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Very Important Question RE: Worker's Comp

mclane7220mclane7220 2 Posts
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We have an employee who has been with us for 6 years. He has had a prior shoulder injury from years ago and last year he said he re-aggravated it while on the job (we do New Construction Plumbing). As a result he was on Worker's Comp and out of work for almost 3 months (had surgery, etc). When he returned he was told not to lift anything and was given a "Helper" to do all the work. On 3 separate occasions in the Fall of 2003 he called off work because he hurt his shoulder again but at home; 1st time he was lifting furniture; 2nd time playing sports, and 3rd time shoveling his snow. He just called off for those days and did not request WC. Shortly after, he comes to work, makes the decision to pick up a box and claims it injured his shoulder again and he goes to the doctor who decides he needs surgery again. Now he has been out on Worker's Comp this time for 4 months and wants to return next week. I tried to fight this one because his re-injuries where aggravated from out of work personal activities and all he had to do was say he injured it at work so he could get paid.

We do not have a position for him that can accommodate his constant shoulder injuries and even when he is told not to lift anything he does anyway. What do we do? Is there anything protecting the business from this sort of thing? Can he continue to re-injure himself at home and come to work and have us pay for it? When will this end? We are lost and are not sure of Delaware Laws in this matter. I know we do not have to create a position to suit his working needs, but does this mean he will be considered permanently disable and we pay forever? Can we refuse to bring him back? Any assistance would be greatly appreciated.

Thank you very much, (State of Delaware)
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Comments

  • 5 Comments sorted by Votes Date Added
  • Don DDon D 9,834 Posts
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    Since comp laws are strictly state-specific, I recommend your company speak with a labor lawyer with WC as a specialty. It won't help to hear what the laws are in other states and I fear you won't get many Delaware responses. You need answers now and really do not have time to research and 'become educated' quickly on your state's comp laws. The $500 bucks you spend for legal advice may save your company $90,000. A good investment. Good luck...let us know how it comes out.
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  • mclane7220mclane7220 2 Posts
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    Excellent Advise. You are absolutely correct about $500 being worth it. I'll let you know. Have a Wonderful Day.
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  • BalloonmanBalloonman 972 Posts
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    The next time he calls in and cannot work because he aggravated the injury at home get the details of what he was lifting. If he violated his restrictions write him up. Those restrictions are 24/7 for both work and home. I have done this, it also documents non-compliance.
    As for what to do, when he is release this time by the doctor, see what his restrictions are and if you can accomodate them. If not, meet with him and ask him if he can see what job he can do, with or without accomodation. If he cannot come up with one let him go.
    My $0.02 worth!
    DJ The Balloonman
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  • Don DDon D 9,834 Posts
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    I wouldn't suggest pursuing 'reasonable accommodation' in the case of workers' compensation. That term applies to federal ADA, unless it is specifically worded that way by some state-specific comp regulation. If there's no disability and state law does not address accommodation, I would not go to that extent. What you'll be doing is finding a way to keep this liability employed. Balloonman's other advice is excellent.
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  • E WartE Wart 719 Posts
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    Georgia has a great Second Injury Trust Fund (that helps out with these situations.) If you can prove that there were previous injury to the area he hurts at work before the work injury occurred, the trust fund will "reimburse you some of the W/C costs". This was set up to encourage employers to hire employees who might have been injuried previously. However, with the economy, I don't know how much longer it will last.
    Have you ever gotten a fitness for duty report from a doctor. I would make sure he had position description that included all the physical activity this person does. Then, if you cannot accommodate him and don't have another position you can offer him, you don't have a choice, but to let him go.
    (This is sort of like Balloonman) Also, if he does anything at work that has been listed as "restricted", whether or not he is injuried, he should be written up immediately. Could be released just due to this.
    E Wart
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