Employee Injuries & Notification / Non-work Related

Mel in CO

I have had two employees in the past month "pop-up" with injuries that have not been work related. One individual broke a few ribs while working on his farm and a cow stepped on him. The other employee that I have, over the past few years has had reoccurring back problems and recently (this week) she has been out of the office due to minor outpatient surgery.

The employee with the broken ribs is a remote / telecommuting employee located in KS (we are located in CO) and the only way that we found out about the problem was when our President met him at a trade show over this past weekend. The President noticed that the employee was walking differently and asked about his problem. According to the employee, the accident occurred during a Friday evening three weeks prior to the trade show. He proceeds to tell the President that his doctor stated that his only restrictions were that he "shouldn’t do anything that hurts". The employee then also states to the President that driving for long periods of time does hurts his ribs a bit – in my mind this would be against the restrictions of his doctor. The irony of this situation is that the employee logged over 1,124 miles during the past month.

The other employee with the back surgery is also in the same situation. She has been driving to customer locations (some locations over 150 miles one way) for the past two months when her doctor told her that she should not be driving. We just found this "restriction" out last week before she had surgery. The way we found out was that she was trying to work around a customer training class and stated to her supervisor “oh, well, I’ll go ahead and make the trip. After all the doctor stated that I shouldn’t have been driving for the past two months but I have felt okay”.

My question is, what type of liability is the organization under with aggravating these medical conditions if we didn't know about the restrictions? All of these restrictions were in the past and we had no knowledge about the situation (until now) so can we be held liable for any aggravation to their injury caused prior to this week? I am now pressing the employees hard for doctor's releases before I will let them travel to any customer locations although they have been very reluctant to provide anything. My guess is that they are feeling better but the doctor has not released them from restrictions. Any advice would be helpful. Thank you.

Don D

My suggestion would be to talk with your comp carrier to get their take on work related aggravations of existing personal injuries. Certainly they would controvert any claim made if there is proof of pre-existing same-injury. But, who knows what the outcome would be. On the other hand, if you were not aware of restrictions you couldn't be expected to address them. But, now that you are, you must. Compliance with restrictions isn't negotiable.

Mel in CO

I understand that compliance with restrictions isn't negotiable but the problem that I am having is just getting restriction information from the employee - they are fighting me every which way to not provide me with that information. I think that they feel it will be “invading” their private medical history but I don’t want them to be injured further – not only for the company’s sake but for the employee’s sake as well. Unfortunately, I finally had to get stern and state to the employee that they cannot return to work without a physician's release. With that said, just today I did finally receive notification of restrictions for the employee that had back surgery (I still haven't receive anything from the individuals with the broken ribs). Of course we can comply with all of the restrictions however how do we ensure compliance from the employee to the restrictions? Specifically, the employee every 1/2-hour has to stretch and move around after sitting for 1/2 hour. Is HR or her supervisor required to visit her cubicle every 1/2 hour to ensure compliance with that restriction or can we expect the employee to be responsible enough to comply with her own doctor's restrictions? I have a fear that this employee will not obey her doctor's restrictions and continue working without stretching.

Don D

Nobody has the responsibility to monitor an employee to ensure that she is doing such things as stretching routinely. Compliance with restrictions is a mutual obligation. The employer is obligated to ensure that the employee who is allowed to return to work with restrictions has none of those restrictions violated by demands of the job. The employee has a personal obligation, that he can accept or ignore, to follow doctor's orders. If you allow an employee to return to work with restrictions, you should discipline employees who you know are violating the agreed upon restricted return. If you agree to return an individual with a routing stretching restriction, your obligation is to allow for that stretching on the job at the intervals suggested by the physician. It is not your obligation to observe, monitor or document whether the stretching is occuring. As to the question of how does the employer make sure the person is stretching; you can't, you don't and you needn't. In your particular case, if you have knowledge of a driving restriction due to a back problem or broken ribs, you would be negligent in assigning driving tasks during the period of the restriction. Unless your state law suggests otherwise, you are free at any time to require a full release if you determine that you cannot accommodate a restriction. In our case, in our plants, we do not allow return to work with restrictions except in workers' compensation situations. (You know what they say about opinions - This is just mine.)

Mel in CO

Thank you Don D. This is the type of information that I was exactly looking for. I'm glad to hear that I don't have to monitor the situation. I am always a bit leery of a company's liability in these types of situations. Thank you again for your advice.

Mel in CO