The Importance of Supervisors’ Roles and Responsibilities Bryan J Richardson VHA National Workers’ Compensation Program Manager & Kristin Coyle VISN 1 Lead WC Specialist 510,423 323,728 $510,423 per day VHA workers’ compensation chargeback in CBY 2013 $323,728 per day Portion of VHA chargeback that relates to disability wage loss LOST PRODUCTIVITY! Objectives At the end of this session, you will better understand: Impact your role has on injured employees, mission, and cost to your organization How you as a supervisor can prevent employee injuries Importance of thorough investigations of all incidents How to communicate with workers’ compensation staff Your role in return-to-work management Timekeeping practices for injured employees How to protect information related to on-the-job injuries Impact of Workers’ Compensation Impact of Workers’ Compensation Employee Self Actualization Personal Growth & Fulfillment Esteem Needs Self Esteem, Self Respect, & Self Confidence Belongingness & Love Friendship, Intimacy, & Family Safety Needs Personal, Financial, Health, & Well Being Biological and Physiological Needs Basic Necessity– Air, Food, Drink, Shelter, Warmth & Sleep Maslow’s Hierarchy of Needs Impact of Workers’ Compensation Agency Mission • • • • • • Staff reductions when employee is disabled from work Over-hiring when employee is out for 365 days Additional HR activity to ensure entitlements to injured workers Overtime requirements for healthy employees LOSS OF PATIENT CARE RESOURCES INABILITY TO SERVE OUR VETERANS THE BEST WE CAN Impact of Workers’ Compensation Agency Budget • Chargeback Costs • Continuation of Pay • Indirect Cost Impact of Workers’ Compensation Chargeback Costs • Employees Compensation Fund (Congressional Appropriation) • • • DOL-OWCP pays medical bills and compensation on accepted claims DOL-OWCP charges back the cost to the Agency every year, including an administrative fee Agency has two fiscal years to pay the bill • • • Repayment is returned to the Employees Compensation Fund Funds future year payments from Employees Compensation Fund Each Administration pays its share of the cost Impact of Workers’ Compensation Continuation of Pay • • • • FECA provides that the employer must continue the employee's regular pay during any periods of resulting disability, up to a maximum of 45 calendar days. Entitlement to 45 days must start within 45 days from DOI Employer paid at 100% of the employees salary which is subject to taxes and all other payroll deductions that are made from regular income. The employer, not OWCP, pays COP. Impact of Workers’ Compensation Continuation of Pay (COP) Employer has the right to ‘controvert’ COP entitlement If a claim is denied by OWCP, COP is rescinded, Employee must elect AL, SL or LWOP in lieu of COP Employees are not automatically entitled to COP Eligibility requirements apply • • • Must file a CA-1 for a traumatic injury Claim must be filed within 30 days from the date of injury Must have lost time within 45 days from injury Impact of Workers’ Compensation Indirect Cost • Overtime – Results in 2.5 times salary for same service • • • Replacement receives overtime Injured employee receives COP or disability compensation Over-hiring – Recruitment, on-boarding, & Training Approximately 27% of employee salary WC Program Importance WC Program Importance Did you know that long-term disability recipients… • • Receive up to 75% of their salary – TAX FREE when on compensation? Receive Cost of Living Adjustment(COLA), or raises while Federal wages are frozen? • • • Based on CPI - inflationary indicator that measures the change in the cost of a fixed basket of products and services. For 2013, the CPI increase was 1.7% May be exempt from paying mortgages or car loans • If employee pays for disability insurance on their own. WC Program Importance Your roles and responsibilities to the WC Program • • • • • • • Pre-Injury responsibilities Investigation of incidents Communication with workers’ compensation staff Timely completion and forwarding of claim forms Proactive participation in return-to-work efforts Appropriately document injury-related timekeeping Protecting workers’ compensation data Pre-Injury Responsibilities Pre-Injury Responsibilities Eliminating Hazards in the workplace is your BEST method of preventing injuries and illnesses Enforce VA OSH rules, regulations, and standards within your area of responsibility. Identify unsafe and unhealthy conditions and practices in the workplace and take prompt corrective action. Encourage employee suggestions on how to improve Occupant Safety and Health. Pre-Injury Responsibilities Observation of employee work practices and constructive guidance is just as important Ensure employees under your supervision are: • • Trained to perform their work safely and such training is properly documented Aware of the hazards, if any, involved in their normal work functions, and