With increasing frequency, I am seeing post-termination claims being filed against employers who otherwise are doing an excellent job providing a safe work environment and comprehensive safety training.
It is impossible to develop statistics on this kind of claim, but anecdotal evidence indicates that there are more of them being filed. A slow economy exacerbates this problem.
It is important that we find strategies that will limit the number of these claims for the following reasons:
- They typically are litigated, so they are incredibly expensive.
- They are discouraging and disheartening to an employer who has cared about the safety of the workers and treated them well.
- The majority of these claims are without substance. "Fraudulent" is a term that should not be used loosely but is very often applicable here.
We never can completely wring fraud and abuse from the workers' compensation system. Soft-tissue claims are virtually impossible to prove or disprove, so we must rely on the injured worker to be honest. That means employers must do everything possible to influence employees to be honest.
Besides getting the terminated employee to sign a waiver that she is injury-free on her last day, here are a few additional recommendations:
- After a layoff has been announced, but before the termination has taken place, honor those people who have worked safely and injury-free during their employment with the company. Adding a small gift card is a way to thank them. By recognizing them and thanking them in a public setting, you show your appreciation, and lack of appreciation is one of the primary reasons that people file fraudulent claims.
- If the soon-to-be laid-off workers are part of a safety team or department, make sure that they are included in any awards or recognition that is given at the end of the measured safety time period.
- Indicate to the workforce that the company policy is to contest and deny any claims that are filed after a layoff or termination. Don't just threaten, do it.
- Gain agreement from your insurance carrier that it will contest any post-termination claim and not simply offer a settlement to have it go away.
- Contact the physician who is issuing the cumulative trauma report and let him know that you intend to contest his finding. Your insurance carrier should be your ally in exposing repeat offenders.
Remember that an injury that occurs after a layoff has been announced, but before the termination takes place, sets up any post-termination claim as legitimate.
Treating employees well and creating the strongest possible safety culture are the best defenses, but incorporating additional strategies can help prevent a discouraging and expensive post-termination claim.
