Chapter Five managing relationships
Managing relationships is crucial to maximizing how you use the workers’ compensation system. As explained in the introduction, the workers’ compensation system historically served as a means of preserving a balance between workers’ and employers. Injured workers should remember that getting fired from their job really isn’t going to do them any good. They don’t have a civil claim against their employer if the employer fired them for any reason except exercising their rights.
Sometimes, the line between exercising workers’ compensation rights and refusing to do things that you should do on the job can be blurry. For that reason, employees have to remember to be respectful towards the nurse case manager directing their treatment and their employer. That can have a good impact on your recovery. If you have difficulty walking the line between asserting your rights and being respectful of your employer, it is a good idea to hire an attorney. The attorney can then advocate for you and you can focus on getting better and keeping your job.
Understanding the Role of the Nurse Case Manager
Missouri law requires an employer to pay for injuries that are sustained in the workplace. Because of this, insurance companies that have issued individual health insurance plans will often deny coverage for injuries that were sustained in the workplace. Although we think this is a run around of obligations by insurance companies, coverage for your workplace injury by individual insurance policies is unlikely. Still, sometimes an individual health plan will authorize care for a workplace injury on a case by case basis. If not work comp coverage exists (like because an employer had fewer than 5 employees and has no workers compensation insurance), the health insurance company cannot deny benefits.
Determining which treatments will be authorized by an insurance plan also occurs when you are receiving workers’ compensation benefits. Insurance companies will often assign a nurse case manager to make this determination. In theory, determining whether a particular course of treatment is authorized under a policy should be clear under the language of the policy. Nurse case managers can be great partners and employees should work with them to achieve the best medical outcome possible.
There are many good nurse case managers. But we also encounter those who actively work to limit the amount of care injured workers receive. They can also deny medical a doctor recommends or try to influence doctors or other medical providers to save the comp insurance company money. Their main function is to limit insurance company payouts – not increase them.
What happens in practice is that the nurse case manager will attend an appointment with the injured worker. Then we find the nurse will push the doctor to limit treatment, recommend physical therapy or work hardening instead of injections or surgery, and generally steer treatment to more conservative and cheaper options. Suppose a doctor believes that your injury would best be treated with surgery. The nurse case manager will then speak with the doctor and argue for the insurer’s interest and ask that the surgery be delayed to see if the injury will heal on its own.
Another common fact pattern occurs when doctors prescribe physical therapy. Frequently, the nurse case manager will try and get the doctor to limit the amount of recommended therapies, and suggest a lower amount. Nurse case managers often also work in concert with insurer approved doctors to limit partial permanent disability payments. Doctors make a lot of money by purposely lowering their determination of these ratings in return for the insurance company decreasing their payment. By observing the doctor, the nurse case manager ensures that the doctor complies with the wish of the insurance company.
Time and again, we see doctors prescribe surgeries, only to abruptly change course and rate the patients as having no permanent partial disability. This is completely absurd because clearly these surgeries are caused by some underlying condition that hasn’t been completely cured by the surgery. The nurse case manager will influence the doctor to come to this decision.
Regardless, be nice to the nurse case manager and get her to be your advocate if you can. If the nurse is on your side it can be a big help.
Dealing with the Employer
One of the most common difficulties that arises in managing your workers’ compensation case is dealing with an employer that either does not believe that you have been injured, or seems to want to sabotage your recovery. As I mentioned in my earlier discussion of the history of workers’ compensation, the statute that allows governs workers’ recovery rights was written in order to mediate disputes as to responsibility for worker injuries.
There are many employers who are good intended and take their workers’ welfare as their highest (or a very high) priority. But some are not and cut corners or consider workers expendable or interchangeable. Workers that I represent are hardworking and thankful for their jobs. This means that they are willing to put up with quite a lot from employers in terms of on the job safety, and willing to do things that some people might consider dangerous, in order to provide for their families.
However, this should not give employers license to take unnecessary risks in maintaining on the job situations that are directly threatening to workers. In fact, the workers’ compensation law addresses this problem by allowing injured workers to increase their recovery by as much as 50% if the employer is not following an identifiable workplace safety scheme that they should have. R.S.Mo § 287.120.
Employers often know that their workers are grateful for their jobs, and take advantage of this fact. They force employees that are injured to do things that violate their workers compensation doctor orders under the implicit threat that if the employee does not do so, they will be fired. They may try to have a worker not report the injury and put medical care on personal health insurance. They may deny that the injury happened or not get work comp insurance.
Cases involving volunteers can be particularly challenging under worker’s compensation law for a couple of reasons. First, it is not always clear whether or not they are “employees” entitled to protection under worker’s compensation law and second it is hard to value the case because employee wages form the basis for the damages of a worker’s compensation claim.
An uncompensated worker is considered an employee by appointment where “…he (or she) is in the service of an employer and that employer exercises control, or has the right of control, over the worker.” Stegeman v. St. Francis Xavier Parish, 611 S.W.2d 204 (Mo. banc 1981) (emphasis added). “The test for the employment relationship [in the case of uncompensated employees] is whether the hypothetical employer is entitled to exercise control over the work of the hypothetical employee.” Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo. 1967); See also American States Ins. Co. v. Broeckelman, 957 S.W.2d 461 (S.D. Ct. of App. 1997).
In determining if the employer had control over the employee, courts have used a number of factors including: 1. Extent of control; 2. Actual exercise of control; 3. Duration of employment; 4. Right to discharge; 5. Method of payment; 6. Degree to which employer furnishes equipment; 7. Extent to which the work is the regular business of the employer; and 8. Employment contract.
All of these factors basically amount to testing if a volunteer worker has a relationship with the employer which resembles that of a typical employee. For instance, does the worker report to a boss or supervisor? Do they use company equipment or do they bring their own? Are they performing functions similar to paid employees? If after answering these questions the work relationship looks similar to a normal employer/employee relationship, with the notable exception of traditional compensation, then the employee is protected under worker’s compensation law.
“If the hourly wage has not been fixed or cannot be ascertained, or the employee earned no wage, the age for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.” Evidence may be provided to an administrative law judge indicating what other persons in a similar occupation are paid and a determination will be made on that basis. See Stegeman v. St. Francis Xavier Paris, 611 SW 2d 204 (Mo. 1981).
Again, here administrative courts will compare the volunteer worker’s situation with similarly situated paid employees. After determining that the volunteer worker is entitled to employee protection using the analysis described above, an administrative law judge will compare the work done by the volunteer worker to that of paid employees performing similar work. The judge can use the wages of similarly situated paid employees to form the award basis for the uncompensated volunteer worker. Of course, the two opposing sides will debate and provide conflicting evidence as to what that amount should be, but ultimately the judge will use that evidence to fix an award amount.
The two biggest challenges for volunteer workers bringing a worker’s compensation claim are gaining employee status protection and determining an award amount. Administrative courts will actually have to perform an in-depth analysis to answer these questions. Courts will compare the volunteer worker’s situations to that of similarly situated employees and examine the work the volunteer performed. Therefore, it is important to understand the complete scope of the volunteer’s duties and situation and the nature of the field of work when bringing a volunteer worker work-comp claim to gain a recovery.