Two Laws are better than one – for Work Comp Problems OSHA and ADA

For the employer, solving persistent problems in work comp is a matter, it is assumed, for the broker, the agent, the carrier or TPA, the WC Board or an attorney – but never the employer. In recent decades, the problems have grown more complicated, due to additional laws such as OSHA and ADA. 

Few people in work comp, however, are asked to be sufficiently involved in OSHA or ADA to have deep insight into the possibilities of coordinated action. Literally nothing has been written on the subject, since it was assumed that such a subject did not exist. 

It comes as a surprise, therefore, that two pressing problems in work comp can be solved by using two federal laws which, at first, seem to have little direct interaction with work comp. The first problem is obtaining an early IME exam following an injury, the second is proper structure of and incentives in a return to work program following extensive lost time. 

A comp carrier, or TPA, finds it difficult to impossible to have an independent medical exam of an injured worker take place in less than four to six months from date of accident. The normal process of a comp claim does not automatically call for an early exam. Even if it does, Board rules and procedure, plus scheduling with a doctor, mean months of waiting. 

However, if an employer could schedule an IME in the first week or so the entire course of the comp claim would be different.

Recently, attention was focused on a section of OSHA, 29 CFR 1904.5, which describes a wide variety of conditions which do not have to be reported on Form 300. But it requires a med exam, with prior med records, to decide if a reported condition is covered by the section. An employer, therefore, would be allowed to schedule a prompt exam and request HIPAA releases for prior medical records. Furthermore, a carrier or TPA would NOT be permitted to schedule such an exam, since they cannot act outside the comp law. 

Similiarly, prior to a trial return to work, an employer may schedule, under ADA, an exam to see if accommodations are necessary. Again, HIPAA releases can be required. 

In both cases, the exam records and results are not part of the comp record. And the costs are not added to the comp claim, or the experience modifier. However, with proper procedure and use of a subpoena, they may be released and used in the comp claim. 

Why do such exams have a positive effect on comp claims? Why are they any different from an exam scheduled by a carrier or TPA? The answer lies in “employer involvement”. Most workers are surprised, and troubled, to discover that the employer has a much smaller role in comp than they imagine. A carrier, usually unknown until  an accident, is, and remains, a remote stranger who speaks in incomprehensible terms and is never seen. 

After a workplace accident, the first question asked of a worker by the spouse is, “What did the employer do for you?” If the answer is “Nothing.” morale plummets. If, on the other hand, the employer remains involved, even to the point of scheduling an exam, workers, and their families, are reassured. A worker, who is exaggerating, or falsifying, a report, also takes notice of such uncharacteristic concern by the employer and rethinks further efforts to overstate an injury. 

OSHA and ADA are, however, just the tip of the iceberg in coordinating defense of claims. FMLA, short-term disability, SSDB and ERISA also have little explored features for defense. 

The benefits, for the employer and employee, of imaginative coordination are impressive. Claims which formerly resulted in years of lost time can be limited to a few months. Unworthy claims can be substantially reduced - but only if the employer takes the trouble to be involved. This is one effort that cannot be delegated.    

Theodore J. Ronca, Esq.                                                                          
(631) 722-2100
Aquebogue, NY