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Summer 2011 -- We spoke with a very happy HR manager who told us that she had recently closed a litigated workers compensation claim in New York at a saving of tens of thousands of dollars. She was able to do something her insurance company had told her “we could go to jail for that.” She learned about this exciting new idea from Ted Ronca, an attorney on Long Island, whose article below explains this unique application of a right granted by OSHA to employers.

COORDINATING OSHA AND WORK COMP

by Theodore J. Ronca, Esq.

29 CFR 1904.5 describes a number of conditions which need not be reported on Form 300. Examples include heart attacks, unwitnessed accidents, reoccurrences possibly related to old injuries and complaints disproportionate to observed work limitations. However, these excepted conditions often become the basis of workers compensation claims and many end up in litigation due to the tenuous links to work activity.

Implicit in 29 CFR 1904.5 is the necessity of having a medical expert comment on the report of injury and its relationship to the workplace. This also implies that the employer can schedule an IME exam and require appropriate HIPAA releases of prior medical records.

The OSHA medical inquiry is necessary to complete the Form 300. However, this process can extend beyond the time to complete the Form 300 as long as this is noted on the form.

The OSHA IME can be used later on if a workers comp claim is filed. But this OSHA-IME can only arranged by the employer, not a comp carrier or TPA. Claim handlers in New York and other states cannot do this.

An OSHA IME has the additional advantage of starting an appropriate inquiry within days instead of the months it takes to schedule and evaluate similar examinations under varying comp laws. Furthermore, an OSHA examination, since it is in compliance with a separate federal law, is not counted as a work comp IME exam and is not subject to comp laws and regulations – nor does its expense add to the claim cost on the insurance company loss run.

An OSHA exam need not be done on every report of injury – only those that fit the criteria for claims requiring further investigation. The medical report and its conclusions are not automatically added to the comp file. State and federal rules for its release must be followed and may vary from state-to-state.

STEPS TO TAKE

  1. Write a protocol for what sort of reports will receive an OSHA examination.
  2. Line up a panel of medical experts for possible exams.
  3. Prepare to begin the scheduling of exams within days of the filing of the workers compensation first report of injury.
  4. Explain to the worker the purpose of the exam.
  5. If a work comp claim is filed, notify the carrier that an OSHA exam has been done and comply with state and federal laws prior to releasing the OSHA forms and reports.
  6. Copy the worker and/or the worker’s attorney.

For further information, either hit the Contact Us button or give Ted a call at (631) 722-2100. Be sure to ask him about his “Grab and Go Kit,” a set of instructions and pointers for employers.