You Be the Judge

Is Injury During Pre-Hire Physical Exam Compensable?

After suffering an injury during pre-employment testing, a job candidate files a claim for workers' comp.
By: | May 19, 2014 • 2 min read

A job candidate received a contingent job offer from the Medical Center at Bowling Green. The offer was contingent upon her successfully completing a physical examination and a substance abuse screening. As part of the physical examination, the candidate was required to lift weights ranging from 10 to 61 pounds. While lifting the heaviest weight, she felt pain in her neck, arms, and shoulder. She did not initially report the pain for fear of losing the job offer.

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The candidate officially began her employment with the medical center a few weeks later. Subsequently, she sought medical treatment and was informed that she needed surgery for her neck injury.

She sought workers’ compensation, claiming that she sustained the injury while performing pre-job placement as an employee of the medical center. The medical center denied the claim on the ground that she was not an employee at the time of her injury.

The administrative law judge dismissed the claim, finding that she was not in the service of, under any contract of hire with, or performing any service in the trade, business, profession, or occupation of the medical center. The Workers’ Compensation Board affirmed the ALJ’s decision.

The candidate appealed.

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How the court ruled: The court explained that under the workers’ compensation law employees are defined as “every person performing service in the course of the trade, business, or occupation of an employer at the time of the injury.” During the candidate’s physical examination, she “produced no product, completed no task, and did not in any way benefit” the medical center. The court also pointed out that the candidate did not receive or expect to receive compensation for her time spent at the physical examination. The court said that the “essence of compensation protection is the restoration of a part of wages which are assumed to have existed.” The court explained that no such assumption could be made based on a preemployment, qualifying physical examination.

A is correct.The Kentucky Court of Appeals held that the candidate was not entitled to benefits because she was not an employee of the medical center at the time of her injury. Rahla v. Medical Center at Bowling Green, No. 2013-CA-001712-WC (Ky. Ct. App. 04/11/14).

B is incorrect.The court found that the candidate’s physical examination did not offer a direct benefit to the medical center. The examination was not a “service in the course of the trade, business, or occupation” of the medical center.

C is incorrect. The court disagreed with the candidate’s argument that the intent of the workers’ compensation laws would be furthered by including individuals who are, in essence, still in the application phase of their employment.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]