How to Maximize Investigation of Workplace Injuries
Establishing an Investigation Protocol
Why a Protocol is Important
The actions taken at the very outset of a claim will dictate both the compensability, and the amount of benefits paid to an employee over the course of a claim. When an insurance company and employer work collaboratively to establish a protocol identifying who is responsible for the investigation, and the actions to be taken by the person conducting the investigation, will insure that all aspects of the investigation are thoroughly covered. Further, a protocol will establish rules/guidelines regarding the documentation of various aspects of the investigation to allow the results to be effectively used in litigation.
Identifying those Responsible for Conducting Investigation
Every employer should identify an individual or individuals responsible for investigating injuries reported at work. By identifying one or several individuals responsible, rather than allowing anyone to conduct the investigation, will provide consistency, insure guidelines/protocols are followed and can improve investigations as time goes on.
Additionally, an employer is strongly encouraged to work with their worker’s compensation carrier to set expectations and outline responsibilities between the employer and the adjuster regarding specific tasks to be conducted during the course of an investigation to insure that all tasks are completed and efforts are not duplicated. For example, if there is an individual identified within the employer organization to conduct investigations, and that person gathers all witness statements, the adjuster should not perform the same task. On the other hand, if medical records need to be requested in order to review prior to determining compensability, the adjuster should likely complete this task given their ability/knowledge in securing records from medical providers and compliance with HIPAA regulations.
Why Investigation Protocol should be Documented in Writing
In order to conduct a complete and thorough investigation, the protocol should be documented in writing and distributed to all those who may participate in conducting an investigation, including any adjusters with the employer’s worker’s compensation carrier. A written protocol will establish a clear chain of command, establish policies, and appropriate forms can be created to provide uniformity in the investigation process.
Accident Reporting
Employer’s accident report
An employer can create its own accident reporting form to be used internally when investigating workplace injuries. The benefit to the employer creating their own form allows flexibility to include additional information that may not be required by state forms. For example, an employer accident report may want to include information regarding safety training of employee, whether any changes need to be made to avoid future, similar accidents, etc.
A separate employer accident report can also be used for the employee to complete following the reporting of an injury. The report is the first opportunity for the employee to state, in writing and in their own words, how the injury occurred. A diagram can also be used for the employee to specifically identify what body part has been injured.
Please keep in mind that employer created accident reports, whether completed by the employer or employee, cannot be substituted for any state forms. Most states will require a First Report of Injury, or some other form of initial notice, be filed with the state upon an injury being reported.
Third Party Accident Reports
During the course of an investigation, an employer should be mindful whether there are accident reports that would be prepared by an outside source, or whether additional reporting is necessary beyond the State’s reporting of a work related injury. If an employee is involved in an auto accident, it is likely that a police department would complete an accident report following its investigation. A copy of the accident report should be secured as part of the investigation.
Additionally, an employer may have obligations to report a workplace injury to outside organizations, including OSHA, or the corresponding state agency for OSHA. While certain employers may be exempted based upon the size of their organization, all employers must report fatalities and multiple person injuries (with three or more hospitalizations) to the nearest OSHA office. The report must also be made orally within eight hours of the incident. If the incident that results in a workplace injury is one that could lead to an investigation conducted by OSHA, it is important the employer have documentation of safety protocols, including training of its employees and investigation.
Medical Records
Depending on the state in which the employer is located, the employer likely has the right to secure medical information regarding an injury for which an employee is seeking compensation/benefits. Generally, the doctor-patient privilege does not apply in these situations and records/reports should be provided to the employer/insurance carrier as the payor without a HIPAA authorization signed by the employee.
Some states restrict the ability of employers/insurance carriers to subpoena records from other medical providers, including providers that may have provided treatment to the same body part prior to the work injury. Regardless of whether a subpoena is able to be issued, if an employee will agree to execute a HIPAA authorization, the medical provider should produce the records upon request. As the rules applicable to gathering medical records vary from state to state, it is important to be familiar with the state laws where the employer is located.
Steps of Investigation
Obtaining statements
Often, when a case actually proceeds to litigation, a significant amount of time has passed resulting in memories fading, or witnesses no longer being accessible. Therefore, it is important to secure statements from the injured employee, as well as any witnesses, at the time of the incident in order to preserve their recollection. Consideration of whether to obtain a written or recorded statement should be made consistent with the evidence rules used by the respective state’s worker’s compensation system. If a written statement is obtained, the employee and/or witness should sign and date the written statement in order to be able to authenticate it during the course of litigation.
Photographs/Videos
After an incident has occurred, the area should be secured and any photographic evidence should be obtained. Obviously, this is not a necessary step with regard to every injury reported, but careful consideration of whether photographic evidence would be pertinent should be made during every investigation. For example, if an employee is claiming to be injured by a piece of machinery, a dispute may arise as to the location, set up and use of the machinery and whether the mechanism of injury as reported by the employee is consistent with the claimed injury. Photographs of the area can be helpful to assist a medical doctor in determining whether the mechanism of injury could have caused the injury being claimed. Field investigators can be retained to secure photographic evidence of the area of injury who are skilled and experience in securing this information, particularly in the event of severe injuries/death.
In addition to photographic evidence, any surveillance video of the incident, or the area in which the incident occurred should be preserved. The video should be removed from the surveillance area and kept in a secure location to avoid taping over the surveillance and/or erasing of same.
Finally, any diagrams of the facility or area where the injury occurred can be useful to depicting how an incident could have or could not have occurred. The diagrams do not necessarily need to be formal plans, even a drawing by the person conducting the investigation, or by the employee claiming injury, can be helpful.
Drug Tests
Employers may require drug testing of its employees after an alleged workplace injury occurred. Some employers may be required by law to conduct drug tests, whereas other employers may want to include mandatory drug testing as a part of its regular investigation policy. Consideration of various state laws regarding mandatory drug testing, as well as federal laws and regulations, must be taken to avoid violations.
Violations
An employer should keep in mind that employees may file complaints/reports with OSHA regarding safety violations of the employer and can do so anonymously. Thus, a robust safety protocol being implemented can be useful so the employer is not forced to accept liability for a workplace injury, and defending against OSHA violations, when they should not be forced to otherwise.
To the contrary, any safety violations of the employee, whether at the time a workplace injury occurs or otherwise, can be helpful in defending against a claim. An employer should regularly document any safety violations of its employees and implement consistent discipline policies for such violations.
Utilizing Investigation Results
Establishing Defense to Claim
Once a claim enters litigation, the full results of a properly conducted and thorough investigation can be essential to the attorney to establish defenses to the claim. The employer cannot be relied upon to be an expert in all defenses available to them, thus gathering as much information at the outset of the claim will assist counsel in establishing a defense strategy, as well as evaluating exposure.
Minimizing Exposure
A properly conducted investigation is effective in assisting whether a claim is compensable, but also can provide useful information to further minimize the employer’s exposure for paying worker’s compensation benefits. Therefore, even if the claim is clearly compensable at the outset, an investigation can still uncover information that may limit an employer’s obligation to provide certain medical treatment, lost time benefits, or aid in the resolution of a claim via settlement.
Preventing Future Claims
An employer can use results of thorough investigations to make necessary changes to its safety protocols to avoid future injuries. An investigation may reveal that employees need additional training, new safety protocols or equipment, or changes in procedures of how certain tasks are performed to further prevent injuries by other employees.
By: Libby Valos Moss, Attorney at Kightlinger & Gray, LLP