Texas Workers Comp

ccalhoun

Our company has a neutral leave of absence policy which limits all LOA to a total of 12 weeks,exclusive of any statutory protection (including Workers Comp injuries). I checked with SHRM (Society of Human Resources Management) on FMLA and we are OK with this but questioning if this is in compliance with Texas Workers' Compensation Act as noted on page 6 of December 2002 issue of Texas Employment Law Letter.
Company wants to terminate an employee who has been out on Workers Comp since July 2002 and on FMLA since October 1, 2002 and is not released to return to work. All other leaves only are allowed 12 weeks, can employee be removed from payroll and health insurance benefits?

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 12-13-02 AT 09:18AM (CST)[/font][p]Texas worker's compensation law does not require employers to give employees on workers comp any particular leave. What it does require, is that employees on workers comp are not retaliated against. To prove retaliation, an employee would try to show that other people who had not made a worker's comp claim have been treated more favorably (granted more leave, or given a second chance, etc).
Retaliation claims are made fairly frequently in court, and have ended up in some very large verdicts. Before terminating the employee, the company should review its applications of its leave policies to ensure that employees have been treated consitantly.

If the employee has exhausted all company leave and all FMLA leave, and the company has enforced its leave policies consitantly, the employee may be terminated even if he or she is out for a workplace injury (that is assuming that the employee cannot do the job, with or without reasonable accomodations).

One Caveat: Under the Americans with Disabilities Act, some courts have held that granting additional leave may be a reasonable accomodation when the additional leave has a specified end date, and the employer can reasonably afford the accomodation. (This assumes that the employee is disabled). This might apply, for example, if the employee's doctor says "he needs two more weeks of therapy or treatment, then he will be able to return to duty.") Before terminating the employee, the employer would be wise to consider whether some additional leave would be required under the ADA.

If a company does terminate the employee, the company must also remember to advise the employee of his or her COBRA righst.

Please note that the information in this email is a general statement of the law in Texas, and is not specific legal advice related to your situation. Since we have not entered into an attorney client relationship, I cannot give you detailed specific legal advise on this situation.

Good Luck!

Theresa Gegen
Editor, Texas Employment Law Letter

Balloonman

I used to deal with Texas WC, that is why I now have lots of gray hair! Yes I believe you can terminate, but then you are most likely going to see the value of the claim rise significantly. Once fired the individual will never be cleared for work and will collect a check for as long as humanly possible.

My $0.02 worth.

Dj The Balloonman

Mike Maslanka

baloonman,that is a good point,but we have seen many employers end up with a work force filled with light duty jobs,people who can't perform the essential functions of the job,and a host of other problems when worker comp costs and issues drive the business and not the other way around....it all comes down to how you want to manage your business...regards from texas,mike maslanka

ccalhoun

I just breathed a sigh of relief the size of 10 on the reichter scale. Thanks sooooooo much for the positive feedback. Your response & input is appreciated. Happy Holidays, c2

bsa

Eventually, the doctor will assign a MMI (maximum medical improvement) rating. The rating will be used to calculate a final payout based on the percentage of impairment to the whole body . If your w/c carrier has not assigned a case manager, ask for one. The case manager is able to speak medicalese with the doctor and can assist in getting a MMI sooner.

I had a back injury that just seemed to drag on and on. The ee kept missing appointments and the chiropractor wouldn't release the ee because he hadn't completed his treatment. The case manager pointed out to the chiropractor that the ee was "directing" his own medical care ... not the doctor (made the doctor disgusted with the ee!). The next appointment the ee kept, the doctor evaluated his progress and assigned a MMI. The case closed within a month!

RoseF

Get a "good" Functional Capacity Evaluation (contact me! our company does them in Houston....). The Medical Case manager can write the script for it. An Occupational Therapist should conduct a 3-5 day FCE to give the Docs and YOU the Employer the objective, real and true skinny on the degree of recovery and/or a realistic projection on return to duty status.