see the employee in person, if appropriate.

Some supervisors avoid reaching out because they worry that they might say the wrong thing, but saying nothing is a sure way to deliver the wrong message.

Arrange with the employee to maintain contact. For example, maybe you agree to check in weekly.

What to say when you reach out to injured workers

Injured workers might be worried about their jobs and livelihood, so it’s really important to reassure injured workers that you’re looking forward to their return and you’ll have a job for them when they’ve recovered enough to return to work.

Make sure employees know you'll provide light-duty work or needed accommodations so they can return to work as soon as medically possible. Help them understand that they might end up doing an entirely different job than what they're used to depending on their medical restrictions.

Knowing that you're committed to bringing them back to work can help quell any anxiety or uncertainty injured workers face over what will happen financially to them or their families. SFM's experience is that the number one reason injured employees seek representation from an attorney is fear of losing their jobs and incomes.

Maintain good relationships, even if there's a dispute

If representatives of the employer attend hearings or other proceedings related to a disputed benefit, they should remain civil and respectful to the employee even if relations are strained. If the employee remains actively employed, walking over to the employee and his or her spouse at a hearing to greet them is a nice gesture, and lets them know the dispute is a separate matter — “just business” — rather than something the employer is taking personally.

Educate your supervisors and help them separate personal feelings from any disputes that arise along the way.

Anticipate questions from the injured employee

Injured employees will likely have questions about workers’ compensation benefits and employee benefits. Be ready to review the company’s policies regarding workers’ compensation benefits and direct them to their workers’ compensation claims representative for more detailed questions. If the injury is denied, or there is some dispute related to the availability of workers’ compensation benefits, talk with them about other benefits they may be eligible for such as short-term disability, long-term disability, or paid or unpaid leave benefits.

Explain whether any FMLA (Family and Medical Leave Act) benefits will run concurrently with workers’ compensation leave, or separate from it if the workers' compensation claim is denied.

Also review policies regarding continuation of health insurance benefits. Reassure the employee that you are there to answer any questions regarding employment or benefits, again minimizing the need for the employee to unnecessarily or prematurely consult outside sources.

Take concerns about work restrictions and retaliation seriously

Staying in contact with the injured employee remains important even after he or she is back at work.

If the employee or coworkers raise concerns about return-to-work issues, take them seriously. Be on alert if an injured employee feels like he or she is experiencing retaliation or being discriminated against in some way. Respond promptly to the concerns. Don’t ignore them.

If the supervisor or coworkers express concerns about the employee working outside of medical restrictions, talk with the employee right away. Emphasize the need to work safely and within restrictions. If the employee disregards that instruction, and continues to work beyond restrictions (for example, not asking for assistance with moving or lifting heavy objects despite the employer instructing him or her to do so), the employer may want to consider treating the disregard for restrictions as a performance issue or safety violation, and write up the employee or discipline the employee accordingly. While an employer cannot punish or retaliate against an employee for having a work injury, an employer can enforce reasonable performance and safety expectations such as working safely within restrictions.

If the employee complains that the supervisors or coworkers require the employee to work outside of restrictions, or retaliate when he or she declines to perform duties outside of restrictions, investigate those concerns. If the investigation suggests this is occurring, discipline or write up the supervisor or coworker if the behavior continues.

Work injuries can open up a host of opportunities for bad feelings, as well as goodwill. Your care, concern and attention throughout your injured worker’s recovery can play a big role in preventing unnecessary conflict.

For more information on what to do after an employee is injured, see these additional SFM resources:

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

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