False IOD Claims
If an employee is injured on duty, the Occupational Health and Safety Act (OHSA) requires that the accident be reported to the Department of Labour and the accident be investigated. The Compensation for Industrial Injuries and Diseases Act (COIDA) provides that employees who are injured on duty will be paid while they are off work. This amounts to 75% of an employee’s monthly earnings at the time of the accident to a maximum dependent on the nature of the injury. The employer is responsible for the first three months remuneration, where after these monies are repaid to the employer. Many employers pay employees who are injured on duty their full salaries while they are off work. Remember that days off for IOD are not deducted from the employee’s sick leave entitlement.
This is a specialist area and it is not my purpose to go into it here. What is significant is that some employees see injury on duty (IOD) as a perfect opportunity to malinger. These employees may exaggerate an injury in order to take the maximum amount of time off work or to get themselves put onto light duty. Others, who might have suffered a past injury such as a sport injury, may claim falsely claim another injury at work or compensation. In short, dishonest people can ‘milk the system’.
One of the difficulties that employers face when dealing with these problems is contained in the LRA in Section 10 (4) of the Code of Good Practice which deals with dismissals for incapacity:-
Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illnesses. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these cases.
So what does an employer do to minimise the risks of ‘being taken to the cleaners’? Some suggestions are as follows:-
Create safety awareness
No matter what your business is, make sure that safe working practices exist and ensure everyone is conscious about both safety and security matters (hijackings and robberies can result in physical and/or psychological injuries).
A pre-employment medical examination will reveal if the employee has a past injury or illness which could affect his performance. Back and neck injuries are common and it is very difficult for a medical practitioner to diagnose as to whether or not a person is in pain. The doctor will normally err on the side of caution and book the patient off work.
Therefore, as prelude to pre-employment medicals, applicants should be asked to declare any injuries or illnesses which could affect their suitability for employment. If an employee has falsely claimed a ‘clean bill’ of health during a pre-employment medical and it is later proved that this was not so, the employee may be dismissed for dishonesty.
Reporting of accidents
Ensure that everyone is aware that accidents must be reported immediately or as soon as possible after the accident. Employees must know who to report to and accidents must be properly recorded as per the documentation in COIDA. Also make sure employees know that if a claim for IOD is found to be false, this will be treated as a major transgression which could result in summary dismissal. After all, it is fraud!
Do not simply take the employee’s word, especially if there are no witnesses to the accident. If an employee claims to have been injured at work but did not report it, be suspicious and really investigate the reasons why it was not reported. Check to what extent the accident was caused by the employee’s own carelessness. Some employees are more prone to accidents than others. If this is so, investigate the reasons. Substance abuse could be a factor.
Employees often go to general medical practitioners claiming that they were injured at work. For example they may claim that respiratory problems were caused by their working conditions (e.g. paint spray in a paint shop). They could also claim that injuries incurred at home occurred at the workplace or they could ‘milk’ an old injury to get paid time off, claiming it happened at work.
For example an employee reported to a client that he had been unpacking goods from wooden packing cases on a Friday afternoon and had got a splinter in his hand. He claimed that he had not reported the ‘accident’ because it was late, he was in a hurry to leave and the injury was not that sore. He claimed that over the weekend his hand had swelled up and for this reason he had felt compelled to report the injury on Monday. He was sent for a medical assessment and to remove the splinter from his hand. The ‘splinter’ turned out to be a bougainvillea thorn!
Ensure therefore that if you have any doubts, you send the employee to an occupational health specialist for a second opinion. Do not accept what the employee’s doctor has to say. The patient pays his salary!
Not only that, but the chances are the doctor is not qualified to assess whether or not the employee is fit to do his job because he does not know the physical requirements of the job. As a layperson, you are in no position to challenge a medical doctor but another doctor can!
Make it difficult
If you suspect an employee who claims IOD is malingering, make it difficult. Test him. Do not automatically pay the employee. Make him lodge a dispute with the Compensation Commissioner. Even if you eventually have to pay, he will not get his full salary and he will have to fend for himself for a while until the case is investigated!
Err on the side of caution
If you are dealing with a difficult employee, do not rush into considering the termination of his services. Take advice from a consultant or labour lawyer, make sure you do everything right and you have the necessary documentation to back it up.
Dealing with genuine IOD cases
Having pointed out some of the problems and abuses related to false IOD claims, genuine injuries at work should be handled with compassion and the injured employee should receive support and assistance. The employer also should demonstrate that steps have been taken to ensure similar injuries will not reoccur. Safe working practices and training should be in place in every workplace, including white-collar environments. It is the employer’s duty to provide a safe working environment and to actively enforce working practices.