Workers’ Compensation claims can be very difficult to manage. I want to present an actual case to you, where you can watch how, what on the surface should be a straightforward claim, can quickly morph into an expensive, compliance quagmire. This case was first presented to me by a client who has my HR Helpline service. It’s the case of Gene.
I will outline the case to you and will the give you an opportunity to decide how you would handle it before I show how the case was resolved. OK?
The Facts of the Case:
Gene was an average full time maintenance person at my client’s small manufacturing facility (80 employees). Gene had ongoing performance problems, but his supervisor never addressed them. In the previous weeks they seemed to have gotten worse. Gene had been with the company for 5 years, had been “passed” from department to department, and frankly the owner would love to get rid of him. On Thursday she met with him to discuss her concerns about his performance. Gene was a bit taken back by the discussion, but generally seemed to accept it. On Friday everything seemed fine. On Monday morning Gene called in and said he was going to a doctor about his back. He said he felt a pull on Friday while moving some boxes but thought nothing of it until it started getting sore over the weekend. On Monday afternoon he called back and told the owner that his doctor told him he had a potential herniated disc and he should rest until he could be reevaluated in three weeks. My client believed he was faking it.
What would you do?
Outline all the issues and laws that must be considered as you begin to analyze this case, then read what actually happened below.
Figured out the issues and what you should do?
When addressing employee issues, first deal with what you know.
Workers’ Comp & Fraud: Gene reported that he hurt his back at work and he had a doctor’s opinion confirming it. Though there were no witnesses and the client believed it may be fraudulent, put that aside for now. You have a workers’ compensation claim. The client was advised to first process the first report of injury and to notify the insurer. When she spoke with the claims person, she did inform her of her suspicions
FMLA: Next, we have a Family and Medical Leave (FMLA) claim. Gene has a “serious health condition.” If an injured employee will be losing over three days of work while under medical supervision, this constitutes a qualifying event under FMLA. The company has over 50 employees and Gene has been a full time employee for 5 years. Both the company and Gene fall under the FMLA qualifying rules. The company declared the leave, effective the date of the accident, processed all the required materials and notified Gene. It is recommended to always declare an FMLA leave when an injured employee is out on workers’ comp (see Workers’ Comp & Stacking).
Performance & Termination: Third, we have an employee with a performance problem. While that issue has not gone away, it was addressed before he went out and it is not advisable to do anything more at this point. The client, in her anger, also wanted to terminate him. This was not a good idea. By firing someone who is on comp, the presumption will be that he was fired because of the claim. You will lose total control of the claim, increasing your costs dramatically. Any additional addressing of Gene’s performance was put on hold until he was able to return.
ADA: Fourth, what would we do if Gene could only return to work with permanent restrictions? Or if he could never return? This workers’ comp claim could quickly become an American’s With Disabilities Act (ADA) claim, as Gene would be a “qualified individual with a disability.” To minimize the risk, move quickly to get the injured employee back to work on a medically supervised modified duty job.
This case was complicated and had the potential to be very expensive for my client. It’s a good case to share because it points out why you must consider multiple factors when managing a case. We addressed 1) performance, 2) termination, 3) workers’ comp, 4) workers’ comp fraud, 5) FMLA, and 6) ADA.
Were you able to identify each of these components? Did you find others?
The good news is we were able to get Gene back to work on modified duty and soon after transitioned him to his regular job, with no restrictions. It never became an ADA claim.
Let me know if know if you have any questions about this case or if you need advice on any of your employee issues by clicking Dacri & Associates.
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Other posts you may want to read:
- Control Your Workers’ Compensation Costs
- Maine Law: Governor Signs Three Workers Compensation Related Bills