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Speechless Maryland

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  • Speechless Maryland

    I have this employee who has documented attendance issues. He has actually been suspended for such as issue. The middle of September he turned in an accident report to the Safey Director claiming he hyper-extended his elbow. It was a Wednesday. He didnt leave that day for medical attention and finished his work week, meaning Thursday and Friday, completely. Monday & Tuesday morning he calls in and leaves a message saying that he is out due to a w/c injury. I turned these messages over to the Safety Director and he followed up by calling the employee. The employee said that he had an appointment October 2, 2006 with an orthopedic for this injury. He did not have any previous medical opinion mind you before making this appt. Normally our ees our seen in the ER and are told to make an appt. with a specialist. THere are fewer instances where the ee also consults a family or doctor practicing internal meds. He did not do either.

    I also feel it necessary to say that during the course of this convo the ee divulged that he attended a family reunion over the weekend and was playing volleyball. I am sure that this bit of info can be irrelevant considering he first injured it here but I am sure that family friendly game aggravated and more than likely worsened his condition.

    In any event, the Safety Dir. filed the claim with our carrier. So this was Tuesday. The ee was instructed to keep in touch with us. He did not call in the rest of the week. He also was not returning messages left by the w/c carrier rep or the Dir. He came into the office that Friday to pick up his paycheck. The Safety Dir. spoke with him and said to please try and consult a family doc. in the mean time and to also return the rep.'s calls. The ee said that he would like to come back to work. He was instructed that there was little we as the er could do because we didnt have anything saying that he COULD or COULD NOT come back to work. He then picked his paycheck from me and I asked him, at the request of the Dir., to go and see him again. He failed to do so.

    We did not hear from this ee until this morning. He left a message stating that he saw the ortho 10/2 and that the ortho issued a note saying that he was to be on light duty for the next 4 weeks beginning 10/16. If we had no light duty then he was to remain off work. He was also going to need P.T. He said that he had attempted to call the w/c carrier but never had any answer.

    In the mean time I had terminated this ee. Our policy states that if an ee fails to call in 3 days in a row with or w/o a justifiable excuse then the ee is considered a volunatry term. Since I did not have any physician documentation and since this ee had only been here a little over 90 days and had allready rec'd a suspension as a result of his no call no show and other attendance issues I made the decision. I also had to work with the fact that this ee was not returning anyone's phone calls. In this profession you have to you use your own discretion and base your decisions on the facts that you have to work with. That is what I did and although I stand by my decision I am hoping that I did break any labor law that protects an ee who has filed a w/c claim. Did I?????!!!!

  • #2
    First of all, you did the right thing by filing the claim with the carrier. Always let them be one the ones to make the decision whether or not to cover it. If it does make its way to the commission, you can face penalties for not reporting it to the carrier. It is extremely rare for a carrier to face penalties for denying a claim.

    By all means let the carrier know about the volleyball incident. The key to defending fraudulent claims is to document, document, document. Investigate the incident that caused the injury. Ask those in the area at the time if they saw anything. Have them provide a written statement if possible. Remember, statements that they didn't see anything happen are just as valuable as those that did see something. Get statements of those who worked with him in the days after the incident. Did they notice him favoring his arm? Did he make any complaints about his arm? Did he talk about the injury? Talk about playing volleyball? Investigate whether it was even possible for him to have injured himself in the way he did. Turn everything over to the carrier and their legal counsel (keeping a copy for yourself).

    Document when you spoke with this individual and what you said to him. Have others do the same. This is particularly important if he was termed for NC/NS. Unofficially, the Commission very much frowns on employee/claimants who do not hold up their end of the bargain. You won't find it in statute, but those who do not keep their employer's informed and do not comply with the rules do not fair well. The key is having it well documented that the employee knew what was expected and still failed to comply. There is at least one Commissioner notorious for buying the confused claimant argument. That they were so distraught by the injury that they just didn't know what to do and therefore made mistakes.

    Since you fired him for an unrelated reason, it is not illegal. Filing a claim does not mean the employee is protected from being fired. It just means that the employee can not be fired because they filed a claim. Since in 90 days of employment, he had already been suspended for NC/NS, you should be safe. You also should not owe TTD while he is unable to work as those who "voluntarily" remove themselves from the workplace are not entitled to TTD. Being fired when you had prior warning, counts as "voluntary".

    One thing I should mention is that in MD and employee may go to anyprovider they choose for medical treatment. You can not force them to go to the ER or their family doctor. However, unless a doctor places them off work, the time is not covered under TTD. In other words, the employee can not just call around to see which provider has the longest wait for an appointment and stay home on TTD until that time. Yes, I have employees who have tried this but I've found that once they find out they aren't getting paid until they see the doctor, suddenly Dr. Cantseeyouuntilnextmonth, fails to be their provider of choice.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.