Oh My Aching Back

Carol CA

We have an exempt employee who has been out off and on due to a "poor back". Now he has been off since Wednesday and just called today (Friday 9/6/02) saying that he will be off work until October 1st and is filing for disability unemployment insurance (we are in California). He said he didn't have a note from his doctor, but would the claim for disability be sufficient? I told him no, we needed a note from his doctor. I also told him we may have modified work available. As he works in an office/lab setting we could arrange to have an area where he could lay down periodically if needed. He does not do any type of lifting. He didn't seem interested in this and said he would follow up with his doctor to try to get a note. He said the doctor might already be gone for the day, so if he didn't get it today, he should have it by Monday. Now this was at 10:00 this morning - and the doctor is already out? I knew this guy had a history with complaining about his back, so when he said he would now be out for almost a month, I said, "Oh my goodness, what happened?". He didn't know, but said he must have done something to aggravate it. Now I guess I'm just being too skeptical here, but if you do something to injure your back where you need to be out for a month, wouldn't you remember it?

As my red flags are going off, my main question is, what kind of documentation can I legally request when I place this guy on FMLA? I thought in California that you couldn't delve into the employee's medical condition, and a simple note is all we could hope for. Are there some standard Doctor's opinion forms somewhere you can use for FMLA in CA?

Thanks!

Rockie

I think you are absolutely correct in getting a doctor's note. I would be surprised if he would be able to file for the disabiity unemployment without backup from a physician.

The fact that he isn't interested in any modified duty work or the fact that he cannot tell you how he "aggravated" his back condition are viable concerns. Back injuries are the bane of Workers' Compensation claims as many of them cannot be substantiated and the WC Commission (at least in South Carolina) is very much pro employee.

njjel

On the flip side, as one who suffers with back problems I can not always tell "what I did" to aggravate it or when. But certainly you should insist on medical certification. However, don't be surprised when he brings it in.

Don D

How did this come out Carol? I got beat up over the migraine issue and the fresh flower child; But, I think I can tell you that you can take it to the bank that no doctor is going to say, "Hummmmmmmm, sounds like a back thing alright; I think I'll put you off work for, say, a month." Ain't gonna happen. Maybe an aggressive physical therapy prescription (3 x weekly for an hour x two months). Maybe a referral for an MRI. Maybe a referral to a neurosurgeon. Or maybe ongoing pain management (a bottle or two of pills). But, I don't think there are any other alternatives. I would rate as a quack any doctor who would send me to the house for a month for a 'bad back'. I had back surgery five years ago and missed 3 days of work. x:-)

Carol CA

Well our guy was able to find a quack. I did get the doctor's note confirming he needed to be off work for a month. I even called the doctor's office to confirm it was official. When I said we probably had modified work available, they told me to put in writing what type of modified work we had and mail it to the doctor who would consider it. This guy also filed for disability benefits. He had quite a bit of sick leave accrued, so most of the time will be paid at 100%, but state disability will kick in for the last week (or if he continues to be off after 10/1).

We decided not to push the modified work angle since right now this is not a worker's comp. incident. I can just see us providing modified work, thus forcing this guy to return to work, only to have him "injure" himself again - this time on our nickel.

Secretly, we're hoping he is out interviewing and doesn't come back!

Theresa Gegen TX

You need to give him the FMLA medical certification form (I believe it is available on the DOL website). He has 15 days to return it.

Good Luck.

PAhr

You can always tell the employee that you need him to see a doctor of your company's choosing and at the company's expense. If that doctor says he needs the time off you legally must grant the FMLA at that point. If that doctor says he can return to work, the employee can request a third (and final) opinion. This doctor has to be one not affiliated with either the company or the employee, also at the company's expense and his determination is final. Hope this helps.