Workers Comp Question!

[jadegrniiz]

I caught wind of a situation involving a workers comp claim, and it didn't sound right to me.



Lets say employee (Jane) throws out her back at work. Let's also assume that moving and lifting things are a part of her normal work day. Knowing that Jane cannot work full duty for a few months (if ever again), can Jane be fired? There would be no place Jane could work "light duty" and the employer needs someone in Jane's spot to be 100%.



Now of course Jane is also going around and telling different stories to everyone who'll listen about her injuries (doctors included)... and it changes every time. Nobody witnessed the injury, and the whole thing is in question. Doctor also told her to go back to work January 2nd and she has yet to show up because "she is in pain".



Now, with this information, can Jane be fired?

[andrea843]

Jane, it appears is going about things all wrong.  If she's honestly in pain, there are ways to address that THRU worker's comp and the physician she's been assigned too.



Now that being said, look at the HR ramifications.  Jane, has been released by her doctor.  Jane has been ordered to report to work.  Is Jane calling in each day? If so, then it's time to ask for a doctor's note excusing her absences.  IF NOT Jane is in violation of the basic law of the workplace,, which states :Thou Shalt call in if thou shalt not be available to appear in the work place."  Most companies have a standing policy that includes termination for "no call no show".



Now, if Jane is playing by the rules and calling in, it's time to begin to document document document, any phone conversations etc.  Jane is no longer technically a "worker's Comp. Injury and thus, should be treated like any other employee with an attendance problem, making very sure that you follow company policy to the letter and make NO distinction between the rules you apply to Jane and the rules you would apply to ANY other employee.



Does Jane have recourse if she's fired? Doubtful.  Jane needs to play by the rules of Worker's comp.  Those rules include arbitration if Jane feels her physical/medical needs are not fully addressed by the attending physician.



Now, here's where it get really sticky,,, if Jane DOES have a permanent (even a non permanent) injury that was caused by an accident on company premises during working hours, THEN refusing to offer her light duty could be a real issue.  Most companies can always find some light duty "chores" that need doing, and it's in the companies best interest to apply a light duty status for a time and to follow up on Jane's progress and limitations with her workman's comp providers.



Light duty can include sweeping, emptying office trash, cleaning lunchrooms, and myriad other chores, that are set by the employer.  Just because there's no light duty in Jane's department doesnt mean she can't work elsewhere until HR is very sure about her Workman's comp status.



If you give me some more information, I can probably give you a clearer idea of the issues involved...



Andrea, HR diva, slayer of Hydra, Keeper of the Christmas Flame.... in Charleston....

[jadegrniiz]

Some more details:



Jane is actually John, and the type of workplace is Jeff's retail store. There is simply NO place for a "light Duty" worker to be. Jeff's regional boss said that if John is out more than 7 days, he is to be replaced. Should John wish to come back at 100% performance, he is guaranteed a job at another location within 20 miles of the current store.



It is the opinion of the regional boss that an employee sitting in the office all day emptying trash cans and answering the phone gives the other employees the false impression that they can slack off too, and the overall team spirit falls apart. He will not allow a light duty employee to work until he is released for full duty.



The injury as told to me is that John was delivering furniture to a customer and upon return began to complain to Jeff about back pain. The other employee with John at the Delivery says he didn't complain of any pain or strain at the time, and seemed just fine. Jeff sent him home to rest and told him if it was still hurting the next day, he'd send him to the Dr. John went to the ER on his own that evening, instead of waiting. At the ER, he filed his OWN WC claim (without Jeff's knowledge). He was given light duty, and was told to go back to work on Jan 2nd. All this week, he's called in sick, complaining of his back pain and inability to work. He went on his own to a chiropractor, and presented the bill to Jeff for payment. (This guy is a winner) The WC Doctor told him light duty thru Jan 2nd.



Also keep in mind that John's wife is about to have a baby any day now, and had asked for vacation this week and was turned down. He was told he could have time under his FMLA when the baby was born, and that it is unpaid.



Jeff told John yesterday that he either provided a note from the WC doctor (not his personal chiropractor)excusing his absences to date or lost his job... stating the only thing he had under "official WC care" said John was to be back to work Jan 2nd. Until he proves otherwise, he's abandoned his position.



After listening to Jeff tell me more about it last night, I almost think this guy wants to lose his job. I just feel bad that this is happening the week before his baby is due...

 

[andrea843]

Wellllll, it's a sticky wicket, but if the employee is continuing to complain of pain, and gets a sanctioned WC evaluation that declares he needs light duty, and Jeff's supervisor doesnt go along thent hey are looking at lawsuit city and justifiably so.



While the overall feeling may be that this worker is "slacking" the regional Mgr's positon that "light duty" will somehow harm the team spirit shows a total disregard for the law and for worker's who have indeed incurred an injury while performing their jobs.



Yes, it sounds suspiciously like this employee wants time off, but the thing that gets me is the regional manager's postion statement on light duty.  Tell Jeffie poo to document his you know what off on any decisions that are made so that he can't be drawn into the fiasco of a lawsuit.  If regional Manager TELLS him to fire employee urge him to get it in writing From Mr. Manager to avoid getting blamed for a suit should it occur.



It's been my experience that when someone (say a Regional Manager) makes a poor HR decision, and is in the end confronted with it, they'll blame it on an underling in a New York second.



Jeff can't change how this situation is being handled, but he CAN make sure he's got plenty of CYA documentation when it blows up.



My Four pence...