The story you are about to read is true. The names have been changed to protect the innocent. And in some cases, the stupid. Really stupid. It’s a shame I can’t change my own name, as it would have protected me on numerous occasions of idiocy. But that is a different story, I suppose.
I received a call recently from a friend who is a high-level executive of a fairly well-known organization. It seems they had recently held a training session for some volunteers who assist them in their mission. Unbeknownst to them at the time, one of the volunteers was sick with COVID-19. One of their employees, a trainer, came down with the malady immediately after this session. The employee went to an urgent care center, was diagnosed with COVID-19, and was told to stay home for three days.
The employee then asked if they could file a workers’ compensation claim.
My friend was looking for advice on whether or not to file the claim, with the primary concern being that it could “impact our experience mod.” I explained that, generally, if an employee wanted to file a claim for any reason, it was in the employer’s best interest to do so and let the investigation determine the outcome. In fact, in the state where this incident occurred, employees may file directly with the state workers’ comp agency when an employer fails to do so.
The caller then repeated concerns regarding the potential negative impact on their experience mod. I suggested they call their agent or broker for their input on the issue. They advised me they had called their broker, who, for purposes of this article, we will call “Wetland Civil War General” or Wetland-General for short. I asked them what Wetland-General had advised. The answer stunned me.
They allegedly told my friend not to file the claim, as it could negatively impact their experience mod.
Now, far be it for me to challenge Wetland-General’s expertise, but I stuck to my guns and advised the caller to file the claim. In their state, the lost days were less than the waiting period for lost wages, so there would be no indemnity. If accepted, it would most likely be a simple med-only claim with one urgent care bill and any associated prescriptions. Not to mention, the law requires it.
I’ve been pretty critical of agents and brokers in the past regarding workers’ compensation. While I know some excellent agents who have adapted to changes in the industry and are incredibly knowledgeable, I have met a good number whose awareness of comp beyond the policy sale was severely lacking. I once commented on LinkedIn that while many people in a sales-oriented position had adapted to technological changes, many insurance agents “are still worried about getting their favorite doughnuts at the Chamber breakfast.”
At least one person in the industry, the venerable and now-retired (but still holding employers accountable for their stupid decisions on LinkedIn) Hank Mustachio, took me to task for that comment. He was right – it was a harsh and possibly unfair reference. Still, I stand by the point that agents and brokers often do not involve themselves in critical details of the industry beyond the issuance of a policy. You won’t find many at conferences; there are not many active on social media. Even in the development of WorkCompCollege.com, where people of all industry segments came together to build a better mousetrap, we could not find a single agent willing to engage and contribute (my entire position on this was explained in a 2016 blog post, available here).
The experience of this phone call did not bolster my confidence in the sector. I think the broker offered terrible advice to their client. To reinforce my position, I turned to the Oracle of Truth, ChatGPT. After all, it is on the Internet, so it must be true, right?
I simply asked it, “In [State], what can happen if an employer refuses an employee’s request to file a workers’ compensation claim?” The response was very accurate given the jurisdiction:
In [State], if an employer refuses an employee’s request to file a workers’ compensation claim, several consequences can occur:
- Employer Penalties: [State] law requires employers to report workplace injuries to their insurance carrier within 7 days. If the employer fails to do so, they can face penalties, fines, and even criminal charges for noncompliance with workers’ compensation laws.
- Direct Filing by Employee: If the employer refuses to file the claim, the employee can file the claim directly with the [State] Division of Workers’ Compensation. The employee can also seek assistance from an attorney to ensure the claim is filed properly and on time.
- Civil Lawsuit: In cases of intentional refusal to comply with workers’ compensation laws, an employee may be able to file a lawsuit against the employer outside of the workers’ compensation system. This might include claims for negligence or bad faith handling of the situation, potentially leading to higher financial consequences for the employer.
- Retaliation Protections: [State] law protects employees from retaliation if they attempt to file a workers’ compensation claim. If the employer retaliates by firing or disciplining the employee for seeking benefits, the employer may face legal consequences for violating anti-retaliation laws.
- Reporting to the Division of Workers’ Compensation: Employees can report the employer’s refusal to the [State] Division of Workers’ Compensation, which may result in investigations and enforcement actions against the employer.
These steps are designed to ensure that workers are protected under the state’s workers’ compensation system even if an employer is uncooperative.
So there we have it. As far as filing a workers’ comp claim is concerned, when in doubt, fill it out. And in some cases, you may not want to go for your broker unless you are willing to completely go for broke.