School districts think of workers’ compensation only after an employee sustains an alleged injury and files a claim – living by the old expression: we will cross that bridge when we get to it. Most do not realize that by doing so they have already skipped phase one of workers’ compensation and put themselves at a disadvantage. This is especially true when dealing with a potentially frivolous claim that may drain district resources.
Workers’ compensation can be grouped into three phases:
1. Training & Investigation
2. Administrative Appeals (Bureau of Workers’ Compensation (“BWC”) / Industrial Commission)
3. Court Appeals
I will skip phase one – for now – and address phases two and three first. If your district is in phase two an employee has already been injured – allegedly – and filed a claim. After receiving the claim, the BWC reviews it and issues an initial order either allowing or denying it. Thereafter, within a mere 14 days, either party may appeal to the Industrial Commission. This leads to two short hearings – currently being conducted by telephone – first before a District Hearing Officer and, if either party appeals, before a Staff Hearing Officer. These hearings may involve various issues: whether the injury was sustained in the scope of and arising out of employment, medical issues, compensation, timeliness of filing, etc. Some districts choose to have non-attorneys represent them at this stage. Although non-attorneys can do so, they have restrictions during these hearings, especially when legal issues are involved. For example, non-attorneys cannot examine or cross-examine any witnesses (including the employee); cannot cite, file or interpret administrative rulings or case law; cannot make or give any legal interpretation or comment about evidence; and cannot give legal opinions or advice. After the Staff Hearing Officer issues his/her decision, either party can appeal to the Commission itself. Unlike the hearing officers, the Commission has discretion whether to hear an appeal. It exercises this discretion so rarely that the odds of the Commission hearing the appeal historically have been similar to the Cleveland Browns winning the Superbowl (I hope I need to update this blog next year).
Once all administrative appeals have been exhausted, either party may appeal to the court of common pleas. Your district is now in phase three. Unfortunately, this is when some districts finally start paying attention. By this time, however, the costs to overturn an unfavorable decision are significantly increased, and/or the damage is already done.
Here is a basic example. An employee sustains a questionable injury to his/her shoulder, deemed to be a “sprain.” Although the district has questions about the injury, it does not properly investigate or dispute it because it is “just a sprain.” The claim is therefore allowed for a sprain. A few months later the employee seeks to “additionally allow” the claim for a “rotator cuff tear.” The employee’s attorney, armed with a doctor’s opinion, claims that the rotator cuff tear is a result of the workplace injury. The district recalls the questionable circumstances surrounding the injury. However, the district can no longer argue that the injury never even took place – since the claim is already allowed for a “sprain.” This then allows the employee to add the rotator cuff tear to the claim. The employee needs time off for the surgery and the district needs a substitute. Meanwhile, the BWC is paying medical costs in the claim and/or temporary total compensation to the employee. This claim is draining district resources and impacting its premiums.
Let’s take this example even further. The district decides it is not worth fighting the rotator cuff tear in court because the employee will soon be back to work. However, the employee is now seeking that a psychological condition be added to the claim – claiming he/she developed anxiety or depression because of the injury. The district believes that this new request has no merit. Perhaps the district wins at the administrative level. However, the employee appeals, and your district is now in court. And the only issue before the court is whether the psychological condition should be allowed. Remember, the sprain and the rotator cuff tear have already been allowed, drained district resources, and impacted BWC premiums.
The above example may seem far-fetched, but it is common. The simplest explanation why it happens is that claimants’ attorneys handle workers’ compensation cases like personal injury cases – on a “contingency fee” basis. In other words, they receive a percentage of the benefits or settlement. Stated differently, they do not earn money for having the claim be allowed for a sprain. Rather, the sprain opens the door for other conditions to be added, which then allows them to seek monetary awards and ultimately negotiate a higher claim settlement.
This is why phase one – Training & Investigation – is crucial. Successful defense of workers’ compensation claims begins in phase one; not two or three. School districts must know how to properly train their employees to investigate claims.
Thus, before an injury even occurs school districts should conduct periodic safety training on specific workplace policies and procedures. Employees should sign acknowledgements that they participated in this safety training. New employees should be given copies of safe work practices and any department-specific practices. Moreover, safety training should be an ongoing process. Some school districts, for instance, have safety committees or teams. And even more importantly, the injury reporting and treatment process should be formalized. Employees should always acknowledge, in writing, that they understand the reporting process.
Equally crucial is understanding how to conduct a proper investigation, or who will conduct it. Does your district designate one key individual to be responsible for safety training and investigations? Is this individual trained how to obtain medical releases from the employee, witness statements and other evidence, compose an investigation summary, etc? Is the district (or its designee) prepared to have answers to: who is the injured party; what was the employee doing; when did the injury occur; where did it occur; and why did it occur? And by “who is the injured party” I am not referring to the employee’s name. Each of these questions contains a subset of others that may be crucial to your district’s claim defense. For example, with respect to who, is the individual an independent contractor? What is their work history like? Do they have prior industrial injuries to the same body parts? With respect to what, was he/she injured while coming to and going from work? Were they performing duties that are in their job description? With respect to when, did it occur immediately after a job dispute? Or shortly after the employee came back from vacation? With respect to where, is there video surveillance in the area? Did the alleged injury occur in a breakroom? With respect to why, was the employee engaged in horseplay? Did he/she have pre-existing conditions? These questions are important because the more factual and medical evidence the district can obtain, the greater the success in defending the claim. This is why phase one is crucial and why a successful defense of any workers’ compensation claim begins in this phase.
With schools now returning to in-person learning, phase one takes on even more importance. COVID-19, if anything, had a positive impact on workers’ compensation. Employees either worked remotely or did not work at all. This meant less claims were filed, which meant less in premium costs. On January 1, 2021, public employers had their rates cut 10%. Moreover, in December the BWC mailed out additional $500 million in dividends and has been urging employers who have not cashed their checks to do so. See here. But now that more employees have returned to working in the buildings, phase one becomes even more crucial.
In the end, school districts have a choice. They can continue to cross that bridge once they get to it. Or they can take a few minutes to read this blog, a few more to jam out to Brian McKnight’s 1999 hit “Back at One” (by clicking here), and take his advice that whenever you believe your work is done, start back at one.
[i] IC R04-1-01.
[ii] R.C. 4123.511(E).
[iii] R.C. 4123.512(A).