In every state, two investigative forms have an enormous impact on helping employers save money and win cases in workers' compensation: first, a detailed Employee Accident Form filled out entirely by the injured employee and signed by the employee, and second, a detailed Supervisor's Report Form. This practitioner has tailored both forms for the use of firm clients. I have written extensively in the past about the enormous value of an effective Employee Accident Form, and this blog will explore why a Supervisor's Report Form also helps win cases and reduces workers' compensation costs. Clients who use both forms have enhanced their chances of prevailing geometrically.
Many employers traditionally have a combined one-page form for the supervisor to fill out one section and for the employee to fill out another section. Sometimes the supervisor writes what the employee tells him or her, and then the employee only signs the form. This is not effective in court because the employee can reject what the supervisor wrote as inaccurate. It is always better for the employee to complete the Employee Report in his or her own handwriting. It is also hard to tell if the supervisor is writing what he or she thinks or what he or she was told. The abbreviated Supervisor's Form will ask “How did the accident happen?” and the supervisor may write: “Employee slipped on ice.” Much later it may become clear to defense counsel that the supervisor really did not think this accident ever happened. He wrote just what the employee told him, but the form had no place for the supervisor to raise doubts. So cases get accepted, bills get paid, and surgery ensues when all of this should have been denied. In short, these abbreviated forms are like an appetizer to an entrée. You get much more out of two separate and detailed forms filled out as close as possible to the time of the incident.
So what makes an effective Supervisor's Report Form? To ask it another way, what information should an employer strive to obtain in a supervisor's form that will help prepare the defense of a workers' compensation claim and often help win the claim? In this practitioner's view, these are the essential elements in a powerful Supervisor's Report Form:
Information that would determine if there is a notice defense or late reporting issue;
Detailed information on the time, date and mechanism of injury;
A list of witnesses to the incident, if any;
Detailed information on what others saw or were told by the employee about the incident or accident;
Specific information about the employee's job duties generally and on the date of the incident;
Information on second jobs or other physical activities engaged in by the employee in the years prior to the incident or accident;
Information on motor vehicle accidents, home injuries or sports injuries that the employee was involved in during the past few years;
Information on whether the employee was offered or declined medical attention.
All of this information – and more — can be easily captured within two pages, and this approach can be used in any state. But in states like New Jersey, where there are no depositions or interrogatories permitted in traumatic claims, a comprehensive Supervisor's Report Form is imperative! This form and the Employee Accident Form will often be the only useful discovery that employer will ever get in many cases. For employers with a high volume of comp claims, using these two forms will consistently lead to success because patterns develop, and supervisors become more adept at understanding the workers' compensation process. The carrier, TPA, self-insured employer and defense counsel will be able to make intelligent decisions on whether to deny the claim or accept it, and if denied, how to win the case and not pay for unrelated surgery, lost time and permanency benefits.
There are no reliable statistics on how many comp claims involve some kind of legal issue as opposed to clearly witnessed accidents where there really are no issues other than the extent of permanency. This practitioner believes that perhaps fifty percent to two thirds of claims are unwitnessed or are questionable because the injured employee was known by the employer to have the health condition prior to the accident, or the mechanism of injury simply makes no sense. These are the kinds of claims that bedevil employers and can wreck budgets and explode reserves. Most employers know their employees pretty well and have an instinctive sense when there is something wrong with a claim. Defense attorneys get litigation files well after the claim occurs, and they pore over the supervisor's report form, only to conclude that there just is far too little information on the form to win the case. Memories fade quickly, and any claims professional or defense lawyer knows how hard it is to resurrect the facts of a claim with a supervisor or witness in a discussion that occurs 12 or 24 months later.
The solution is simple: require a few extra minutes to obtain a more detailed series of questions right up front. Some of the 22 questions on this practitioner's two-page form require simple yes or no answers, such as “Did you personally observe the incident involving this employee?” and “To your knowledge, was this accident witnessed or unwitnessed?” Some of the questions require a few sentences of description: for example, “If you did not witness the incident but others told you about it, describe exactly what they told you, who spoke with you, and what that individual said.”
How much does this cost to implement? The answer is it costs nothing. This is what it requires: an extra two or three minutes to complete over the traditional one page form. In exchange for an investment of two or three more minutes, employers get a useful form that paints a clear picture of whether the claim should be denied, whether there are strong defenses, and who the witnesses will be to help the employer win the case. It doesn't matter what state the employer is in, as this approach is universal. There is no training required for supervisors because this kind of supervisor's form must be self-explanatory and simple.
Clients of Capehart who are interested in reviewing this practitioner's Employee Accident Form or the Supervisor's Incident Report Form should contact the undersigned.
ABOUT THE AUTHOR
John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers' Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. To visit his New Jersey Workers' Comp Blog, click here.
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