Can we ask? Part 2

durasupreme

Thanks for all the responses. We have a new twist on this. One of the ee's I referenced, who has been employed with us less than 45 days now has filed a WC claim stating a back injury. As part of the investigation he stated he has the permanent limitations from a back injury received at a prior employer. When we hired him (and discussed lifting specs of the positions hired for) he did not state he had any limitations, permanent or otherwise, and now is alleging aggravation of that prior injury. He apparently received a settlement from that prior injury, thus this will likely come back on our shoulders. Thoughts??

marc

I readily admit to having little ADA experience, but it seems to me this guy (and others like him), do not offer the company any opportunity to mitigate the problem(s) that could arise. Shouldn't the responsibility fall back on this guy for not disclosing the possible restrictions?

E Wart

First, do you do any type of post offer physical? I normally dont think they are worth much, but in this case it might be.
Secondly, I would talk with your W/C carrier about whether your state has a second injury trust fund (which we do in GA.) It is set up to encourage employees to hire employees who might have had previous medical conditions/injuries. If the employee knows about the injury before the current w/c injury, they can recover some of the funds they spend on the w/c claim fromt he trust fund.
I would also have a talk with the employee and make sure he has a copy of his position description (has one been givent to him before.) If he refuses to do anything due to medical condition, I would certainly get something in writing from a doctor and work with the employee on any recommended accommodations. If none can be made so that he can do the job, I would say that he can't do the job and would have to be terminated.
Good luck.
E Wart

LindaS

I would make sure you informed your WC carrier that you were not made aware of any permanent restrictions and want this investigated. The carrier will then speak with the EE to find out if he did, in fact, provide you with the restrictions. The EE will also be questioned as to WHY he knowingly took a job that was outside of his permanent restrictions. It MAY come back that it is your responsibility but it's quite possible that the claim will be denied due to the fact that a) he had a pre-existing injury, b) he knew the job was outside of his restrictions BEFORE he accepted the position and c) did not make you aware of any permanent restrictions. It will probably be a long haul but one I would fight.

mwild31

Hi durasupreme - I agree - it will likely come back on your shoulders. Have your w/c insurer investigate - put this employee on administrative duty - anything that won't hurt his back & wait for the verdict. You can always terminate - but it will defeat your purpose of trying to minimize your time-loss exposure. On the other thread - did you say that this person had signed a job description/statement that he knew about the physical demands & he didn't have any issues? If you do, it may help the investigation go a little smoother. Otherwise my friend, if it's an aggravation of a previous injury - you may very well end up on the hook for the aggravation.