STD/WC Claim/Potential Fraud & Termination Rolled into 1

bergpj

Here's a doozie. Eighteen person office, non-profit, FMLA does not apply due to size.

January 2: After drawing down PTO, employee filed for short-term disability for abdominal pain and fatigue (stating in advance she would be taking 13 weeks). Umm ... not your choice. Was put on unpaid leave as STD start date was intended for January 2.

January 14: Voicemail left with supervisor saying physician's diagnosis was intestinal virus - taking antibiotics for two weeks.

February 13: STD denied as employee & physician indicated illness was due to work. Insurance carrier directs her to file a worker's comp claim. If WC denied, she can appeal STD denial. Employee called for first time in four weeks, saying she still had abdominal pain and fatigue. Intends to appeal STD decision.

February 14: We file WC claim. Even though fully expecting another denial, want to comply with 3rd party reference that there may be a legitimate claim. Expect process to take another 4 weeks.

February 15: Find e-mail trail on work computer (our internet/computer policy states no expectation of privacy) in deleted files dating from October 2002, indicating employees intent to leave our employment by January 1 ... needs to find other job for overall health reasons ... is moving in with friends so she can get by on less money. Another hmmm ... I wonder if 60% of her salary would suffice.

We want to terminate this employee. But can we?? Have WC claim in process (can't create appearance that we're terminating due to a WC claim being filed). Although employee is morally fraudulent, does e-mail trail indicate potential insurance fraud (physician did have to sign off on illness, after all).

Our procedures for unpaid leave do not specify a maximum time limit, but do state an employee's return is dependent upon having a position which in our judgement matches the employees qualifications. If she gets wise and tells us she wants to return next week (the position has not been filled), can we deem her unqualified based on what is now a trust issue?

This one's sticky ...

Pork

bergpj: Your are right this is a "doozie"! What does your company policy tell you about how to handle this situation? (you don't have to answer these questions, just a thought for your consideration.) If a procedure does not exsist in written format, then, are there any similiar cases from which you can glean a path of proper handling this case?

It would appear to me that there is something wrong here, if the physician puts this into a worker's compensation issue from a stomach virus???

Without FMLA and with the use of company property, the computer for the conduct of personal business, again, based on your written company policy, you would have a right to be looking at a dismissal for violation of company policy, if that is written, that is an event for an immediate terminating event in our company. You can terminate, if one is on W/C; however, make sure the termination can not be construted as a retaliation of her W/C.

Pork

Mentel

If she is on an unpaid leave, it isn't costing you anything in salary. Since she has been off for over a month, put her on COBRA. When she finds out what it will cost her for insurance, she may be back in a hurry or get herself a new job. As long as it doesn't cost you anything, let the WC claim process go ahead. I would fill her position as soon as possible so she doesn't have a job to come back to. WC will deny benefits because the stomach flu is not job related. You may want to do some follow up with her physician as to her actual condition to return to work. You could also have her seen by your own physician. I would use the local immediate care center that does employment related exams. I terminated an employee this last July that was had been out on a WC and we looked at her computer. It turns out she was shopping and surfing the net for the previous month or so while at work. Even when she came back from WC leave and we gave her a new password (she should have realized we were looking at her computer) she continued to do this. I fired her eventhough out WC carrier was not in favor. Our WC carrier paid for the remainder of her physical therapy. She never got UC because of the termination for fraudelent use of company equipment and time.