We Don't Want Him Back!

Jackie · May 2002

[font size="1" color="#FF0000"]LAST EDITED ON 05-29-02 AT 03:00PM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 05-29-02 AT 03:00 PM (CST)[/font]

We have an employee with multiple major injuries over the past 20 years. He has 2 major WC cases filed with the Industrial Commission. He has been off since last July, receiving TTD. We just got the FCE on the most recent injury that actually shows he is no worse off now than before his injury, when we were accommodating his restrictions from a previous injury. That's good, except he's a walking timebomb. We are considering placing bets on how long after he returns he hurts himself again.

We have long suspected he exaggerates his symptoms to the doctor, and have had some documentation that this is the case. This is probably why the doctor says he has 0% PPD. We have done surveillance and have videotape of his assembling a trampoline in his backyard by himself, including dragging it across the lawn. We have scheduled more surveillance, hoping to catch him in other activities we can then use to our favor in a mediation.

We know he & his lawyer are working on a full Soc. Sec. disability. He has asked about our disability pension benefits (He is 54 years old).

We are grinding our teeth, here, not wanting him back to work and knowing we are still going to pay through the nose!

How would you handle this?

Margaret Morford · May 2002

I think you're heading in the right direction with survellience, but I would use it to talk to the employee about WC fraud, not mediate some sort of settlement. You can fire him for fraud and the employee may be liable for criminal charges as well. Get some good tape fast and then consult with your lawyer about firing him. That tape could also eliminate a disability pension claim. I'd press all charges you can and make an example out of him for what happens when an employee tries to rip off the company.

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

Mike Maslanka · May 2002

First,this is a 20 year employee---if you fire him you may be looking at a nasty worker comp retaliation suit...second,get some legal advice...third,stop talking about him faking his injuries---this type of testimony at a retal trial will hurt you---you are not doctors...fourth,let me tell you a story---client of ours supects that guy was faking----had tons of tape of him playing basketball while off on worker comp leave---guy gets fired---well guess what,he sues and doctor says ,"Oh I told him that it was Ok;it was good for him and his recovery"...the tapes only showed one thing---he was a lousy basketball player...finally,a jury may look at him and his multiple inuries and blame you---yes,you---for an unsafe workplace and not training him properly...so,manage him;right now he is managing you...

Don D · June 2002

Margaret: I'm totally in agreement with surveillance. But, Our Comp/Safety Manager says he hears in all his seminars that courts are determining this to be STALKING. Anyone have knowledge of this?

franfields · May 2002

[font size="1" color="#FF0000"]LAST EDITED ON 05-30-02 AT 08:00AM (CST)[/font][p]Have you notified the workers comp insurance carrier or administrator, if you are self insured, that you suspect workers comp fraud? They may do the investigation for you. I know in Arkansas, the will prosecute for fraud and have. I would think that would take some of the liability others have mentioned off of your shoulders.

Jackie · May 2002

We have been working closely with our WC Carrier and lawyers. They are the ones who recommended using the surveillance to help gain a favorable mediation & retained the investigator.

Down_the_Middle · May 2002

Having some experience with this kind of "questionable" employee, if you can return him to employment consistent with the FCE, then I'd do that. Supervise him closely to ensure that he doesn't exceed his limitations and ensure that he has the adequate training to do his job. It's easier to monitor his activity if he's working for you vs. being away from work and doing as he pleases.

Most comp judges will look favorable on your RTW position and if he alleges another injury again, that generally raises other red flags for judges to focus on. Mike's right about managing the case and i think this is one of the best ways to manage it---------it's not the easiest, but does send a msg to your workforce that you get employees to RTW at the earliest opportunity. It may be that you've let him become a malingerer by hoping he stays away, but you're really shooting yourself in the foot in the long run. Good luck.........

WT · May 2002

The key to all of these cases is that the individual does not want to be at work (or they do not want to be working). Bring the person back but make them work. Sometimes closer supervision is the key. Individuals like this often want to work where supervision is minimal. It is a mistake to put them in a corner somewhere and expect nothing until the next "injury". If they have "retired on the job", and are not performing a function for you, look at eliminating the job. Put them where they can and must perform the duties and sit on management if need be to get a level of supervision to the place where the employee is working. Further, while they are out, there are consulting firms that follow up on medical appointments and back to work issues. They consult with the doctors to show that work is available. Groups like this can cut time away from work. Finally, be cautious. If you have had a problem for 20 years and have not taken firm steps to solve it, no third party will have any sympathy for you. The famous employee who hasn't done an honest day of work in 25 years is hard to get rid of because management knows it and tolerates it.

We Don't Want Him Back!

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