The workers’ compensation program is divided between federal compensation and State compensation. The federal Department of Labor runs and regulates four disability compensation programs that ensure the workers of the federal government have coverage incase of a work related injury or work related disease. Each state has two types of workers compensation programs that are state funded and not federal. These programs and benefits may vary from state to state because every State can govern their own rules and regulations. It is necessary to have both State and federal compensation plans because they both cover different workers and their injuries as it pertains to the severity of their work force. Both federal and state programs have rules and regulations they must take into consideration such as the claims process to include, responsibilities of the employee, employer, physician, and insurance carrier, HIPAA Privacy Rules, and patient medical records.

The claims process first starts by the worker obtaining necessary medical treatment usually by an in network doctor pre selected by the employer or the insurance provider and notifying his or her employer in writing about the incident and how it happened within a specific time period. If the employee chooses not to be seen by the selected medical provider he/she can be denied for workers’ compensation. The employer then has to make notifications within a specific time period to the workers’ compensation office and insurance provider.

The physician of record is responsible for all medical services and recommendations that pertain to the related injury. This includes recommended disability and return to work date. According to Valerius, Bayes, Newby & Seggern (2008), “the physician of record files a progress report with the insurance carrier every time there is a substantial change in the patient’s condition that affects disability status or when required by state rules and regulations”( Valerius, Bayes, Newby & Seggern, 2008, p.429). All medical providers have to bill the insurance carrier and then the insurance carrier pays the due charges directly to the provider. There are pre- set fees that are established and the employer can not be held responsible for any charges that exceed the amount of the fee schedule. In addition the employee can not be charged any fees from the provider for services that pertain to his or her injury.

The employer is responsible for filling the first injury report and notifying the employee of the outcome within a specific time period. This time period can range from state to state but averages between the first twenty-four hours and within the first ten days of the incident. The injury form includes information about the injury/illness, the patient, and the employer. This form can either be mailed or electronically filed if the insurance provider allows it. If the claim is granted the worker will get the coverage checks sent to he/she and all medical cost are paid for. If the claim is denied the employee is 100 percent responsible for all medical bills and can choose to have there own insurance company billed.

The insurance carrier is responsible for the assignment of a claim number and the determination of eligibility. After they have made a decision they notify the employer. This determination is either an Admission of Liability, stating that the employer is responsible for the injury, or a Notice of Contest, which is a denial of liability” ( Valerius, Bayes, Newby & Seggern, 2008, p.429).

The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities (HHS.gov, 2010). When a workers’ compensation claim is in effect the employee is not covered by the privacy act of HIPPA. This is because a claim provides information needed by the employer and insurance carrier for benefit issuance. However providers still must follow state and other laws to protect health information including no third party transmission of the patient’s medical information. There are different ways in which disclosures are permitted. First there are the Disclosures without Individual Authorization which entitles covered entities to disclose protected health information to workers’ compensation insurers, State administrators, employers, and other persons or entities involved in workers’ compensation systems, without the individual’s authorization (HHS.gov, 2010). Then there is Disclosures with Individual Authorization which entities may disclose protected health information to workers’ compensation insurers and others involved in workers’ compensation systems where the individual has provided his or her authorization for the release of the information to the entity (HHS.gov, 2010). Lastly there is the Minimum Necessary disclosure which entities can only disclose minimal amounts of health information to only minimal workers’ compensation employees to obtain results ending in there judgment.

The unrestricted access to patient information relies on the system which is held by strict laws, rules, and regulations that the Department will actively monitor the effects of the Privacy Rule, and in particular, the minimum necessary standard, on the workers’ compensation systems and consider proposing modifications, where appropriate, to ensure that the Rule does not have any unintended negative effects that disturb these systems (HHS.gov, 2010).

The workers compensation claims process is a vital process in which protects the employer, employee, and the insurance carries from committing fraud amongst one another. These systems are set up by officials to ensure all rules, regulations, and laws are met by the standards they should be. Employees, employers, providers, and insurers all share a responsibility in the claims process and have to follow the specific guidelines for specified time periods to accurately submit, deny, and award claims.

Introduction:

John recently had a severe accident at work and as a result broke his back. This case reinforces the Work Place Health and Safety Act. This report will advise both Reg (John’s employer) and John on the process in which they have to follow. Recommendations will be made to Reg on how to prevent such accidents and avoid compensation claims from taking place. Reg will be advised on what steps to take to make a claim and to discover whether he is eligible for Work Cover and what type compensations he is eligible for and for how much.

The issue of work place health and safety will be examined to determine who involved followed the correct procedure as the employee or employer.

Facts of the case:

Reg is the owner of a construction company (We Build Pty Ltd). He employs a number of employees. While building a multi-story apartment block John a worker falls from the scaffolding and breaks his back. At the time John was not wearing the correct safety gear provided by Reg because it was too hot to work in. John has to spend several months in hospital and rehabilitation and is told not to work as an employee any more. Reg trained all workers in Work Place Health and Safety including the use of safety equipment. It was common knowledge that several of the workers would often not wear the safety gear provided when the weather was hot, although Reg would often ask them to put the safety gear on.

