Presented By: Gregory B. Cairns, Esq. Ruegsegger Simons Smith & Stern, LLC 303-575-8084 [email protected] THE TOP 10 INGREDIENTS OF A SUPERLATIVE WORKERS’

Presented By:Gregory B. Cairns, Esq.

Ruegsegger Simons Smith & Stern, LLC

[email protected]

THE TOP 10 INGREDIENTS OF A SUPERLATIVE

WORKERS’ COMPENSATION PROGRAM

CAR Annual MeetingSaturday, January 30, 2010PPA Event Center2105 Decatur StreetDenver, CO

Mr. Cairns’ practice focuses on workers’ compensation defense and related employment law. Mr. Cairns attended the University of Wisconsin at Madison where he received a Bachelor of Arts degree with honors in Psychology in 1975. He also attended the University of Wisconsin at Milwaukee where he pursued a Master's in industrial psychology. Following graduate school, he obtained his law degree from the University of Texas at Austin in 1982. Mr. Cairns has been licensed to practice law in the State of Colorado since 1982.

Mr. Cairns has twenty-six years of experience as a defense attorney in matters relating to workers' compensation and employment law. He has published several articles in The Colorado Lawyer concerning employment issues and pre-judgment interest, and has been a frequent speaker concerning workers' compensation, pre-employment testing, the American with Disabilities Act of 1990, and the Family and Medical Leave Act of 1993. He has taught basic legal research in the paralegal training programs for Metropolitan State College in Denver and the Denver Paralegal Institute. In addition, he is the founder and principal instructor for The Center for Workers' Compensation Training, a private occupational school.

Mr. Cairns, who hails from Wisconsin, currently practices as Special Counsel with Ruegsegger Simons Smith & Stern, LLC, in Denver, Colorado.

Biography:

Gregory B. Cairns, Esq.RUEGSEGGER SIMONS SMITH & STERN, LLC1401 Seventeenth Street, Suite 900Denver, CO 80202(303) 575-8084 - direct line(303) 623-1141 - [email protected] - email

mailto:[email protected]

LEARNING OBJECTIVES

Learn recent statutes and case law which affect those ingredients

Discuss the operational aspects of those ten ingredients

Learn the ten ingredients of a superlative workers’

compensation program

INGREDIENT 1: Safety First!






Best trained, least casualties


Safety Rule Violations



A driver who fails to wear a seat belt and is injured while working:

a. Violates state law

b. Forfeits 50% of his or her non-medical workers’ compensation benefits

c. May forfeit all of his or her temporary total disability benefits if he is terminated

d. a & b

e. All of the above

INGREDIENT 2PRE-EMPLOYMENT PHYSICAL TESTING

Job Demonstration &/orPhysical Agility Test

Not Hiring... Hiring...

Job Seeker entersEmployment Office

Job Seekerdeparts

Hiring Flow Chart

Employment applicationcompleted

Review applicant’seligibility

ApplicantRejected

HonestyScreen

SuitableNot Suitable

ApplicantRejected

Not Suitable

ApplicantInterviewed

ApplicantRejected

DocumentReason

Not Suitable

Conditional Offerof Employment

Medical Questionnaire

Pre-offer

Post-offer“Window”

Post-Offer Medical Tests: Drugs, Psych,Comprehensive &/or

Functional

OfferWithdrawn

DocumentReason

ApplicantAccepted

PAT &/or Medical Exams“Consistent with

Business Necessity”

Suitable

Suitable

Not Qualified Qualified

Post-Placement

Test For Illegal Drugs

All Rights ReservedGregory B. Cairns, Esq.

DocumentReason

DocumentReason



INGREDIENT 2

Which of the following are true about pre-employment medical testing conducted post-offer/pre-placement (POPP)?

a. An applicant who willfully misleads a prospective employer about their ability to safely perform the job forfeits 50% of his/her non-medical benefits

b. The odds of an injury during a carefully conducted POPP test is less than 1 in 100,000

c. If an applicant is injured during a POPP test in Colorado, the event will probably be considered a workers’ compensation injury

d. A comprehensive medical questionnaire and exam conducted post–offer/pre-placement usually costs less than $150 per applicant

e. All of the above

f. a & c

g. a, c & d

PRE-EMPLOYMENT PHYSICAL TESTING

INVESTIGATION AND REMEDIATION

INGREDIENT 3


INGREDIENT 3


Rule of Five

INGREDIENT 3

INGREDIENT 3

Which of the following are true regarding accident investigation?

