possible red flag??!!

judy matt · April 2004

Hello All,

I need some help/advice on a potential problem. I work in a hospital. Last week one of our nurses tripped and fell on a long telephone cord, hurting her knee. We sent her to the doctor and filed a subsequent worker's comp claim since she missed a couple days work. The attending physician indicated she was fine and could go back to work, and signed a release form stating just that. Well, she came back to work Saturday and said someone opened a desk drawer on her knee and she reinjured the knee. (the fact that the drawer was opened on her knee was disputed by a witness) She also said she had to lift a heavy patient and that put even more strain on her knee, (also disputed) stating she could not come back to work for a few more days. WE sent her back to the same doc and he said he believes she is okay to work "light duty", which we do not have a policy for. The doc stated what she can do and for how long he recommeds she remain on light duty. My question is do we take her back since we do not have a light duty policy? I am afraid if we do, she might injure herself again. I also might add, that the administrator wants her gone. She is a problem employee to start, which has not been documented other than word of mouth, so I will not sign off on a termination until that is done. I'm sorry this is so long but I needed to explain the situation with as much detail as possible. Your suggestions would be much appreciated!!!!
Judy in Covington, LA

deniseE · April 2004

Are the accomodations requested by the dr reasonable? If so, it may be best to bring her back and begin to document carefully. If you terminate now, it looks like you retaliated against her for the WC filing.

Cinderella · April 2004

I agree with Denise. Also, get thee a light duty policy!

Don D · April 2004

You need to check the comp laws in your state. There's no federal law addressing comp. In our state, which shares an imaginary border with yours, there's no such thing as comp retaliation and a comp recipient, injuree, can be terminated as easily as any other person. It is also a fact here that the aggravating injuries to an existing one need not be witnessed by anyone or agreed to by the physician, only that they exist, which can't be proved or disproved in your case, so they're paid. If you have good reason to fear that she is simply compounding intentional injuries, keep her off for awhile. That'll cost you more in the long run than restricted duty will. Also, if you put her on concurrent FMLA, you are PROHIBITED from requiring that she accept restricted duty. I think I might require that she work restricted duty just to aggravate her (no pun intended) and see where it goes from there. Then, work on termination if your management has reason for that and she's not satisfactory.

Whatever · April 2004

She is a problem employee to start, which has not been documented
>other than word of mouth, so I will not sign off
>on a termination until that is done.

Unless it is documented, there is no such thing as a problem employee. And just because the administrator wants the ee gone, it can't happen in this case at this point.
You need to accomodate if reasonably possible. First, because the recommendation comes from your doctor not hers. Second, you should have an accomodation policy. Third, you can keep an eye on the ee and start the documentation process.

Don D · April 2004

I'm going to disagree with my colleague, 'Whatever', based solely on MS law. Work Comp is this state, and perhaps theirs, does not require or suggest accommodation. ADA requires accommodations and that's the only federal statute that does. Unless their state law requires it, there is no necessity to go there. I see it as strictly a three alternative-financial analysis - (1) send her home until MMI and get charged for days missed due to injury OR put her on restricted duty. (2) Work toward termination AND consider the possibility of her comp payout being a high one. (3) Work with restricted duty, bring her back full time AND roll the financial dice on a series of future comp injuries and payouts.

judy matt · April 2004

I agree with Don because we do not even have to comply with FMLA here due to the fact we only have 20-25 full time employees. Our workers' comp carrier does not require that we have a light duty policy, and I agree because it can be ambiguous. I am leaning toward having her stay out for a couple of days if necessary to possibly prevent a problem that I'm sure is forthcoming. The pursuance of termination is also a direction we are going to take with the proper documentation, of course! I appreciate all of your input, now and always!!!

Whatever · April 2004

In NY, the ins. cos have a reserve for every claim filed. What is put in reserve does not always have to do with the extent of the injury. On top of that, experience also determines premium. And premiums for all insurance has gone thru the roof. In any case, the insurance company is always pressuring to accomodate as much as possible (the sooner they get back to work, the lower the experience and the reserve).
So that explains part of my thinking. The thing I perceived was that this ee is going to come back to work sooner or later. Whenever they come back (and I assume they'll play the injury for all it's worth), the ee will somehow be reinjured (yes. I'm cynical). If it was me, I would want to resolve this as soon as possible.

Balloonman · April 2004

Hey she is playing games so play back. How long is the waiting period in LA? Sit her at home for a few days while you decide what to do about restricted duty. Typically the employee does not get paid for the first few days they are out.
So sit her for a few days without pay, then bring her back in and work with her restrictions, then start documenting.

My $0.02 worth!
DJ The Balloonman

Don D · April 2004

You didn't get to be this cynical twisting balloons at birthday parties. Tell us about your childhood and how you really felt about your parents. You're among friends.

Balloonman · April 2004

I handled work comp in a number of manufacturing environments and have become an expert in dealing with abusers. People with legit claims loved me, people playing games hated me.
LOL, my dad and I get along great.........well mom that is another story. Twisting those balloons is about fun and carefree as anything....not stress or cynicism there.
My $0.02 worth!
DJ The Balloonman

LFernandes · April 2004

I would suggest having her go for a second opinion but would speak to your WC carrier first. Also, when I report a claim to our carrier, they ask if there are any additional comments at which time I would tell them about the conflicting witness statements.

Be careful of any state leave laws. Just because you don't qualify as an FMLA employer, there may be some state leave laws you need to be aware of.

Also, I would bring her back on "restricted duty" and have her do all the filing that has been piling up in the corners. x}> After a few days of that, she'll be happy to get back to regular duty.

Just my thoughts and opinion.

LFernandes

judy matt · April 2004

I like the idea of having her do all the filing!! I also love Baloonman's idea of letting her play the waiting game at home on her nickle! I am one of the most caring people I know, until someone tries to "mess me over" and I truly do feel something is up with this ee. I love this forum and all of the opinions you guys offer. It is truly great! Thanks a million!!!

Judy in Covington, LA

Crout · April 2004

Yup, nothing expedites the healing process like filing endless piles of paperwork. It's miraculous, really.

2445428 · May 2004

In LA the waiting period is 7 days.

SandiF · April 2004

Just curious...When an employee has been injured, I have never contacted workers comp; they contact me by sending a form I complete. They learn of the injury through the employee's doctor, who submits the claim to L&I (workers comp). Am I missing something or do we just do it differently here - Washiington State? - (which wouldn't be unusual). I've never had a problem, so this may be a pointless question.

LFernandes · April 2004

Do you have an insurance company who handles your workers' compensation?

I'm on the other coast (NY) and we have an insurance company that we go through and they administer our WC insurance. We are required to report workplace injuries within 10 days to our carrier and they in turn report it to the Board.

If you go on-line and lookup Washington State Workers' Comp, you may be able to find an employer's handbook. I know that NY has one.

Good luck.

LFernandes

SandiF · May 2004

Thank you for the information; I found our state's site. I was doing it correctly; the employee's doctor submits the claim to L&I and I complete the employer section when I receive it. We don't have an insurance company that administers this insurance. We have a contact at WC that handles our account.

possible red flag??!!

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