Bill applied for a job for a moving company. He was young and strong and figured that he could make good money while using his physical strength, as body building was an important part of his life. His application was quickly accepted and after a background check, he was asked to start the following Monday. The work came easy to Bill and he enjoyed the camaraderie of his co-workers. He loved helping people move and enjoyed seeing all the new homes and the pride they had as new homeowners.

Although Bill took precautions by wearing a brace provided by the company, one day he lifted a box off the truck that he didn’t expect to weigh as much as it did. He must have twisted wrong or something, because the pain to his lower back was excruciating. His supervisor told him to sit on the curb and wait for a time until the pain subsided and he could go back to work. Bill was strong, so after an hour, he went back to work, mentally pushing past the pain.

The next day Bill’s supervisor reported the incident to the company’s human resource manager and she immediately contacted Bill insisting that he be checked out at the clinic that the company uses for workers’ compensation claims. He went in the next day and was advised that he had a serious injury and wouldn’t be able to lift heavy boxes. He was placed on leave and eventually was advised that he would not be able to go back to work and would be compensated through workers’ compensation insurance.

Although Bill learned that disability pay, either temporary while he was getting back to normal or permanent if he will never fully recover can be as high as one-half to two-thirds of his normal pay, unfortunately the insurance payments were not enough to allow Bill to live comfortably. He analyzed his situation, and decided to apply for a job at a retail organization. The retail firm read his application, called his references and hired Bill. It wasn’t more than a month that Bill’s back began hurting again and he was advised to see a clinic recommended by the retail organization. Bill never mentioned that he had been through this process before and was put on workers’ compensation leave and began receiving a check.

Again, Bill still wanted to work and so he applied for a job at a construction company. After sixty days his back went out again, and he found himself at their workers’ compensation clinic for a checkup.

Although the exact story above is a fabrication, our firm performs workers’ compensation searches for many organizations. In one particular search an individual was applying for a position at a property management company. The management company sought full background checks from our firm which included a search for previous workers’ compensation claims. In our report, we identified that the individual had reported five workers compensation claims with five different employers. When our client compared the list of employers to those listed on the individual’s employment application, they found that only one employer was listed even though the application required that all employers from the last ten years be listed. Calls to the previous employers confirmed employment. The client, after consulting their legal counsel, was advised of their rights to rescind their offer of employment due to the employee falsifying their application by omitting the previous employers.

What are the legal rights of employers to perform searches of previous workers’ compensation files? Workers' compensation laws are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. These laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents. State workers compensation statutes establish this framework for most employment. Federal statutes are limited to federal employees or those workers employed in some significant aspect of interstate commerce.

The Federal Employment Compensation Act provides workers compensation for non-military, federal employees. Many of its provisions are typical of most worker compensation laws. Awards are limited to "disability or death" sustained while in the performance of the employee's duties but not caused willfully by the employee or by intoxication. The Act covers medical expenses due to the disability and may require the employee to undergo job retraining. A disabled employee receives two thirds of his or her normal monthly salary during the disability and may receive more for permanent physical injuries, or if he or she has dependents. The Act provides compensation for survivors of employees who are killed. The Act is administered by the Office of Workers' Compensation Programs.

California's Workers' Compensation Act provides an example of a comprehensive state compensation program. It is applicable to most employers. The statute limits the liability of the employer and fellow employees. California also requires employers to obtain insurance to cover potential workers' compensation claims, and sets up a fund for claims that employers have illegally failed to insure against. What about pre-existing conditions? Pre-existing medical conditions are considered in determining the causal relationship of a work-related injury. But if a pre-existing medical condition becomes aggravated, accelerated or exacerbated by a work related injury the workers' compensation carrier is usually responsible for the increased disability, including medical treatment.

If a person sustains a work-related injury to a previously injured part of their body, regardless of whether the previous injury was work-related, they will not be barred from recovery under any state’s workers’ compensation system. Similarly, if they are in an accident which aggravates or accelerates a pre-existing physical condition, such as arthritis, a back condition or a prior surgery, they are still entitled to all the rights and benefits provided by the workers’ compensation law in their state.

What is an employer to do who is concerned about workers’ compensation claims? The following is from the Privacy Rights Clearing House website: Workers' compensation. In most states including California, when an employee's claim goes through the state system or the Workers' Compensation Appeals Board (WCAB), the case becomes public record. An employer may only use this information if an injury might interfere with one's ability to perform required duties. Under the federal Americans with Disabilities Act, employers cannot use medical information or the fact an applicant filed a workers' compensation claim to discriminate against applicants. (42 USC §12101).

In California, employers may access workers' compensation records after making an offer of employment. To gain access, employers must register with the WCAB and confirm that the records are being accessed for legitimate purposes. Although the agency may not reveal medical information and the employer may not rescind an offer due to a workers' compensation claim (California Labor Code 132a), employers sometimes discover that applicants have not revealed previous employers where they had filed claims. In such situations, employers often terminate the new hire because it appears they falsified the application.

What of other states?...

States Allowing Searches of Workers’ Compensation Records

• Alaska (AK)
• Arizona (AZ)
• Arkansas (AR)
• California (CA)
• Colorado (CO)
• Florida (FL)
• Idaho (ID)
• Illinois (IL)
• Iowa (IA)
• Kansas (KS)
• Kentucky (KY)
• Louisiana (LA)
• Maryland (MD)
• Massachusetts (MA)
• Minnesota (MN)
• Montana (MT)
• Nebraska (NE)
• North Dakota (ND)
• Ohio (OH)
• Oklahoma (OK)
• Pennsylvania (PA)
• South Carolina (SC)
• South Dakota (SD)
• Tennessee (TN)
• Vermont (VT)
• Wyoming (WY)

States Who Allow Searches of Workers’ Compensation Records with additional requirements

• Alabama (AL): Notarized release required
• California (CA): Must register in advance
• Connecticut (CT): Special release required along with a copy of conditional job offer and an affidavit from employer
• Delaware (DE): With release
• District of Columbia (DC): By mail only with release
• Hawaii (HI): By mail only with release
• Indiana (IN): By mail only with release
• Michigan (MI) : By mail only – no information older than 14 years available
• Missouri (MO): Notarized release required
• Mississippi (MS): Must register in advance
• New Jersey (NJ): By mail only with release
• Texas (TX): By execution of DWC form 156
• Utah (UT): Only with special forms
• Virginia (VA): By mail only with release
• Wisconsin (WI): With original signed release

States Who Do NOT Allow Searches of Workers’ Compensation Records

• Georgia (GA)
• Maine (ME)
• Nevada (NV)
• New Mexico (NM)
• New York (NY)
• North Carolina (NC)
• Oregon (OR)
• Rhode Island (RI)
• Washington (WA)
• West Virginia (WV)

About Barry J. Nadell:
Barry J. Nadell is the Senior Vice President of the background screening division of Kroll and the former President and co-founder of InfoLink Screening Services, now a Kroll company. He is a founding member and on the board of directors of the National Association of Professional Background Screeners, where he was co-chairman of the board in 2006. As the established industry expert, Barry has spoken at numerous national and regional human resources, security and other industry specific conventions. He is widely quoted, has had several articles published, has been featured on television including The Bloomberg Report and ABC News, and has been interviewed on more than 175 live talk radio programs. Barry is a licensed private investigator in California and the author of the only book solely relating to background screening: "Sleuthing 101, Background Checks and The Law." Contact: bnadell@kroll.com; www.kroll.com.

Barry J. Nadell
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