that such training is properly documented. Initiate progressive disciplinary action, as appropriate, against employees who repeatedly violate safe work practices and procedures. Pre-Injury Responsibilities Near Miss incidents serve as a ‘dress rehearsal’ for injuries and illnesses in the workplace “There is one Serious Injury for every 600 near miss incidents” Frank Bird – US Safety Researcher Investigation of Incidents Investigation of Incidents Supervisor • Gather facts related to the incident • Obtain witness statements if necessary • Communicate findings to Safety and WCP staff • Complete VA Form 2162, Incident Report within 3 working days. Safety Officer • Designated point of contact for secondary incident investigation • Serves as consultant in work-related accident investigations. The WCP staff • Collaborates with employee, supervisor, and Safety • Determines relevant facts of the case • Transmits the case to DOL, if appropriate Investigation of Incidents Office of Workers’ Compensation Program (OWCP) • Exclusive authority to administer, interpret and enforce FECA • Sole adjudication authority for FECA processes • When an employee disagrees with a decision made by OWCP, they may appeal to OWCP • Liability under FECA is exclusive and instead of all other direct judicial proceedings, civil actions, or under a Federal tort liability statute. Investigation of Incidents Step 1: Determine if emergency treatment is required! Ensure that employees under your supervision receive prompt and appropriate medical attention in the event of an injury or illness. Such medical services are offered—not mandatory. Investigation of Incidents Step 2: Gather facts related to the incident Determine causal and contributing factors • • Causal Factor - Any behavior, omission, or deficiency that if corrected, eliminated or avoided probably would have prevented the incident or injury. Contributing Factor - Any behavior, omission, or deficiency that sets the stage for an incident or increases the severity of injuries or extent of property damages. Identify necessary corrective actions Investigation of Incidents Investigating for Causal and Contributing Factors Who – Was involved or witnessed? What – Occurred or was seen? Where – Did it occur, and where were witnesses? When – Did this occur or when was it reported? Why, Why, Why, Why, Why? Any other factors relative to the incident? Investigation of Incidents Step 3: Document investigation on VA Form 2162 Step 4: Determine OSHA Recordability Step 5: Collaborate with WC staff on findings Step 6: Implement corrective actions Investigation of Incidents Implement Corrective Actions Correcting hazards prevents future injuries and illnesses! Communication with WC Staff Communication with WC Staff Your facility WC staff has no authority to accept or deny workers’ compensation claims However, they are able to provide objective evidence of dispute for consideration by the OWCP Findings from your incident investigation may either support or refute an employee’s statement on CA-1 or CA-2. Communication with WC Staff Disputing an employee’s claim WC staff submits a letter of dispute to OWCP • • • Describe the factual allegation or argument to support disagreement Provide evidence or argument to support the agency’s position Include supporting documents such as witness statements, medical reports or records, or any other relevant information. Timeliness is key! Dispute must be submitted to OWCP: • • CA-1: With the notice of traumatic injury or death CA-2: Within 30 calendar days from the date notice of occupational disease or death is received from the claimant. Communication with WC Staff Disputing an employees claim (continued) If a letter of dispute is not submitted appropriately, OWCP may accept the claimant's report of injury as established. A disagreement with an aspect of the claimant's report is not cause to: • • Delay forwarding the claim to OWCP Compel or induce the claimant to change or withdraw the claim. Communication with WC Staff Discussion Points with WC Staff Has employee established burden of proof – 5 Elements? 1. 2. 3. 4. 5. Timely Filed (3 year statue of limitations) Employee of the United States Fact of Injury Performance of Duty Causal Relationship Communication with WC Staff Fact of Injury may be questioned if: • Employee statements and investigation findings are inconsistent • Evidence of a previous injury to the same part of the body • There is a delay in reporting the injury • You have knowledge of other employment or reserve duty • There are documented past violations of safe work practices • Notification of misconduct or pending termination was given • Leave requests during injury period have been denied Communication with WC Staff Performance of Duty may be questioned if: • • • • • • • The injury occurred outside of working hours The employee was not performing assigned duties at the time of