whether to term a W/C case

atrimble

EE injured his back on the job about a year and a half ago, and has been on restricted duty ever since. EE recently re-injured his back shoveling snow on the job (which is an OBVIOUS no-no with a back injury, I know) and is now on half days light duty. He works mostly independently, because we cannot keep someone in his "partner" position. His last partner was able to assume the more demanding aspects of the job, so this injured EE "didn't have any problems" until the partner was terminated. His supervisor and I both think he's trying to use the W/C system to force us to give him a less physically stressful position. However, we do not have any positions for which he's qualified that do not have a physical aspect. The supervisor wants to terminate due to inability to perform essential job functions. However, as I mentioned, we have trouble filling this type of position. Plus, bless him, the supervisor has a huge heart that refuses to put this injured EE "in the poor house" (EE has $$ problems).

We are a small agency, and I try to take a hands-on personal approach (makes return to work issues relatively easy). However, I am feeling the crunch and KNOW that we have to terminate this employee before becoming terminally liable! We're checking all the FMLA/ADA, etc. regs (which the EE hasn't requested), and the agency has implemented a short term disability policy eff 1/1/04. I want to suggest that the EE take time off to recover (get a steriod shot or have surgery) and get some voc rehab training (computer or business or something we can USE). We don't want to lose his current skills and experience, but we can't use his body any more...

What are the implications or consequences if I "strongly encourage" the EE to take paid time off work to get vocational training?

-Abby, HR newbie

marc

I am posting because it's the 26th of December, Friday and many offices are closed. I do not have a great deal of depth, but absent any responses from forumites with more expertise, I would call both my workman's compensation carrier and my disability carrier and discuss this with them. Most of these carriers have provisions for vocational rehabilitation built into the coverage. That's what these insurance policy's are for, to take care of cases like these.

HRQ

Abby - I have some questions that don't apply to your question of whether or not you can term;
- is shoveling snow a part of this employee's job or was he doing this voluntarily and against the employers wishes? If not, the claim may not be compensable by W/C. Your w/c carrier can help you with this.
- if shoveling snow IS part of the job and he was told not to do this due to his restrictions but he did it anyway, the claim may not be compensable by w/c, and you may have disciplinary recourse for his failure/refusal to follow direction by a supervisor. I'm assuming that it is part of his job and nobody told him not to do it, even though he has restrictions against it?
- Most STD plans have a pre-existing condition exclusion, and his injury occurred prior to when the plan began. I always recommend the employee submit the claim "just in case", provide them with a Plan Summary and advise them that all claims are subject to approval of the ins. company.

Your original question was "can I term?" That's a question some of our more expert Forumites can help you with, I hope. As usual, I've wandered off track with my own questions. I always find with w/c (and FMLA and ADA, for that matter) one question usually evolves into several. x;-)

I definitely would start the FMLA process for this ee. Do a search for FMLA W/C for several discussions about putting W/C ee's on FMLA.

atrimble

You are correct in assuming that the snow shoveling was voluntary and no one specifically told him to do it, though the supervisor **expected** this EE to know better... Our w/c provider is pretty liberal in deciding what is work related and what isn't - liberal on the employee's side, that is! Since the activity COULD be expected of someone in his position, the injury counts as work related, though I did chastise the EE for doing it.

I've asked the w/c carrier what we could/should do, and they are very careful not to give HR advice. They gave me a "wait & see" boilerplate answer, and see if the medical condition resolves itself or whether the EE finally gives up and quits of his own volition.

Our FMLA goes by calendar year, and we've already decided that 2004 lost work on this EE will be calculated down to half hour increments. Still waiting to contact the STD carrier, and I really need more info on ADA.

Thanks for all the Day Off After Christmas responses! Glad to know I'm not the only slave around!

-Abby, HR newbie

mwild31

Hi Abby - you need to contact your worker comp. carrier straight away & put this question to them. Sometimes, when trying to do 'the right' thing, you inadvertently set precedence & or further your company's liability issues. Each state is different, sometimes vastly so, in worker comp. cases - research your states laws/regs on worker comp. in addition to contacting your carrier. I believe in the forum & the ability to answer many questions, but yours is very specific & not easily answered here without specific knowledge of the worker comp. rules in MO & your company's return to work policies. Good luck! x:-)

Don D

>EE injured his back on the job about a year and
>a half ago, and has been on restricted duty ever
>since. EE recently re-injured his back
>shoveling snow on the job

I'll be the 'goat' here and suggest that this employee has you exactly where he wants you. Restricted duty should not last a year and a half. Normally restricted duty lasts a maximum of six weeks. You would be better off letting the carrier jetison this employee out the WC tubes with maximum settlement. He is a continuing liability who will never go away if you keep coddling him and I've seen comp claims with people like him last four years, one jockeying after another. Put your emotions in a ziplock bag and flush them.

HRQ

Welcome back, Don D! x;-)

atrimble

Don, that's one of the things about this situation that's getting me - I know *I've* been "got" because of my lack of experience, but the supervisor has over 15 years experience with this stuff. And he keeps looking to me for guidance! I keep telling him to terminate the guy, and just hope that our documentation is solid enough to withstand a lawsuit (supervisor feels the EE's only recourse will be filing a wrongful termination or ADA discrimination suit). I think that if the termination interview is handled properly, the chance of a lawsuit could be minimized.

I'm still trying to figure out what our post-employment legal obligations are. If he's still employable (wrongful termination), then we're caught in one hard place, but if he is no longer employable (total disability/ADA), then we've found the other hard place.

Anyone have suggestions as to how to get the supervisor to cooperate? Meaning getting the supervisor to require the EE to perform, and if EE can't perform the "essential job functions," then terminate him?

-Abby, HR newbie

mwild31

Hi Abby

"I've asked the w/c carrier what we could/should do, and they are very careful not to give HR advice. They gave me a "wait & see" boilerplate answer, and see if the medical condition resolves itself or whether the EE finally gives up and quits of his own volition."

My guess is that your WC carrier gave you that response because they are hoping to avoid a costly settlement (perm./partial disability) and the entry of the ee into a time loss situation. These are costs that will drive up your company and ee costs. Rather than working counter to the advice from your wc carrier - work with them & don't move to an agenda for termination until they have told you that the risk of increased costs is minimal. Also, don't get into the habit of trying to push supervisors into termination situations - give the guidance - state your position & back it up with facts - but if your company structure is set up that your opinion doesn't over ride a supervisors - don't push. Good luck! & p.s. we've all been had by employee's at one time or another during our careers - best recourse is to get the claim closed as soon as humanly possible & learn from the issues & fight like hard from the get go on any new claims.