not showing up for light duty

szemcumo · July 2003

We have an ee who was hurt on the job (fell down stairs) and has been released from her dr to perform light duty. She hasn't been showing up regularly, has husband call to say she is in pain. She also has not been keeping her therapy appointments and she is not going to get better if she doesn't go to therapy. My question is can we terminate, if so what course should we take. THANKS IN ADVANCE FOR ANY HELP!

Don D · July 2003

Unless your state Comp law precludes the termination of those who have had Comp injuries, you can terminate. If this is the case in your state, I would apply the regular company attendance policy to her situation. She has a job, can't show up for work, has been medically approved for and released to return to the job, will not come to work. That explodes her potential contention that she is ADA covered, and unless your state law specifically says you cannot terminate ongoing comp cases, you can move in that direction. Your policy may also state an employee must personally call and talk to a supervisor. Just my opinion.

ssims · July 2003

If you have a light duty policy for employees on work comp and have work available under that policy, you tell her that you have work available and if she chooses to not come to work, then the time will be counted against her attendance as a personal absence or whatever you system is. As far as the not going to PT appointments, make it clear to her that she is in non-compliance and treatment may be terminated by the carrier if she does not comply with doctor's wishes. We have a policy that only us or the medical department can make, cancel or change PT appointments and if any employee can't make an appointment, he is to call one of us and he better have a good reason. We will go all the way with light duty, if an employee can sit and watch or read safety info, then we provide that, we do everything in our power to not let them miss any time. That way we know what they are doing at least 8 hours of the day.

awilliams · July 2003

I'd like to hear more about your light duty policy. It sounds very interesting. Can you elaborate a little bit?

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

ssims · July 2003

We do not have our own medical department, but we do contract with a physicain to provide on site or on call medical care for all of our employees regardless of the shift. We provide space for an office and he provides nurses to staff it or be on call. We have several locations so he does this for several locations. He will also make himself available to see an employee at our facility if necessary, this way no charges go to the insurance carrier (other than a RX) unless we send to a specialist. By doing this we intervene early if we have a problem reported. Our employees know that they will get written up by not reporting an injury or illness and our supervision knows to not make any medical decisions but to send to the medical department. If the doctor thinks that we need to send the employee on to a specialist or (PT), we have several specialists that we have a good relationship with. We have worked with our carrier to only use the best specialists that are familiar with the work comp system and how we do things. If there are restrictions, we will attempt to find work they can do. If there is no work available, we will put them in a conference room with safety videos to watch or safety material to read. They are paid their normal wages during this time. If they choose to not do this, then the time is counted against their personal attendance. We never go against doctor's orders. All the specialists we use are agreeable to this if possible. One of the nurses attends every appointment with our employees so we know what they are telling the doctor and what the doctor. All bills and notes come to us and we forward to the carrier. Very rarely do we have a lost time incident because of this, even if surgery is involved. We have mostly repetitive injuries with an occasional accident. Most surgeries would be done as an outpatient and the employee would be returned to light duty the next day. Most of our surgeries are scheduled on a Friday if possible and that would give the employee 2 extra days to recuperate. This may sound like it would not be cost effective but it is. Our incident rate is lower, which heps with our OSHA reporting and no or little lost time helps with our MOD at insurance renewal time. We make it clear to any carriers that we will make and approve all treatment, as we have that right in Missouri.
hope this helps.

LindaS · July 2003

I agree with both posts. Apply your regular attendance policy toward her absence, unless you have also approved her for intermittent FMLA for her injury. As far as her PT appts. if you haven't already, notify the insurance carrier of the situation. They can then contact the EE and explain the ramifications of her failing to report for the scheduled appts.

Margaret Morford · July 2003

Linda points out an important issue you shouldn't miss. If the employee is certified for FMLA as well as WC, she may refuse light duty, but still take the time off. However, her WC payments stop because you have work available for her. I also think she would need to be recertified for FMLA because the doctor that filled out the paperwork has released her to return to work. Expect her to find a doctor who will recertify her for FMLA.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

John Vering MO · July 2003

I suggest that you get legal advice. As a general rule, you should make sure that you have complied with FMLA and beware of potential liability for a claim that there was retaliation for filing a workers comp. claim. Also be aware of potential ADA liability and consider asking for a doctor's excuse of the absences. Hope this helps.
John Vering
Mo. co-editor
816-472-3114

Balloonman · July 2003

Lets not make this more complicated then it needs to be. First yes we must determine if FMLA is involved. But when you have someone not going to PT appointments work with the WC carrier to stop ttd payments for non-compliance with the treatment plan. Give them all of that information and push them to handle it.
Second if FMLA is not involved, treat them as you would anyone else. Then as long as you treat others like this and do not treat them more harshly there is no issue. I have done this before, and fired people on WC for not coming in for restricted duty. They also lose the WC ttd benefit as we had work available but for their failure to show up they were terminated. There is no reason to waste good money on a lawyer this is a pretty straight forward employment issue. The only thing is FMLA that may change it.
Of course you must be consistent.
My $0.02 worth.
DJ The Balloonman

not showing up for light duty

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