W/C - conflict of interest

Melanie

To all:

I have an injured worker who I am trying to determine what to do next. She was hired as a contract driver - we run senior citizens to medical appointments as needed, no set schedules since medical appoinments vary, also, typically most drivers only work 3 days per week. Well, three weeks after she was hired she was involved in a car accident during one of those runs, therefore turning into a W/C injury. Well, the doctor has had her off since her accident which was March 19, because she has claimed numbness and pain in her legs. Since her accident the doctor has done an MRI, EMG, X-Rays, and a few other tests. The last test, EMG, came back negative, so the doctor has given her a release to go back to work, because he can find nothing medically that would cause her numbness and pain since he has run a million tests.
However, the injured worker is upset and says she isn't ready to come back to work because when she has tried to drive - since she can't feel her leg due to "Pain and Numbness", she said she runs stop signs when she tries to drive. I would love to send her out to drive again because I feel that with the doctor's release, she should drive. However, are we putting ourselves in a precarious situation since she claims she runs stop signs? I fear "fraud" of not wanting to come back to work because she makes more on W/C wages than she would through us. Because W/C assigns wages based on their previous year of work and not the wages and hours worked in the three weeks with us, her wages were set at $231/week, when most of our drivers only make $118/week since they are only as needed. Therefore, this makes me fear fraud, also, the longer she is off, the higher her amount of settlement she gets through our third party administrator, and the higher our risk with the BWC stays.

PLEASE HELP, I'M OPEN TO ADVICE!!

Down_the_Middle

I think I'd offer her to return to work, in accordance with her MD's statement and explain to her that in the absence of any objective medical findings you believe she can perform her job safely. If she refuses to come back to work, your state probably allows you to file a "lack of cooperation" motion with W/comp and you can proceed with getting her lost time benefits discontinued. I wouldn't let her admission of "running stop signs" intimidate you since there seems to be no medical finding to support this. I'd probably tell her that if she refuses to return to work you'll be obligated to report her inability to drive to the state DMV. It's important for her to understand about her obligation to return to work and if she doesn't, she must understand what might happen. If she returns to her MD and gets addt'l restrictions, then you'll have to deal with those. Assigning an aggressive case manager (via w/comp) may be helpful in either getting this person back to work or at least informing her that she's not going to milk your system. You may have to "manage" her back to work and it probably won't be easy, but remember you have many bystanders watching how this is done and it will send a message to the workforce that your w/comp program is not a free lunch. Good luck!

Melanie

Thank you for the feedback. My fear is also of the worst case scenario, "What if we put her back to work, and to prove her point that she has pain and numbness, she runs a stop sign and seriously hurts or injures someone." That puts us financially at more risk than before, correct? Any advice you can offer to put my fear to rest? Can we terminate based on the fact that she has been released by the doctor yet she refuses to work, and this is the only type of work that I have available, no other positions open?

System

This is simply a personal opinion, but I wouldn't entirely discount her story of still feeling numbness and pain in her legs. I know some people really are trying to milk the system, but I also know a couple of people who have severe problems along that line and the doctors cannot figure out what's wrong. I think it would be risky to put such a person in the driver's seat as your employee. Maybe it would be okay to require her to return to her job if didn't present a possible safety risk, but driving senior citizens (or anyone else) around town?? Scary. At the same time, I wonder if you would have to keep the job open if she can't perform it. I know it's not the answer you want, but you probably need to have an attorney look at the situation. If you have more than 50 employees, the ADA and the FMLA could come into play if she's disabled.

Tough call!

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Down_the_Middle

Termination may be an option if you treat her the same as all others who have been off work for 3 months and were terminated. Since that's probably not the case, I'd be reluctant to discharge her. Do you have a transitional duty or work hardening program that'll enable her to return on a more gradual basis, thereby relieving some of your fear? Certainly an option is to turn your back on it and let her stay in the w/c system, but I don't think that's a wise or responsible decision. Christy's suggestion of contacting an attorney is a good one and may help remove some of your "what if" fears. Don't forget to document all that you do, including your thoughts processes, so that your record reflects thoughtfullness and prudent deliberations.

CuriousG

Every state's Worker's Comp program is different, but I think I would discuss with my comp carrier the possibility of petitioning to end TTD benefits. There does not appear to be any medical evidence to support the payments. If you successfully do that (usually you can stop them in anticipation of a favorable ruling from the comp system) the employee will experience a near miraculous recovery.