a. OSHA may require it

b. An employer needs to do it quickly because its carrier has only 20 days to admit or deny on the claim

c. An employer needs to do it before the claimant gets an attorney

d. None of the above

e. All of the above


INGREDIENT 4SUPERLATIVE DOCTORS

Choice of at least two

INGREDIENT 4SUPERLATIVE DOCTORS

D-Dedicated

O-Objective

C-Compassionate

T-Trained

O-Open-minded

R-Reliable

S-Sensible

INGREDIENT 4

D-Dedicated

O-Objective

C-Compassionate

T-Trained

O-Open-minded

R-Reliable

S-Sensible

SUPERLATIVE DOCTORS

D-Dedicated

O-Objective

C-Compassionate

T-Trained

O-Open-minded

R-Reliable

S-Sensible

INGREDIENT 4

With respect to designation of medical providers post-injury, which of the following are true?

a. An employer must designate at least 3 doctors or clinics right away

b. If a claimant wants to change doctors, he/she must do so within 90 days and before maximum medical improvement or lose that right forever

c. A request for change of physician, whether verbal or written, must be addressed in 20 days from the request or it will be automatically granted

d. None of the above

e. All of the above

f. a & b

g. a & c

SUPERLATIVE DOCTORS

CREATIVE AND AGGRESSIVE RETURN TO WORK PROGRAMS

INGREDIENT 5

INGREDIENT 5CREATIVE AND AGGRESSIVE RETURN TO WORK PROGRAMS



INGREDIENT 5

With respect to return to work programs, the following is/are true?

a. Claimants who are off work 6 months or more are likely to be permanently and totally disabled

b. An offer of modified duty employment which is refused means that the claimant will receive no temporary benefits

c. If you take a claimant back to work, the job must pay the same as before injury

d. All of the above

e. a & b

f. b & c

CREATIVE AND AGGRESSIVE RETURN TO WORK PROGRAMS

INGREDIENT 6INTEGRATED DISABILITY

MANAGEMENT

INGREDIENT 6INTEGRATED DISABILITY

MANAGEMENT

Mission Statement

Ombudsman

Injury Hotline

Follow-up

Return to Work Program

Short-term money solutions

Effective Attorneys

INGREDIENT 6

Some of the components of meaningful “integrated disability management” include the following:

a. Regular communication with the claimant to ensure that his/her questions are answered

b. Dedication to making sure that the claimant gets some kind of money while they are recovering (if eligible)

c. A smart employer representative who can “cut through red tape” to get applications for benefits processed as quickly as possible

d. All of the above

e. a & c

INTEGRATED DISABILITY MANAGEMENT

INGREDIENT 7 EXCELLENT CASE MANAGEMENT

INGREDIENT 7 EXCELLENT CASE MANAGEMENT

Designate excellent physicians who know the workplace.Set up the employer’s medical network/managed care system in advance of a particular case.Utilize treatment guidelines.Create inventive return to work programs.Designate patient advocates.Arrange for medical case management if the treatment physician cannot effectively provide it.Use competent translators.Use private and independent medical examinations intelligently.Require coordination of human resources/workers’ compensation department.Request utilization reviews when treatment gets out of hand.

INGREDIENT 7

Which of the following would be a good idea to do to make sure that you have good communication with your work comp adjustor:

a. Send them regular e-mails asking what is happening on the claim

b. Communicate any suspicions you have about the credibility of the claimant

c. Ask the claimant how things are going on the claim

d. All of the above

e. a & b

EXCELLENT CASE MANAGEMENT

INGREDIENT 8

REALISTIC LITIGATION AND SETTLEMENT PHILOSOPHY

INGREDIENT 8


INGREDIENT 8


INGREDIENT 8


INGREDIENT 8

Which of the following litigation philosophies is recommended if an employer wishes to reduce workers’ compensation costs:

a. Fight every claim as though it were fraudulent

b. Pay every claim as soon as it is filed, in full

c. Admit for the valid claims, fight the fraudulent with everything you have, and keep the greedy claimant limited to that what is fair

d. Delay admission on claims until every piece of medical evidence is collected and analyzed


INGREDIENT 9

ADMINISTER FITNESS FOR DUTY EXAMS BEFORE RETURN TO WORK

Job Demonstration &/orPhysical Agility Test

Not Hiring... Hiring...

