Help! I need an answer quick!

Our company did not have an accident investigation plan in place when I came into the HR position a year ago. I still have not had time to institute one (I know, shame! shame!) because I've been so busy cleaning up other "messes." Well, it finally happened. I have an employee who I think is faking an injury. He's on work restrictions for a back injury and starts PT Friday. There are quite a few reasons why I think he's faking that I don't have time to write right now, but one thing is he seems to be trying to get as much WC paid time off as possible. He keeps telling me he can't find anything to do. I make suggestions of what he could do, I refer him to his supervisor, but he keeps coming back to me with excuses. If he refuses to do the work we're providing for him, I'm going to have to send him home. If I send him home, do I have to pay him since this is Workers' Comp. related?

He's coming back any minute now! Help!


  • 9 Comments sorted by Votes Date Added
  • kdspa:
    I'd recommend ASSIGNING him those tasks that he's physically able to perform (w/in his restrictions). His failure to perform them is a performance issue and would be appropriately handled that way. Expecting him to seek out duties that he can perform is risky cuz you're permitting him to choose duties that may or may not be beneficial to the employer or him. Sending him home will certainly obligate you to commence or continue lost time payments and you've defeated your attempts to integrate him back into the workforce.
  • Our Worker's Comp. provider tells me to have them count paperclips if necessary - keeping the employee off the WC paid time off will help keep your premium from going up. We give the employee assignments - no matter how menial.
  • In our state, if the employee refuses the modified duty we offer per their doctor's recommendations, the employee is NOT eligible for workers' comp disability benefits.

    If the employee has issues with the duties and claims he can't perform them due to his injury, he should be directing his complaints to his DOCTOR who made the recommendations in the first place, not to HR.

    Good luck!
  • Spend 30 minutes reviewing his restrictions and finding the crappiest job or part of a job that is within them. Tell him that is his assignment. Spell it out in writing to meet your modified duty restiction we are assigning you to the task of XXXX until further notice.

    If he comes up with excuses explain to him the doctor knows best, and your hands are tied, no work no pay. No work no WC payments. Also remember he is still held to all of your rules including attendance if he fails to come in.

    My $0.02 worth
    The Balloonman
  • KDSPA: You are way to close to this action! Your carrier is the one to administer to his case and you cooperate by providing him with moditified duty, if that is what the physician has ordered. Your "light duty or modified duty" should be approved by the physician. Unless you are involved with the physician I would get this person out of the work area. As long as, the person is out of the work force on doctor's orders the carrier will be paying a short term disability. Yes, he/she gets that until the physician returns the person to the work force with out any permanent damage.

  • First your W/C company I am sure has a nurse consultant that can help you with this. Secondly someone, either your company or the W/C nurse should have instructions from his doctor. Once these are obtained, you (the company) decides what he should do. He should be told/spelled out what is expected of him. If he refuses, then he should be told before he leaves that he is leaving on his own, there is work available for him to do and you will report this to the W/C carrier. (I am sure that if work is offered at the rate he was previously making, then W/C will not pay his indemnity payments.) If he "doesn't want to do the work", tough. He doesn't get to decide what he wants to do or doesn't want to do. Again, work with your W/C carrier. They will help and support you on this. You don't have to be the "bad guy". Stand firm or could set you up for future situations.
    E Wart
  • Do you have a physical capabilities checklist? This is a one page form for a doctor that goes over lifting, driving, manipulation, crawling, squatting, etc. We get these from the doctor and then go over the work duties with the supervisor. If it is in the range indicated by the doctor, the employee is able to do it. If not, he would have to return to the doctor and get the report modified. At that time, get your carrier to schedule an IME (independent medical exam) to find out what the employee is really able to do. Back injuries are really hard to prove and document fakes. Also consider having a private detective institute surveillance to see what the employee does on off hours. Do not feel pressured by time. Employees who do this will keep up the pattern of what they believe is successful behavior.
  • Can't speak for your state. I'm in Florida, and W/C is driven by state law.

    I had a similar experience with stepping into a poorly run HR function with more than enough "opportunity" for me to shine. You probably know this already, but if you hang in there, things will get better and you and your organization will benefit greatly.

    I have a couple of questions:
    Is your company self insured? Do you have an early return to work program in place?

    If you are self insured, then you are in the lead to decide what to do next. If not, inquire with your w/c claims/risk staff on a proper next step.

    If you have a formal early return to work program, use it and get the worker to sign an agreement that work has been offered. Outline job tasks that have been offered on the agreement and ensure that the tasks fit within the worker's medical restrictions. If the worker continues to deny the work, you may not be completely relieved of the claim, but you may be relieved of some of the lost wage burden.

    While I would work toward getting an investigation process in place, and it may be easier than you think, I wouldn't beat myself up much about not having investigated this particular incident. If you state is like many others, w/c weighs in favor of the worker and a thorough investigation may not change the outcome. Therefore, you next best defense is for your employer to exercise its liberties to their maximum--make every available effort to return the worker to work within his/her medical restrictions and prove the offer with his/her signature on the offer.

    Good luck, and keep the rest of us informed of the outcome.
  • Stilldazed:

    Thanks for the excellent advice and the encouragement. I apologize for the delay in response - we recently had a death in our family and I've been a bit distracted.

    Here's what happened: I am working with the employee's supervisor to make sure there is always (as much as possible) something for this person to do (within the work-restrictions). He is going to PT and a doctor chosen by the company is monitoring his progress. This is a complicated issue for several reasons:

    1. The employee was recently demoted from a management position (before his injury) and it appears that his new supervisor is reluctant to actually "supervise" him, since they used to be colleagues. This translates into difficulty making sure the employee has tasks to do, because the supervisor is being lackadaisical about assigning things.

    2. The employee was demoted because of poor work habits/performance. He used to work in our laboratory, and now he is working doing manual labor on our dock. Among his performance issues was an attendance issue and a habit of playing card games on the computer instead of working. Now that he is on light duty (and since his supervisor is not monitoring him very closely) he has been found back in the lab, playing around on the internet.

    3. We are.. sort of... self-insured. We do have a WC insurance carrier, but because we had a high EMR previously, our President decided we would pay for WC expenses in-house and get our EMR down. This is ok for minor injuries, but I have tried to explain to him that for more complicated instances, it would be better to have our Carrier handle the situation. Unfortunately, he still wants to do everything "in-house."

    For the most part, I work for a fantastic company. Unfortunately, the HR function was very neglected before I arrived. This is a small (but rapidly growing!) family-owned company, and in the past, there was little consistency when it came to creating and enforcing policies. As you can see from the info above, we have some management issues that can't be fixed over night - but they need to be fixed! If you have any information about establishing an early return to work program or accident investigation policy, I would really appreciate the info.

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