W/C claim after termination

lnelson · August 2004

I have an ee who was terminated for performance issues. Documentation is good w/ performance improvement plan not met.

The thing is the ee was seeing a doctor for neck and shoulder pain. (more to the story)
Our Safety Director was told of the doctors appts and inquired if happened at work and if she wanted to go to our doctor. The ee refused to see our doctor stating she was seeing her primary doctor. Our SD figured not work related no action taken. Her doctor did not file first report to carrier. No mention of work incident ever mentioned to anyone at work.

After ee was terminated she filed a w/c claim and a suit stating wrongful term, retaliation. Lawyer is involved.

What is our recourse? Termination was for good cause. We have no problem with a W/C claim but ee never said it happened at work and doctor did not file the report stating work related.

What would y'all do?

Lisa

marc · August 2004

I would start with your company's policy with respect to reporting workplace accidents/injury. Then show that the EE was aware of the policy (in our shop, that is an acknowledgement form signed by the EE). Our state requires a poster that explains workers comp rights in both Spanish and English and it clearly states the EE has a 90 day window to make any WC claims before the incident is considered closed.

Then make sure the safety guy documents the conversation with the EE about the doctor visits. Follow that with copies of the documentation about the termination.

Put that package together and call your attorney and alert your WC carrier. Then sit back and help put out the fires that will arise.

Don D · September 2004

As I understand what you've said, you have no immediate need for anxiety. She was terminated for a work related reason and the termination has well documented support. Now comes a comp charge and I think, a charge of discharge because of a comp injury. Let the comp attorney deal with the issue for the most part. The employee has (I hope) a responsibility and obligation laid out in your policy to report workplace accidents immediately and compete certain forms. It appears to me that she did not follow the policy and I'm sure your lawyer and the comp carrier's attorney will be show that.

WT · September 2004

Just a note for future consideration. We require all injuries at work to be reported on the day of the injury. Our policy also states that sometimes a person may do something and not think it important but experience considerable pain that evening. We permit those injuries to be reported at the start of the next shift but clearly say in our policy that this should be the exception rather than the rule. The policy is strictly enforced and has been worth its weight in gold on several incidents where people were trying to get old or doubtful injuries covered by comp. Reporting time lags are an absolute red flag on Workers Comp fraud.

Don D · September 2004

I don't know NY law and will accept your suggestion that it allows you to have a policy like that. Although our policy requires that injuries be reported, state comp law will rule when it comes to allowing or disallowing a claim to move forward that might not have been filed, according to the employer, timely. An employer's policy cannot trump state law.

marc · September 2004

Our policy says to report accidents immediately, which does not quite have the specificity suggested by WT's policy, but State law gives them 90 days, which prevails. All we can do if the EE does not comply with our "immediate" reporting, is to write them up for not following our guidelines.

W/C claim after termination

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