Every workers’ compensation adjuster can tell horror stories of newly hired employees who claim to be injured the very first day on the job. It’s even more troublesome when first notice of accident is reported by an attorney. Equally suspicious is when the injury is described as being both physical and mental, which leads us to the purpose of today’s blog. It is our intent to warn employers and claims administrators about a trap that is set whenever a newly hired employee files a dual physical and mental claim.
Sadly, some workers are professional claimants, having filed 10 to 15 litigated claims over the past several years. They live off the work comp system and rely on settlement money to fund their livelihood. Almost always objective evidence of physical injury does not exist. Only unverifiable, subjective complaints of soft tissue strains and sprains is claimed. As for adding an alleged mental injury to the claim, that is just a ploy raised by applicant attorneys to solicit extra settlement money. However, the psych add-on injury is where a trap is set and it applies to employers who offer a light duty. Allow us to explain.
First of all, applicant attorneys are aware that per LC §3208.3(d) an employee is not allowed to assert a compensable psych injury unless the worker is employed by the employer for at least six-months. This is known as the Six-Months Rule. The only exception to the rule is when the injury is attributed to a sudden and extraordinary employment event. Therefore, the applicant attorney’s goal is to somehow get around the Six-Months Rule.
Many employers offer light duty to workers injured on-the-job where the goal is to keep employees off TD by allowing them to return to modified work. Unfortunately, most employers do not impose any eligibility requirements for light duty. This is a huge mistake. Light duty should never be offered to anyone employed by the company for less than six-months. When a newly hired worker returns to modified duty, the employment clock automatically resumes ticking. Once six-months is reached any previously denied mental injury claim is no longer prohibited under LC §3208.3(d). It’s called the “light-duty trap” because most employers do not realize that calculating six months employment is not limited to pre-injury. All employment is considered, including post-injury. Newly hired workers have already proved to have no loyalty whatsoever to their employer as they retained an attorney and filed a litigated claim on the very first day on the job. Incredibly, some employers end up helping these workers by offering them light duty, where after 6-months the defense against the mental injury claim is thrown out, all thanks to the light duty assignment.
This is an example of only one of many workers’ compensation shenanigans often perpetrated by clever applicant attorneys. We at Friedman + Bartoumian keep tabs of such dubious tactics and warn of them in our blogs to provide our friends and clients with The Best Defense.
Leave a Reply