Workers Comp question

hrqa

My company in Tennessee works with people with disabilities mainly in their home enviroments or out in the community. In 2003 one of our employees has a WC injury when she hurt her back moving a patient. For years she has continued to work the most light duty we have which is basically keeping someone company, no lifting, driving etc. for two 12 hour shifts on the weekend. During the week she does light duty in the office for 16 hours to give her a total of 40 hours. This position was mostly made with her in mind to insure she would have a FT job. She mostly has continued to have WC for pain management issues. Now she will have a pain management device implanted that will not allow her to work the direct support weekend position. We do not have funding or actual need to have her work any more hours in the office. My question is what obligation do we have as her employer to "make" a position for her in our office?

davids

Unless Tennessee statute says otherwise, no, you do not have to create a job. The organizations I have worked for always had a cap on light duty assignments of up to 90 days. After 90 days, if the employee is not medically stationary and cannot perform his/her regular job, s/he goes back on time loss. If the employee is medically stationary, but can't perform the duties of the job-at-injury, our workers' comp. carrier will look to place the person in a retraining program.

Once you have allowed someone to work light duty indefinitely, you have created an expectation that you will take care of the injured employee indefinitely.

hrqa

Thanks, that is very helpful.

ritamcguire

We recently experienced a similar situation. When our employee was first injured, we gave him a light duty administrative job. He did this for an extended period of time and although the doctors (the original doc & a second opinion doc)both cleared him for regular duty, he still complained of pain when he wasn't at his light duty job. He wanted the light duty job permanently. We explained that there was no such job on a permanent basis and arranged for him to do a "Functional Capability Evaluation (FCE)". The FCE found little wrong with him except that he complained of pain when doing anything other than sitting. The FCE granted him a token disability (<5%) which was settled by our work comp insurance for a few thousand dollars. We terminated the employee because we had no job that met even his minimal FCE disability restrictions. The admin job was only given him during his period of light duty. He took his settlement and as far as I know is now working for another company.

Everybody won. The company did not have to create an unneccessary position to accomodate him. The insurance carrier had a onetime minimal payoff and didn't have to worry about a longterm injury. The employee made a few thousand dollars and was able to get another job. Not an ideal solution, but I believe it was the best solution for all involved. As for his current or next employer; sorry, but we've all been there.

hrqa

Did your WC carrier arrange for the FCE or did you handle that independently through a local doctor?

ritamcguire

Our WC carrier arranged for the FCE.

NeedCoffee

Definitely start working with your WC carrier - they are the pros at this! Along with the FCE, you can also request a determination of whether the EE has reached MMI (maximum medical improvement). This will also go towards settling the case for good. If at that time you realize there is no position for them based on their abilities, you're able to terminate their employment.

Elizabetharess

How does FMLA figure into this? Am I right in that the injury was WC related and if the employee is now working with restrictions that are not working out, she is not protected by her FMLA?
I am asking because we too have a situation that is very similar.
Thanks

HR In NH

FMLA runs concurrently with WC absences, but FMLA does not require you to accomodate restrictions - it just protects for absences. If someone is working and not missing work time, there is no FMLA protection.

As you know, the ADA does require accomodations that are reasonable, but not every injury qualifies for ADA protection. The disability has to be a physical or mental impairment that substantially limits one or more major life activities, generally on a long-term or permanent basis.

Elizabetharess

Very interesting. There are so many ins and outs that it boggles my mind. Once again I work for the case study of the Murphy's Law Syndrome.
So, we send FML documents to an employee that will miss work for an injury but do not need to accomodate restrictions unless it applies to a true Disability?
Thanks everyone, I love this website.

stilldazed

Sounds like you've passed a major magic moment in long-term w/c issues that would be good to consider in the future. Not to sound critical, but manage the mess the best you can to get your company out of it with minimal expenditures and learn from it.

There is a point in time where a patient is considered to have reached MMI--maximum medical improvement. You should never 'create' a position to accomodate job modifications for w/c unless you are willing to do it for all modified job duty situations, but as long as you have work available that will fit within the restrictions, you are free to do so until the employee reaches MMI. Once that happens, the medical professional has declared that the worker will get no better with further medical treatment, and if the MMI is less than 100%, there will be lifelong limitations. Doctors are prepared to identify those for you. At that point, you would look at the lifelong limitations--the tasks that the worker can no longer be expected to perform--and decide if you still have a job available. If you do and the employee is qualified, offer it and let the employee decide. If he/she takes it, fine. If not, he/she resigns. If you don't have work, you let the worker go.

My advice (from experience with a company that used to be notorious for doing so) is to never try to extend a FT employment relationship for the sake of preserving the FT status. It is just too easy to get into the kinds of situations you have described, even when there is no w/c in the mix.

Best wishes.

hrqa

I agree with everything you pointed out. I think we realized too late what we had done in order to help a good employee. The "created" job is actually beneficial to my company but it can not be expanded to a full time position. We have explained that to the employee now and fortunately she has taken it well.