Workers' Comp. claim w/disability

[Guest Brian Cummins]

I have an employee that has been off work under a workers' compensation ijury. Our workers' comp. carrier recently decided to deny any future claims and discontinue salary payments based upon a physician's recommendation that the employee is able to return to work. The employee still feels that she should stay off work based upon the opinion of her personal physician. Since she is no longer eligible for benefits under workers' compensation can she receive benefits under short-term disability? Before she was not able to access her disability because they will not pay out because of a workers' comp. claim. Now that she was been deemed by the workers' comp. doctor as "able to work" can she receive benefits?

[KIP KRAUS]

Brian:

In most Short Term Disability (STD) policies I've seen over the years Workers' Comp. claims are specifically not covered. If the employee is not going to return to work because of a WC related illness or injury, based on my experience and opinion,STD benefits should be denied. As long as the illness/injury is not being contested by the Comp. carrier, I know of no instance where a comp. claim becomes an STD claim.

It sounds as though an Independent Medical Examination(IME) has been performed by the Comp. Carrier doctor and thus the reason for them denying future weekly payments? It sound to me like it is still a Comp. issue and not an STD issue.

Hope this helps.

[Guest MattNewman]

I disagree with the last response. Unless the STD policy (and later the LTD policy) specifically excludes claims whose genesis is in a workers' comp claim, then I see no reason why, if the STD could otherwise be proven, that your client would be excluded from STD benefits. Of course, there is typically an offset for workmens' comp benefits actually paid (as a subrogation interest)

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Matthew B. Newman, P.A.

ERISA Law Firm

<http://www.erisapro.com>

[Guest nac]

Many fully insured STD/LTD plans specifically exclude disabilities that are work-related. However, self-funded salary continuance plans frequently do not exclude WC and are a little less cut-and-dried.

If your STD/LTD plan is one that allows claims that originate as WC and has no case management feature, I would agree with Kip's recommendation to obtain an IME prior to accepting or rejecting the claim. On the surface, it looks like you have a bit of doctor-shopping going on.

If you do have case management built into your plan, alert the case management folks and let them handle it.

[KIP KRAUS]

In twenty years I have seen few insured, or self-funded STD plans that did not specifically deny benefits if illness or injury was work related. The plans I have seen have been for some union employees and salaried employees. I also agree that an employer who has a salaried continuation plan can do what it wishes, and often times does supplement workers' comp. payments. I have managed such a plan. However, most STD plans do specifically deny benefits related to WC claims, I would not assume that just because a person does not want to come back to work after being released under WC that the person can then turn around and decide to take time off and recieve STD benefits.

Like I said before, check your STD policy/document/pay practices(insured or un-insured). What makes this person less able to work under the STD plan than under the WC plan any way?

I also agree that LTD plans, on the other hand do typically off-set benefits for work related illnesses and injuries. But because this is commonly true with LTD plans, one should not assume that it is also commonly true with STD plans.