When an employee gets hurt at work, or at least claims that they did, it can be a very stressful time for employers. Sometimes the injury is obvious, the employee is not exaggerating, and the employee simply wants to go back to work as soon as possible. Other times there are conflicting stories about whether an injury actually occurred or whether the injury is as severe as claimed.
In addition to following the applicable reporting requirements, there are several things employers can do to help develop a stronger defense.
1. Write Down The Facts
When you find out that an employee intends to file, or has filed a claim for injury, write down all the facts you know. Talk to any witnesses who might have seen the accident happen. If the employee has not retained an attorney, speak with them. Find out what happened, when, what the conditions were, who was present, and any other facts you believe are relevant.
Be objective when you are discussing this. Your role is to gather information, not argue the case. You want to be careful to avoid a situation where your employee could claim that you discriminated against them for filing or threatening to file a workers’ compensation claim. In California, your insurance company has 90 days to admit or deny a claim from the employer’s first date of knowledge, so this information will be very important.
2. Make A Timeline Complete With Relevant Documents
Sometimes a workers’ compensation claim is filed soon after an employee is denied a promotion or raise, is placed under disciplinary warning, or has an interpersonal conflict with a co-worker or supervisor. This information is highly relevant, particularly when many cases filed for injury to other parts of the body systems eventually include a psychiatric component.
In many cases, if a person claims psychiatric injury and the defense can demonstrate that it is at least partially related to a good-faith personnel action, the degree of permanent disability or even compensability of the psychiatric portion can be challenged.
Keep any doctor’s notes, job applications with applicable history, disciplinary warnings, wage information, notes, and other documentation and present it to your claims adjuster or the insurance defense attorney. Include everything you have. A separate timeline will also be useful in defending your claim.
3. Take Photographs
Photographs of the scene of the incident, or alleged incident, taken from various angles can be very valuable in establishing whether a claim is credible. This is particularly true in cases involving vehicle accidents, the use of equipment, or the physical attributes of a building. Without photographic evidence, it is difficult to challenge an employee who might testify under oath or tell his doctors that the ladder was taller, the fall was further, or that something that was physically impossible occurred.
A few years ago, an employee claimed that the vehicle he was driving had struck a forklift, causing severe injury to his left leg and back. He had been terminated soon after for reckless driving and then decided to file his claim.
At deposition, I was able to produce a copy of a “parts cart” on four caster wheels that had simply rolled out of the way when struck. He reluctantly admitted that this cart was the “forklift,” and the case settled for a nominal amount. A simple photograph saved thousands of dollars.
4. Attend The Deposition
If your defense attorney or insurance company schedules a deposition of the employee, if at all possible, you should attend. You will not be asked to testify, or say anything at all on the record, but you can listen to the testimony. Before the deposition, you can consult with the attorney or insurance hearing representative regarding the facts of the case. You know the situation and can provide valuable insights and help clarify any of their questions about the facts or the people involved before the deposition starts.
During breaks, you can speak with them about the testimony, give ideas about what they should ask, and suggest areas that could be clarified with the employee. Your presence will also help the employee realize that their version of facts may be challenged and can encourage them to be more truthful in their testimony. It will also give you an idea of what they may testify to at trial.
5. Keep In Communication
As a workers’ compensation defense attorney, I always appreciate it when employers communicate with me. If you need an update, call your adjuster or attorney. If you learn new facts through the rumor mill that the employee is working somewhere else, or that the facts of the injury are not accurate, let the defense team know.
Of course, the best thing is to avoid injuries in the first place through promoting workplace safety, but when they happen or are alleged, these are a few ways that employers can proactively address these claims.
Michael D. Peabody is a Partner out of B&B’s Woodland Hills office. He can be reached at mpeabody@bradfordbarthel.com.
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