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Friday, August 07, 2009

Unable to Work

We have a fairly long term warehouse employee who claimed an injury about 8-9 months ago, which is being handled by our WC insurance. Our insurance says he is okay to work with no limitations. He has a lawyer who sent him to another doctor, who has him on restrictions. My question is : What is our responsibility as far as his Job Duties and Pay go? According to his doctor, he cannot work full time at any possible warehouse position, and he does not have any office skills at all, so I can’t move him there. What is my obligation if I simply have no position for him based on the restrictions he presents? By the way, we are not subject to FMLA. We haven’t had a claim of this type ever, so I am a bit at a loss on what to tell the employee regarding his job.

I'm not a lawyer. And even if I was, I wouldn't be a lawyer that specialized in workman's comp issues. It is a terribly complicated area of employment law and I don't want to touch it with a ten foot pole. You need to contact a lawyer that specializes in this area before proceeding.

But, I will anyway, because I like living on the edge. (Someone needs to, and it might as well be me.) You are under no obligation to continue to employe someone who cannot do any work for you. Since his doctor has declared him unable to perform any warehouse work, you don't have to continue to employ him.

If you have a disability policy, follow that. If you don't, implement one so you don't have this problem later on.

If you are subject to ADA restrictions, you have to make reasonable accommodations. Employing someone who can't do any work isn't reasonable, so let him go.

But, first, call a lawyer. It will be worth the money. Especially since your employee has a lawyer. Since he has one now, you can bet he's planning on suing you for any misstep. Call me paranoid, but first call your own lawyer.


Anonymous said...


Jon Hyman said...

To paraphrase Evil HR Lady, I am a lawyer, so let me try to break this down simply.

Your scenario raises a huge red flag, especially since the employee is represented. Even though you are not FMLA-covered, the ADA still might require that you grant the light duty on temporary basis as a reasonable accommodation. However, I don't have enough information about the injury and your employee's limitations to figure out whether she's ADA-eligible. If she's not covered by the ADA, you would treat her like you would any other employee who has exhausted excused leave options. Just understand that if you terminate, you will likely facing a defendable retaliation lawsuit, and also could be subject to wage loss under the comp system, depending on how your state's system works.

In other words, Evil HR Lady is right - call a lawyer before you make even the slightest move with this employee. Whatever you do will be exhibit A in the likely lawsuit that will be filed. If a judge or jury is going to consider this anyway, you might as well pay an attorney now to make sure that everything is dotted and crossed.

Evil HR Dictator said...

I'm not a lawyer either, but I know that worker's comp is a minefield. It depends on your state, but normally you can't terminate an employee who has a valid workers comp claim, and this sounds like a judge may have to make that determination. My advice is that your firm retain a workers comp lawyer now--today--and turn the case over to that lawyer. The employee already has a lawyer, so right now you are unarmed for this fight.

I see a red flag with the insurance company telling you he has no restrictions. Have they had the employee checked out by a doctor? You should have the written doctor's release for the employee to return to work. Is the insurance company denying the claim? It doesn't sound like they have, so something sounds a bit fishy there.

The sooner you get a lawyer working on this the better off you are. The lawyer will need to go through all your records pertaining to the employee's injury and his attendance and disciplinary record. And the lawyer can best advise you on what to do with the employee.

Definitely do not terminate the employee until you've got a lawyer on the case and they advise termination.

michelemcp said...

Thanks for your feedback - I really appreciate it. We have now contacted a lawyer. Originally, the worker was seen by the medical group he was referred to by our insurance...he had several follow ups and some physical therapy. The doctor follow ups, except for one time early on, said no restrictions. We have followed those guidelines. We do see the red flags, and are taking all your advise regarding legal representation.

Anonymous said...

This might sound totally off the wall, but, you can train someone to have office skills. I didn't come out of the box knowing how to file or answer phones. I worked my way up from housecleaner to part time receptionist in my PT high school job, by volunteering to answer the phone over lunch breaks.

I had to be taught the skills (such as how to work the phone and file), so there's no reason why the worker can't become a general office assistant who works under close supervision (heck I worked under close supervision when I was first starting out). I would suggest start the guy answering phones and filing. If the guy refuses to follow directions (such as "look here for the client's name and then file it in the client folder which we keep here" or "here is how you transfer a call"), well, then you have another issue altogether with the guy refusing light duty.

(of course IANAL and if they guys in a union, there may be an issue)


Goddess of HR said...

I think we all got the point about the lawyer, but I would also suggest talking with your workers comp carrier. Our carrier has classes, consultants and several other resources that are severely underutilized and provided free of charge. By using these services we have reduced our comp premiums by over $200,000 annually (warehouse environment/abnormally heavy lifting with 60 employees). We had three claims similar to yours over a two years before we decided to become proactive. We haven’t had any issues like this since.

Anonymous said...

Having worked in the workers compensation arena for 25+ years I can tell you it is never a good idea to terminate a workers compensation claimant if you can possibly find a job for them doing something. Often times they don't want to do the job you have avaliable for them and they voluntairly limit their income which helps you to negotiate a settlement. Times are bad and the likelyhood of this person getting another job especially with limited transferable skills and education will only cause you more difficulty. I would assign a nurse to the file on a limited basis and have her speak to the treating physician or in the alternative depending on the circumstances and the state you can agree with the plaintiff attorney on a mutual doctor and get another opinion on the restrictions.Make sure you ask for MMI and rating if any? This will help you to bring the file to a close. It looks to me like if you can't bring this person back you need to start talking to the adjuster about what the value of the claim is and immediately work on settlement. Good luck!

Anonymous said...

Since no one is taking the other side of the coin, I will. I am an IT professional and injured my back lifting a piece of equipment a number of years ago. By the end of the day I was in so much pain I could barely drive home. I called into work for instructions the next day and was sent to the work comp doctor who prescribed muscle relaxants and sent me back to work. I never gave it a second thought even though I was still in a lot of pain because I am a loyal employee and my friend who was also the HR manager told me that loyal employees don't file work comp claims. I'm now in my 40s with lifelong back problems that would have been mitigated greatly if I'd been sent to physical therapy. I wish I'd known then what I know now. Bottom line: not everyone who files a work comp claim is a malingerer. The doc who cleared him/her works for the insurance company and couldn't care less about the best interests of the employee.

Kim Kozak, PA, SPHR said...

I love this blog, and decided to contribute my first 2 cents because this is right up my alley.

Over 15 employees? Subject to the ADA and I can't imagine that there is nothing the employee can do, so you'll have to accommodate. Remember, in order to call it a hardship and not provide an accommodation, you have to prove it is a hardship on the WHOLE company, not just that office, department, or branch.

Your problem here is with conflicting medical opinions and there is almost no way to straighten that out.

First, you need to make sure your insurance agency didn't just have their "early release" doctor see him to keep claims costs down.

Second, you need to get something a little more validated and consistent than a human's opinion.

A company called BTE does functional capacity evaluations on machines that digitally measure residual strength and physical ability. The nice thing is that they also measure maximum effort and can tell if your employee is trying to "cheat the system" with limited effort. It is so finely detailed that there is no way a DR would know the difference.

Then, they will benchmark the results against thousands of other injuries of similar magnitude on similar physiques. These tests are validated and will stand up in court. They have machines throughout the USA and would really be something to look into. I don't work for them and never have, but I see their service as really able to save you all a lot of headache and money.

Connie Miller, CPE, CDMS, CCM
Office: 407.889.8824 Mobile: 321.231.3445 will be able to help you. Tell her Kim Kozak referred you and maybe you can get a really good deal.

Best of luck!