injury-prone EE hurt again

We have an employee who is on-the-job injury prone (4 claims in last three years). Most recent injury resulted in a herniated disk. Restricted to lifting/moving 30 pounds, which can be accommodated temporarily. However, as is common with back injuries, we are worried that the employee may never be released to full duty. He has missed ONE day of work, post steriod injection. From what all treatment I've seen, his condition may or may not qualify for FMLA protection.

My question: how long do we have to accomodate a reduced work load? I understand that we should be working with the treating physician to get a return-to-work or fitness-for-duty plan in place. But I'm imagining worst-case scenario - never released, or the plan is over two years in duration. Do we have to keep him on that long (as long as he doesn't end up qualifying for ADA protection in the interim, I mean)?


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  • Hi atrimble - the quick answer to your question: "how long do we have to accomodate a reduced work load?" is, you can stop right now if you want to. It sounds as though his injuries occured at work and therefore, his injury is covered under worker comp. You can either pay his wages or your insurance company can. When he's better, offer to have him come back. If he declines, great, but if he accepts then bring him back. It's not an adverse action - the employee is still receiving compensation. However, you will pay for it one way or another. You'll either pay for it now (with having him present at work, working in light duty capacity) or you'll pay for it later through higher insurance rates...

  • From what all treatment I've seen,
    >his condition may or may not qualify for FMLA
    >My question: how long do we have to accomodate a
    >reduced work load?

    ATRIMBLE: I do not understand you concerns for the treatment and qualifications through FMLA? Treatments are not a consideration of the qualification for FMLA. Time worked and one year of service are the criteria for FMLA consideration! Additionally, W/C injuries and FMLA are not supportive unless your company policy has them running concurrently.

    What I look for in a W/C claim is the MMI (Maximum Medical Improvement) identified by the physician. Until I get that the employee is not considered for a medical disqualification and termination. Physician's will never make that call for the company that is what the HR is paid to do! As we move through the life of a case, we are paying disability pay that he/she will ultimately get, as much as 464 weeks for some injuries. If I can get the person back to work on reduced activity we are still paying but the carrier makes up the difference between his/her disability payments and our hourly rate of pay for the restrictive duty position. At least we are getting something of value for our money spent. Now, it might not work that way in your state, so check it out with your attorney.

    There are some restrictions that are "safety issues" and these employees will not be placed back on the work floor until the restrictions are changed! There is an end to the total value of one's injury you pay it now or you pay it later. I have never seen one of these without an attorney attached. Our state does set a limit, but it is rather high for the outward signs presented by the employee while in Walmart or some other hang out.

  • [font size="1" color="#FF0000"]LAST EDITED ON 03-02-06 AT 04:02PM (CST)[/font][br][br]>I do not understand you concerns for the treatment and qualifications through FMLA?
    The injury is not so serious as to have made the employee miss work; it's the treatments that have made the employee miss work (one day post treatment), and he's scheduled for at least one more treatment. I think that qualifies the condition for FMLA protection, but I'm not sure.

    >Additionally, W/C injuries and FMLA are not supportive unless your company policy has them running concurrently.
    Our policy does have them run concurrently, and that is the point of my question. If the injury (and subsequent treatment) isn't quite enough to fit the bill under FMLA, then can we legally initiate FMLA provisions? We've got a rolling year for our FMLA usage calculations.

    >What I look for in a W/C claim is the MMI (Maximum Medical Improvement) identified by the physician.
    The employee had been released with MMI, but the pain returned even worse the next day, so he was sent for further diagnostics and the real cause was discovered, which required a treatment that required time off from work. But the employee hasn't missed enough work in the proper time frame to merit disability income, and we typically do not transfer an employee to a different position during work restrictions so there is no reduced income; while on modified job duties, employee just don't do activities that would violate their restrictions.

    >I have never seen one of these without an attorney attached.
    Having done this for only three years, I have never dealt with an employee's attorney regarding a work-related injury. We have called in our attorney one time when we decided to terminate, post-injury.

  • Do you provide light duty for employees on Work Comp? We make sure the doctors we send ee's to know that we provide light duty. The doctors we use know that we have this available including what we describe as "no Duty", they watch safety movies or read safety literature and are paid their regular wages. We do this even with most surgeries, we are in a repetive environment and most time ee's that have had surgery are returned to light or no duty the next day. That way we know what they are doing, they receive full wages and our no lost time helps our MOD, which in turn helps our premiumn. We use the best doctors we can find in the applicable field because it pays off when you get before the judge. We track all costs and treatment because Missouri gives the employer the right to do this. We do not simply turn this over to the insurance companies, we work with them and most of them love us because we do their work for them. We only send ee's to those doctors that get us treatment notes right away, most have toured our facility as has the administrative judge in our area. We have developed a reputation for taking care of our ee's and it has paid off. We have no problem getting MMI and ratings when appropriate.
  • Yes we do provide light or modified duty. Basically, if they have restrictions, they perform all duties that don't violate those restrictions. If none of their assigned duties can be performed, we try to find other work, but usually our employees are so specialized that that other work is beyond their capabilities, so they get time off.

    Update - this ee has been working all along except for the 24 hours after both injections. He is restricted to 30 lbs lifting or pulling, which we can accommodate for now by assigning an "at need" assistant to perform duties requiring 30 lb lifting/pulling. But because this assistant has their own duties, we can not carry on this arrangement forever, we are already losing productivity from the other employee. So, back to one of my original questions - how long do you have to accommodate a modified duty assignment? Does FMLA apply to missed duties instead of just absence from work? We have not modified his pay rate. Yet.
  • Atrimble you should take your restricted duty policy and update it. Putting a maximum amount of time that a person can be on restricted duty, say worst case 26 weeks with re-evaluation after 13 weeks.

    Also were they violating any safety rules when they were injured any of the four times? You can and should discipline for violating safety rules and or working unsafely.

    SO if you disciplined him, and he continued to work unsafely you could fire him just like anyone else.

    My $0.02 worth
    The Balloonman
  • Our supervisors have traditionally been afraid to discipline for any reason, let alone a touchy work comp situation... and I don't have the authority: I'm not senior staff. I am the work comp manager, and I'm on the safety committee. Talk about being hamstrung.

    But, in this particular instance, no, the employee is apparently just clutzy. The last incident involved carrying a ladder and the balance shifted, popping some tendons in a finger. This incident involved pushing a trash dumpster with a broken wheel out to the curb.

    I agree that our policy needs to be updated and clarified. Actually, I created our first return to work procedure year before last which our supervisors are ignoring because we have so few incidents that require a return to work plan... usually it's "put anti-burn cream on that blister and go back to work" or "put ice on that sprain when you get home but go back to work for now."

    Wouldn't it be kind of weird trying to place this ee into a return to work (or return to full duty) plan months after the incident and a month after the last absence? Couldn't it be construed as retaliatory?
  • Would anyone care to share their return to work policy with me? [email][/email]
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