WC Retaliation

Rockie

We have an employee who has had two WC claims since she has been working with us. (About 90 days). One was a back injury (Imagine that!) and the other was an auto injury while traveling for work and....you guessed it!!!!! reinjured her back. Anyway....to compound the issue, she has started not pulling her load.

My question is how can be discipline and/or ultimately terminate the employee for performance issues without a retaliation claim (probably impossible, huh?).

I would say careful documentation unrelated to her injuries, but I am sure that is no guarantee this person would not consider it retaliation.

Any suggestions?????

Margaret Morford

This employee will sue you. Count on it! You should document the performance problems, which she will say are related to the pain she is experiencing in her back, etc. (Okay, I now sound like our resident Curmudgeon, Don D!)

I'd get her to maximum medical recovery as soon as possible and offer to settle with her. Your settlement offer should include a "Do not Darken our Door" clause as well as a confidentiality agreement. Your only other alternative, if you believe she is not really injured, is to hire survellience to catch her on tape. WC fraud is very serious and many times the employee will go away just not to be prosecuted. However, you must have a lawyer handle this negotiation for you. You do not want her to be able to say later that she was coerced or that she agreed because of the threat of criminal prosecution. Hope that helps!



Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

bsa

Margaret slam dunked this one.... do all the things she suggested. Your W/C carrier should be able to help you with attaining maximum medical recovery, negotiating a settlement, and conducting a W/C fraud investigation if it's appropriate.

Also, a care management nurse will help assure that the employee is getting appropriate medical attention and follows the doctor's orders. The nurse will give you/your carrier accurate medical interpretation without emotion. She works for you/your carrier, but will present herself to your employee as being there to help and truly does help --both sides. I had a nasty case that just seemed to be dragging on and on. When we got a care management nurse involved, she was able to communicate with the doctor on his level and we were able to close the case to the satisfaction of all.

Don D

We are adamant about plant supervisors giving disciplinary writeups for safety violations and near misses. But, we proceed with a special bit of caution with a writeup following a comp incident for the reasons you fear. However, if a thorough review and investigation reveal that there was employee negligence or violation of rules, there is going to be a writeup. The ee can suggest it's retaliation, but our thoroughness will suggest otherwise, especially since our response and action are always so consistent.