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Outrageous WorkComp Request
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Outrageous WorkComp Request
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
For the first 90 days of a workcomp issue our organization pays 1/3 of the employee's pay. WC covers the other 2/3. After 90 days the employee's long term disability has to cover the 1/3 and we stop p
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Forums » Topic Forums » Legal Forum » Outrageous WorkComp Request
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Outrageous WorkComp Request
posted at 7/9/2011 4:53 PM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
If he had a legitimate LTD claim, late filing does void the claim in my experience.
The coverage was paid for, the injury occurred the claim can be filed and paid. Please note that some LTD plans may exclude Worker's Comp claims, so this claim may not have been paid. If WC claims are not excluded he should protest this denial to the Plan Administrator and the state insurance board. Claims like this are not normally time barred except after a long period. |
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Outrageous WorkComp Request
posted at 7/9/2011 5:16 PM EDT
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Posts: 6
First: 6/25/2011 Last: 8/30/2011 |
I almost hate to muck the issue by throwing this out there but...
I contacted the LTD insurance company personally in researching this issue. This is an issue from 2010. I was stunned when they told me that the employee could still file his claim. They made it clear that they would need to investigate it but that it might still be paid. At this time the employee is claiming difficulty is getting the doctors involved to cooperate in completing their portion of his necessary paperwork. I have no way of knowing what his doctor is communicating to him. His assertion is simple though: He feels that our error caused his predicament so therefore we should simply pay him the money his LTD would have paid, had he filed in a timely and proper manner. He also wants to retain all of his leave as well. The time that we are supposed to cease the 1/3 payment does correspond with the logical time to file for LTD but they are not the same event. There is no rule or law that states that "Whatever portent an employee uses to determine a file date for LTD must be handled perfectly or all lost money falls to the employers burden." That would be ridiculous. It was his LTD, his policy, his name, his 90 days, and his responsibility. Rather than waiting for instructions to file from his employer he should have consulted a calendar. Employer supplement of 1/3 pay during a WC event like this is not required anyway. Cosidering the tax exempt status of WC money, our employees probably make more money when on WC leave than when they are working. Do any of my fellow managers out there work for companies that do or do not supplement 1/3 or whatever like we do? I am curious about the commonality of that benefit. |
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Outrageous WorkComp Request
posted at 7/10/2011 7:16 AM EDT
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Posts: 17
First: 9/27/2005 Last: 7/10/2011 |
Hi John, the system in Canada (where I am) is just enough different that there would be no top ups for WC of that sort, but we top up sick pay in various ways prior to LTD. Drawing some parallels, I'd guess that you should help/push him to get the LTD retroactivity since that seems possible, from which he can certainly repay you and everyone is 'whole.' Given that company policy is top up, if you take back the money so that for some period he would be short of what your policy says, I think he might have a case to argue - but I'm not sure it would be via legislation or small claims court. He hasn't benefited beyond policy in actual cash. It might depend on assignment of percentages of blame. One thing I can say is we had lots of similar situations in my large (70,000) company because even stellar employees rarely pay enough attention to the details of their benefits to be able to catch this on their own. We'd advise the steps when they approached deadlines like this and even then some would miss... and we'd apportion blame case-by-case. The more 'extra' notification we'd given the less likely we would eat the mistake, but there were lots of times we did - lots meaning one or two a year across our 600 locations. As someone said, some penalty might fall on the payroll people, too, but also from an employee relations view, being big brother can be better business in the long run even though we get frustrated that employees don't think things through. Even CEOs don't and chances are if this guy was CEO we wouldn't be having this debate. |
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Outrageous WorkComp Request
posted at 7/11/2011 4:06 AM EDT
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Posts: 210
First: 1/4/2003 Last: 7/11/2011 |
I agree with everything howard7 has said. You can and should collect back the overpayment. It is up to the employee to collect from the disability carrier and it appears you have confirmed he has the ability to do so. Any difficulties he has with his medical provider are his problem - and frankly, sound like a copout to me. This employee's sense of entitlement is inappropriate.
At our company, an employee is excluded from collecting disability payments while out on WC. I'd say your process is very generous and he should be grateful! I'm curious - since your employees are made whole with their wages while out on WC, what is their motivation for returning to work? It seems to me your system is encouraging to the few who may abuse the system and enjoy getting paid for not working..... |
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Outrageous WorkComp Request
posted at 7/11/2011 5:07 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Please note that I left the key word NOT out of this sentence after ....does...
It should have read "....does not..." This claim can be filed at virtually anytime, it is his responsibility to work with his doctors not you. The companys obiligations are to: 1. Ensure that he receives all the WC benefits he is entitled to. 2. Ensure that he is treated for this claim the same as if it were your boss's claim. 3. Ensure that you provide a safe work environment and that whatever caused the original accident has been reviewed and work modified as needed to avoid a repeat. If, under item 2 above you would be more proactive regarding the LTD claim, then you should do so. If under item 3 others similarly situated during an LTD were treated differently then he should be treated the same as them. Consistency in employee treatment will keep you out of the court house or minimize your damages. Disparate treatment, regardless of the reason will cost you much more. |
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Outrageous WorkComp Request
posted at 7/11/2011 9:53 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Couple of more questions after your followups:
(1) who paid the premiums for the LTD policy? employer or employee? (2) When was the last time that the SPD/booklet for LTD was given to the employee? Was one given at the time of the accident? How was the employee supposed to get the claim form, etc? How good is your beenfits communication? I have a sneaky suspiscion that you might be further up a creek than you think if this in any way moves into an ERISA venue. I am not sure it is, but I would be very very careful. And I would check with legal counsel where you can lay out ALL the details step by step to see where your risks and liabilities are. It is probably worth a consultation hour or two to make sure there is nothing you (or we) are missing. I know that at our company (only corporate office has benefits), which is really small, I would have watched it more carefully than it seems you did. I would probably compromise on the solution -- that is to have him repay the amounts when the LTD claim comes through. Because honestly as long as he was getting 100% paid, I wouldn't have expected him to notice the 90 day mark...no matter his age, etc. Those of us in HR/Benefits are more in tune with beenfits than those outside. Honestly I can understand how it never occured to him that he had to make the claim. It is very possible that he assumed the employer did, the employer got the check and passed it through payroll to him since he was still being paid at 100%. (When I originally responded I thought he was getting 133% which he DEFINITELY should have noticed, but now find that is not true) I think he also would have more easily noticed it if you had cut off the 1/3 at 90 days. I don't think the employer is responsible for filing the claim for him, but might be responsible for some lack of communications. Plus you now possibly have some taxability issues if those LTD premium payments were made after-tax. Because those would be nontaxable benefits and the 1/3 payroll would have been taxable. And you cross tax years (2010 to 2011). If he does pay it back, you really need to check with a tax attorney/accountant on how that affects W-2s and 940s for both 2010 and 2011. |
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Outrageous WorkComp Request
posted at 7/11/2011 11:32 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Did a little more research regarding my inkling on the ERISA front and found this:
" Death and Long Term Disability benefits are also commonly provided as employee benefits under ERISA plans and thus subject to its governance. Oftentimes employers provide these benefits through the purchase of insurance covering their employees. When evaluating a dispute between a claimant and a plan, the most important question to ask is perhaps: Who purchased the coverage? If the answer is the claimants employer, then in all likelihood the dispute is governed by ERISA. This is a crucial determination to make because the laws and regulations impacting the claim vary considerably, and not necessarily intuitively, from those governing traditional insurance and contracts. "http://www.erisaltd.com/common-issues-erisa-claims.html |
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