Termination and Work Comp

tracy74

This is my first time asking a question here and I would greatly appreciate any help you guys can give me. A few weeks ago one of our employee's slipped and fell managing to cut his hand in the process. The employee was concerned so we sent him to the ER for evaluation. The cut turned out to be nothing major and the employee was sent home with a Tetanus shot and some antibiotics. After a long weekend off (Memorial weekend), the employee returned to work and worked for a week straight with no complaints. The following Monday he called in to work claiming he had to move that day and would not be able to work. The employee had called in many times and had been counceled repeatedly about his absenteeism and so the decision was made to terminate him. Upon informing him of his termination he immediately became irate and started complaining that his back was hurting and that he was going to file work comp on it. Come to find out he did complain about his back during his trip to the ER but had never told us anything like that. The work comp company is handling and paying the back injury claim but now we have discovered that the employee is planning on sueing us for wrongful termination based on the work comp claim. Help!

Don D

Are the repeated counselings documented in his file? If so, and his final incident calls for termination according to your policy or past practice, I suggest you have no problem. Each state has its own workers compensation laws. In my state, for example, it is not a violation of comp law to terminate an individual who is filing or has filed a comp claim. Nor is there any such thing as work comp retaliation in this state. I'm not sure about your state. If the termination was in line with your policies and documentation is adequate, I would not worry about his threat to sue you. IF (big if) he sees a lawyer and his lawyer subpoenas your records and your records are adequate and support the termination, I don't think you'll see it move forward. By the way, since he has mentioned suing you, I recommend you absolutely not deal with him from this point forward. His lawyer can handle it with your lawyer.

ssims

Don is right on concerning the documentation, Missouri does have a retaliation clause under the WC law but if you have it well documented that you followed policy then you won't have a problem. As for his "alleged back injury", unless he could tell me an incident that caused his back to be injured I might have told him "sorry Charlie", if you can't tell me what happened to injure your back, then it's personal. Of course, he could probably come up with something if he's smart, but I would have disciplined him for not reporting the accident at the time it occured. Also, in MO, the employer has the right to choose the treating physician and it sounds like you just turned this over to your work comp carrier. You will find that one of the most important things you can do to control your work comp is to control your employee's treatment. If you want more info, post your e-mail and I will share more.

safety

Concerning the back injury it looks from the post that he did complain to the ER doc during the initial visit and that is probably why the WC carrier is paying for the back claim. As others have stated let the attnys handle this. You could have a good case if you can prove he moved after this incident and never complained to the employer of a back injury. If you think it is heading to court I suggest some surveillance showing he is not hurt, if your WC carrier has the medical records and he violates any restrictions imposed by a health care provider.

marc

We require all accidents/injuries to be immediately reported and have an incident report form for these events. Not reporting would be a cause for write-up and discipline.

If you don't know about an injury, how can you retaliate for it?

SMace

If my WC company paid this claim, first I would rip my broker a new one and second I would find a new WC company.