Job Seeker entersEmployment Office

Job Seekerdeparts

Hiring Flow Chart

Employment applicationcompleted

Review applicant’seligibility

ApplicantRejected

HonestyScreen

SuitableNot Suitable

ApplicantRejected

Not Suitable

ApplicantInterviewed

ApplicantRejected

DocumentReason

Not Suitable

Conditional Offerof Employment

Medical Questionnaire

Pre-offer

Post-offer“Window”

Post-Offer Medical Tests: Drugs, Psych,Comprehensive &/or

Functional

OfferWithdrawn

DocumentReason

ApplicantAccepted

PAT &/or Medical Exams“Consistent with

Business Necessity”

Suitable

Suitable

Not Qualified Qualified

Post-Placement

Test For Illegal Drugs

All Rights ReservedGregory B. Cairns, Esq.

DocumentReason

DocumentReason

INGREDIENT 9


INGREDIENT 9


INGREDIENT 9

With respect to fitness for duty testing for employees coming back to work after absence, including from work comp injuries, which is true

a. If the employee was eligible for FMLA leave, the employer better not attempt fitness for duty testing unless they have a written policy about it

b. The fitness for duty exam can be broad ranging in terms of medical questions and tests

c. An injury during a fitness for duty test is going to be considered a workers’ compensation injury

d. If the employee fails the test, you can automatically fire him or her

e. All of the above

f. None of the above

g. a & c


INGREDIENT 10

CAUTIOUS TERMINATION

Give Your Employees A Fair

SHAKE:A Simple Plan for Evaluating An Employee’s Ability to

Return To Work After Illness or Injury

S Solicit the Employee’s Request

for Accommodation (even if they are not covered by the ADA)

H Hear Them Out

A Analyze the Employee’s Requests

and All Options for Return to Work

Issues to Analyze

1. ADA Eligibility

2. FMLA Eligibility

3. Medical Stability (Maximum Medical Improvement)

4. Permanent Restrictions

5. Conditioning

6. Job Modification

7. Ergonomic Training and Fitting

8. Job Transfer

9. Time Off Without Pay

10. Last Chance Agreements

11. Accommodation Committee (including peers)

12. Safety Contract

13. Benefits Available, e.g., Unemployment Compensation, LTD, SSDI, etc.

14. Termination After Exhaustion of All Other Options

Give Your Employees A Fair

SHAKE:A Simple Plan for Evaluating An Employee’s Ability to

Return To Work After Illness or Injury

S Solicit the Employee’s Request

for Accommodation (even if they are not covered by the ADA)

H Hear Them Out

A Analyze the Employee’s Requests

and All Options for Return to Work

K Kindly Deliver Your Decision

E Evaluate the Results of Your Decision

(Repeat Steps S-H-A-K above, as necessary)

INGREDIENT 10


Process everythingBring a witnessSpeak softlyDon’t argueKeep the meeting briefBe preparedDon’t touchPromise to memorializeIf necessary, arrange to have the employee escortedDocument

INGREDIENT 10

Which of the following is NOT a good idea when it comes to firing someone:

a. Have good reasons well documented in a termination letter that you hand the employee

b. Let the employee defend themselves but stick firm with the decision

c. Be sure to comfort the employee through this traumatic event

d. Forget about trying to accommodate him or her if you have no available positions in their regular position

e. All of the above

f. b & cg. b, c & d


How did you do?

A driver fails to wear a seat belt and is injured while working:

Correct answer: eWhich of the following are true about pre-employment medical testing conducted post-offer/pre-placement (POPP)?

Correct answer: eWhich of the following are true regarding accident investigation?

Correct answer: eWith respect to designation of medical providers post-injury, which of the following are true?

Correct answer: aWith respect to return to work programs, the following is/are true?

Correct answer: e

Some of the components of meaningful “integrated disability management” include the following:

Correct answer: dWhich of the following would be a good idea to do to make sure that you have good communication with your work comp adjustor?

Correct answer: dWhich of the following litigation philosophies is recommended if an employer wishes to reduce workers’ compensation costs?

Correct answer: cWith respect to fitness for duty testing for employees coming back to work after absence, including from work comp injures, which is true?

Correct answer: gWhich of the following is NOT a good idea when it comes to firing someone?

Correct answer: g

How did you do?

THE END

Documents

Presented By: Gregory B. Cairns, Esq. Ruegsegger Simons Smith & Stern, LLC 303-575-8084 [email protected] THE TOP 10 INGREDIENTS OF A SUPERLATIVE WORKERS’