injury The injury occurred off premises? The injury occurred during a recreational activity Horseplay, willful misconduct were involved Injury was a result of a vehicular accident Injury was the result of an assault Communication with WC Staff Employees are considered to be in the Performance of Duty on premises including steps, sidewalks and parking lots owned, controlled or managed agency: • • During work hours and/or on breaks Outside working hours • • • Usually considered 30 minutes before or after working hours Not extended to employees who are visiting the premises for non-work-related reasons. Performing representational functions entitling them to official time are covered. • Injuries to employees engaged in the internal business of a labor organization are not covered. Communication with WC Staff Causal Relationship is a medical determination usually addressed by the OWCP Claims Examiner. Communicate with the WC staff if you have concerns that the medical condition identified by the employee is not causally related to the claimed injury. The following Statutory Exclusion should also be addressed with the WC staff • Willful misconduct • Alcohol or drug impairment involved • Intent to injure self or others Communication with WC Staff In cases of work-related employee death Notify the Facility Workers’ Compensation Office immediately to report a death due to a work-related traumatic or occupational disease-facility workers’ compensation office will notify OWCP immediately via telephone or fax Complete form CA-6, Official Superior’s Report of Employee’s Death, immediately so facility workers’ compensation office can submit to OWCP within 10 workdays from notification Claim Initiation Process Claim Initiation Process Supervisor WC Staff Provide Guidance and Counsel to Injured Employees Communicate Employee Rights and Responsibilities Provide Notice of Choice of Physician Provide Release of Information Document Investigate Incident Dispute Questionable Claims Emergency Treatment (if needed) Authorize use of CA-16 Respond to Development Letters & Requests from OWCP timely Ensure Leave Requests are Made Authorize use of COP if applicable Periodically Check on Employee Track OWCP Pending Actions Injury-Related Timekeeping Supervisor WC Staff Ensure Entitlement to COP Ensure Leave Requests are Made Track COP Day Count Ensure Appropriate Leave is Used Authorize Requests for COP Forward Medical to WC Staff Controvert COP when applicable Notify Employee of Controversion Notify Employee when Controversion Upheld Request Election of Other Leave Rescind COP when Case Denied Review COP Cost for Facility Claim Initiation Process For Traumatic Injuries: Advise the injured employee of his or her right to file for workers’ compensation benefits using Form CA-1. Complete the required fields of the VA 2162, the Incident Report within 5 days. Complete the required fields of the supervisory portion of the Form CA-1 within 3 days of signing by the employee. Do not delay injury claim completion while waiting for other documents or disputes to be completed. Claim Initiation Process A claims is not complete until: Employee has electronically signed Supervisor has electronically signed The claim form has been printed and both the employee’s and supervisor’s wet ink signature has been obtained A claim will not be transmitted/submitted to OWCP without wet ink signature Claim Initiation Process Here’s the fine print: No employer or other person may require an employee or other claimant to enter into any agreement, either before or after an injury or death, to waive his or her right to claim compensation under the FECA. No waiver of compensation rights shall be valid. 20 CFR 10.15 A number of statutory provisions make it a crime to file a false or fraudulent claim or statement with the government in connection with a claim under the FECA, or to wrongfully impede a FECA claim. See 20 CFR 10.16, Title 18 U.S. C. section 287, 1001. 1920, and 1922. Administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-12, to impose civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under FECA. 29 CFR Part 22 Claim Initiation Process 18 U.S.C. 1922 - False or withheld report concerning FECA Whoever, being an officer or employee of the United States charged with the responsibility for making the reports of the immediate superior specified by section 8120 of title 5, willfully fails, neglects, or refuses to make any of the reports, or knowingly files a false report, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under subchapter I of chapter 81 of title 5 or any extension or application thereof, or willfully retains any notice, report claim, or paper which is required to be filed under that subchapter or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both. Return to Work Management Return to Work Management Supervisor WC Staff Identify Transitional Job Duties Provide