Do we have to take him back?

cebudragonlady · February 2003

Got a form from a WC carrier today, asking for a job description re a former
employee who was injured in May 2001. This employee, of which I wrote about in this Forum twice before, basically disappeared while undergoing treatment, and later obtained the services of an attorney. The WC carrier wants the form completed,detailing how this former employee used his hands ( a carparal tunnel claim )using what tools, for how long, what he carried, etc. I completed the form, which aslso states that the treating doctor wants the info as to determine whether this former employee is physically able to return to work.

This former employee's job is currently being done by other persons. What happens if the doctor says this former employee is able to do the job? I wonder if the WC carrier is trying to cut its losses - especially since WC rates have exploded in here in California, and we dropped this carrier a few days ago, in favor of the State Workman's Compensation Fund.

Chari

Don D · February 2003

Unless your state law is unusually different from most other states, and I realize yours is California, Workers' Comp is not a job protection law (as is FMLA). Typically comp laws neither require you to retain a comp-injured employee or return one to work. But, I think it's a remote chance that the carrier is attempting to get the individual returned to work. They may, however, be fighting a battle with his attorneys over whether or not he remains unable to work at a job. He's trying to get a payoff settlement. The carrier is trying to minimize one.

LindaS · February 2003

I had a similar situation once with an employee that was out due to a work related injury and basically "disappeared" during treatment. About one year later we received notice that she obtained an attorney and was suing us for refusal to rehire. Lucky for me I had ALL the paperwork that she turned in before she "disappeared" as well as notes regarding when I spoke to her during treatment.

Right before the hearing we made an offer to her to settle the claim but she refused. Needless to say we went through with the hearing and WE WON!! The ALJ determined that she failed to follow through with keeping us informed regarding her treatment as well as providing us with false information regarding her ability to return to work before she "disappeared".

So to answer your question I would say that NO you do not have to rehire that person regardless of what the physician says at this point. The employee "dropped the ball" regarding his responsibility to notify you.

Hope this helps!

Eliant · February 2003

I'm in California, I say to you NO!!! you do not have to take him back. However, I will suggest that even though you no longer use that carrier you should continue to monitor the claim. As for the Job description, I agree with Don, the carrier is just following procedure (wether or not an employee retains legal representation) Physicians want to know what were the main/key responsibilities of the employee before the alledged injury so they can determine the level of disability if any. I know your pain. Good Luck

sandra_d · February 2003

You may want to evaluate if lost wages will be charged to his claim if you refuse to take him back...don't know whether that would change your mind or not, but if so, that could continue to increase the losses that go to your experience rating for the next several years. If he's not your employee, you basically lose any ability to control when he returns to work, etc.

Do we have to take him back?

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