Worker's Comp - termination

catherinetnc · February 2006

Long time employee who is a computer operator picked up a box in her office to get it out of her way, immediately felt pain in her arm. Doctor's diagnosed some nerve condition caused by picking up the box (10 pound box). W/C carrier refused to pay because picking up the box was not in her job description. (Believe me, I was stunned that W/C refused). Employee is litigating against the W/C carrier. Now it is not only the nerve condition, but it is now carpal tunnel (kitchen sink tactic). Employee has had a couple of surgeries, the latest one being last month. The doctor informs us she'll be out of work another 12 weeks.

Supervisor wants to terminate based on the fact she has been out of work 26 plus weeks (she is on LTD now). I am thinking that based on the fact there is W/C litigation, we'd be asking for a retaliation lawsuit. I'd like to wait to see what the doctor certifies after the recovery period of surgery, and then decide what to do based on the disability rating.

Employee was never a problem, has kept us informed with Dr's notes, et al. I do think we have cause to terminate based on absences, but I am not sure it is worth the potential litigation - especially given the fact that she already is litigating the W/C issue. The lawyers would just love to add us to their defendant list.

I am thinking about telling the supervisor she can hire someone "permanent" for the position, but that if the old employee comes back and can do the job, the new employee will need to be let go.

Thanks for any comments -

Whatever · February 2006

If you have a company policy you should be following it. If you are treating everyone equally, there is no basis for suit (which still wouldn't stop some lawyer somewhere possibly). The only question is if they have asked for an accomodation to be out 38+ weeks and if so, is this reaonable? It is never a good idea to hire someone with the intention of ultimately firing them (think about using a temp). A decision has to be made (based on past company practices) about what the company wants to do about this ees job.

jrzgrl · February 2006

Following your policy is the way to go. What have you done in the past when WC leaves go on and on? This is why we run FMLA with WC leaves - so that they're not forever on the books and the question of when to terminate isn't different for each person.

Paul in Cannon Beach · February 2006

If following your policy would lead to a termination would you reinstate if the ee successfully challenges the WC carrier's decision?

Irie · February 2006

This would depend on the state you are located in. In the state of Ohio you cannot terminate someone who is out of work due to workers' comp. It is against public policy and could be seen as retaliation. We've had an employee off work for 2 1/2 years and we can't do a thing about it. You may want to run this by your attorney.

jimbomt · February 2006

I find it odd that WC refused to pay the claim. Bet they lose

CindyG · February 2006

I agree that the W/C carrier may lose. While lifting the box wasn't in her formal job duties, it was done in the course of employment. We all have to lift boxes from time to time in the office when we're packing away old files, paperwork, etc.
Our policy is to place an employee on FMLA leave in conjunction with workers comp leave. It gives you the option to terminate them if they don't return to work after 12 weeks. Granted they may collect workers comp benefits...

catherinetnc · February 2006

I agree - as I stated before - the decision to deny baffled me. It was the first time I was unhappy with a W/C denial! Usually, I am ecstatic!

We had an employee once who decided to wash her car in the parking lot (unauthorized). She tripped while she was cleaning the car and hurt her ankle. W/C didn't deny that one. Go figure.
Catherine

Worker's Comp - termination

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