Written Job Offer Monitor Transitional Duty to Ensure Restrictions are not Exceeded Notify WC of Updated Restrictions Update Written Job Offer Provide Release of Information Document Monitor any Leave upon RTW Monitor Medical for RTW Changes Notify WC Staff-IOD Leave Used Request Medical to Support Leave Return to Work Management Transitional duty must be made available to injured employees The transitional assignment must be provided in writing to the injured employee with the option of accepting or declining the offer. (initial in verbal is okay- f/u with written.) Transitional duties should align with medical restrictions. Transitional job offer should not exceed 90-120 days without modification—This depends on severity of the injury. Return to Work Management When medical restrictions are received from the physician, you will be asked by the WC staff for the following information: 1. Description of duties to be performed 5. Date that the job is available 2. Physical requirements for those duties 6. Work schedule for the job 3. Location where job will be performed 7. Date response to job offer is due 4. Salary information for transitional job 8. If moving expenses will be paid Return to Work Management Notify your Facility Workers’ Compensation Office immediately if you believe an injured employee is off work as a result of a work injury, don’t take it for granted they are Return to Work Management If a claim is denied by OWCP Notify employee of their right to request reasonable accommodation within 30 days of denial of claim Engage the Reasonable Accommodation specialist at your facility for assistance Return to Work Management Supervisors SHOULD NOT: Send an employee home because transitional duties are not available Allow an injured employee to perform transitional duty without a written job offer Treat injured employees differently than you treat other employees. An injury is not a “get out of jail free” card. Return to Work Management Supervisors SHOULD NOT: (continued) Allow an employee to dictate what duties he or she feels he/she can or cannot do Withhold taking appropriate administrative or disciplinary actions against an injured employee Impede employee’s election to take annual, sick leave or leave without pay for time lost because of a jobrelated injury Return to Work Management Retention Rights – Separation from Agency Rolls Under 5 U.S.C. 8151, an employee who recovers within 1 year of starting compensation has mandatory rights to his or her old position or its equivalent, regardless of whether he or she is still on the Agency rolls If full recovery occurs after 1 year, or the employee is considered partially recovered, he or she is entitled to priority consideration as long as application is made within 30 days of the date compensation ceases Employees incur no loss of benefits which they would have received but for the injury or disease. 5 CFR Section 353, 301, 302, and 303 Protecting Employee Data Protecting Employee Data VA Systems of Record Created or amended as needed to meet the legislative requirements of the Privacy Act of 1974 SORNs (System of Record Notices) are in place to protect employee data. VA Systems of Record DO NOT cover employee workers’ compensation records DOL/GOVT-1 System of Records Protects records relating to claims for benefits filed under the FECA, including any copies maintained by an employing agency This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/GOVT-1 are official records of OWCP. Protecting Employee Data Confidentiality of WC Records All records relating to claims for benefits, including copies of such records maintained by an employer, are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided below: • • • Freedom of Information Act Privacy Act of 1974 DOL/GOVT-1 if such release is consistent with the purpose for which the record was created. Protecting Employee Data Storage and Use of WC Documents Workers’ Compensation related documents must be stored in locked cabinets inside of a locked room The use of the information collected must be connected in some way with the compensation claim Agencies may not use copies of information from claim files for these purposes without written consent of the injured employee: a) In connection with EEO complaints b) Disciplinary actions c) Other administrative actions Protecting Employee Data Employee Right to Representation May appoint one individual to represent his or her interest in the claim process • • Appointment must be in writing There can be only one representative at any one time May authorize any individual to represent him or her in regard to a claim under the FECA • A Federal employee may act as a representative only: • On behalf of immediate family members provided no fee is charged • While acting as an officially sanctioned union official provided no fee or gratuity is charged. 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