Attorneys communicate everyday with insurance adjusters regarding workers’ compensation claims. The topics of these conversations can vary widely from questions about how to answer a Petition for Benefits or which doctor to authorize to discussions regarding settlement or proceeding to trial. In contrast, conversations with employers occur much less frequently. A major exception would be if the employer is self-insured. Many self-insured employers take an active role in the defense of a claim and realize the importance of communicating frequently with defense counsel. Communications are of paramount importance especially when both the insurance carrier and the employer are the “client”.
Many times, the participation of an employer in the defense of the claim will lead to a successful outcome. However, smaller employers may be resistant to participating in the claim because of their inexperience dealing with the legal system. Defense counsel should diplomatically express that they would like the employer to “help us help you.” Here are three reasons why the participation of an employer in the defense of a claim is important:
- Employer representatives may be required to provide crucial testimony related to whether an accident or injury occurred. This is especially important when there were no witnesses to an industrial accident. The employer representative’s testimony provides the employer’s side of a case where the judge of compensation claims must decide an issue for which the only evidence is “he said, she said” testimony. Without the employer’s testimony, a legal defense of no accident or injury would most certainly be doomed.
- In the defense of a claim for Temporary Partial Disability (TPD) benefits, the testimony of an employer representative may be necessary when a voluntary limitation of income defense is raised. The employer may be called to testify that a job was available within the injured worker’s restrictions during all times that the injured worker was under a partial disability. The employer representative may be asked to provide testimony or documentation as to the reasons why an injured worker’s post-accident wages fell below 80% of his Average Weekly Wage (AWW) resulting in potential exposure for payment of TPD benefits. Or the employer may be asked to provide testimony that the injured worker unjustifiably quit his job while on light duty restrictions, or that the injured worker was terminated from his employment due to misconduct. Exposure for payment of TPD benefits can be mitigated if the employer representative’s testimony establishes that the reason for the injured worker’s wage loss is unrelated to the compensable injury.
- To prove the injured worker’s AWW, the employer representative may be asked to provide pre-accident payroll records along with documentation related to the employer’s contribution toward the premiums of the injured worker’s health insurance benefits or other employer provided fringe benefits. Accurate documentation from the employer can quickly neutralize any issue related to the correct calculation of the injured worker’s AWW.
Communication with employers to obtain necessary testimony and documentation for the defense of a claim can result in reduced exposure to the carrier and employer as well as an expeditious closure to the claim. When communicating with them, counsel should make the employer feel at ease and let them know that we are here to help them through the claims process.