Workplace Health and Safety Act (Queensland 1991) is designed to prevent a person's death, injury or illness being caused by a workplace as stated in section 7 of the Act. If the main objective of the Act is followed it reduces the financial burdens on individuals, families and the community caused by these deaths, injuries and illnesses which in turn reduces costs imposed on industry. It will also reduce the human cost to individuals. Reduce the burden on the workers compensation scheme caused by the deaths, injuries and illnesses. Finally the Act will potentially maintain the community standard for workplace health and safety.

John hasn’t followed the correct procedure as detailed in section 7 of the Act. The obligation of the worker is to use personal protective equipment if the equipment is provided by the worker's employer and the worker is properly instructed in its use.

Legal Issues:

There are several legal issues in dispute in this case. The main issue is who is at fault? Was Reg as the employer being negligent to let a injury like this occur at his workplace? Or was John himself to blame for his injuries? Was he following the correct procedure? In order to discover whether John is eligible for compensation for work missed and medical expenses these questions must be answered.

Reg was not negligent. The fact that Reg continuously reminded the workers to wear the safety harnesses reinforces that he was not negligent and he had trained the workers for the jobs they conducted.   Although it was common knowledge of Reg that the workers would often not wear the safety equipment when the weather was too hot he made sufficient attempts to create a safer environment by reminding the workers of their unsafe work practice. It was impossible for him to constantly stand over each worker to make sure they were wearing the correct safety gear. As John was trained in workplace health and safety Reg could assume that his workers were following the correct procedure.

Prior to the accident taking place John had sufficiently been trained in the WHS requirements for his job. He and other workers were often reminded to put on the safety gear supplied by the company. It was ultimately John’s decision not to wear the safety gear provided thus causing his own injuries. He knew that by not wearing the safety gear he was putting himself in a high risk of injury as he had already been trained in workplace health and safety. The weather being too hot does not excuse the fact that he did not follow the correct procedure.

The number one requirement of the worker (section 36 of the workplace health and safety Act Queensland) is to comply with the instructions given by the employer at the workplace and any principal contractor for construction work at the workplace. This section of the Act details what John was required to do as a worker. He didn’t follow the correct procedures given to him by his employer Reg. As a worker John should have been wearing the correct safety equipment supplied and should have been following the workplace health and safety procedure that he had been trained in.

In dint of not following the correct procedure John is still entitled to full compensation as his injury follows the WorkCover requirements. The requirements put in place by WorkCover are that the person injured must be a ‘worker’ describes in section 12 of the legislation as a person who does work under a contract of service. Their employment must have been a contributing factor to the injury. Finally there must have been an event resulting in the injury. All of which cater to John’s accident. Therefore he is covered for compensation.

In order for a worker to be successful in a claim to sue their employer they must prove that their employer was legally liable for their injuries. They must prove that as an employer they did not follow their responsibilities which are:  

• providing adequate plant and equipment, including appropriate protective clothing and safety equipment that is well maintained
• providing a safe place of work. An employer must provide a workplace that is safe from dangers such as slippery floors, inadequate ventilation etc
• providing a safe system of work supported by appropriate staff training and supervision

Reg has followed these responsibilities. He as an employer supplied adequate safety equipment and provided a safe work environment. Reg also provided a safe system of work which was supported by appropriate training and supervision. Therefore Reg is not liable for John’s injuries.

This is demonstrated in the case that involved a construction worker who fell to his death whilst working at the Gold Coast Convention Center.

The Workplace Health and Safety Queensland investigation revealed that the worker was not wearing any fall arrest equipment at the time of the incident.
It also revealed that Fultoncote Pty Ltd had not conducted a formal risk assessment or provided any instruction to the workers on how they were to perform their job.
(Southport Industrial Magistrates Court, July 2005)

The company was found guilty and charged $60,000. This precedent demonstrates how the responsibilities of an employer work. The company in this case was found guilty as the employer had not sufficiently trained the workers for the jobs they were instructed to complete. In comparison to the case at hand where Reg the employer had sufficiently trained the workers and therefore is not liable for John’s injuries.

Recommendations:

I would strongly recommend Reg put in place better workplace health and safety training in order to protect the workers. Even though the workers including John had been sufficiently trained, John was still not trained well enough to ensure he would not have taken such risks that he did. Another way for Reg to protect his workers would be to elect a workplace health and safety representative to overlook the safety procedures put in place, this would make the workers reconsider their choice to not wear the safety gear provided. The representative according to section 67 of the workplace health and safety Act is a worker at a workplace who is elected as a workplace health and safety representative by the worker's co-workers at the workplace. Their aim is to assist employers and principal contractors to manage workplace health and safety. They are also appointed in order to enforce the workplace health and safety Act.