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Taking Back A WC Employee California

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  • Taking Back A WC Employee California

    Located in California

    We have an employee on Workers Comp since July 06 for a minor shoulder muscle injury, that the company has expressed a concern for the validity of it, that has now turned into a rotator cuff tear. I have been informed by the employee that he will have to have surgery and "several months" rehabilitation. We had to hire a replacement since there seems to be no projected date of return. The replacement is a better technician that the employee and we would rather keep him. There is not enough work to keep both the WC employee and the replacement.

    I am not sure how to phrase the question so that it will not sound callous but if the employee wants to return to work in 6 months, do we have to take him back? In 12 months? I quess the question is "Is there a time or circumstance when an employee on WC looses the right to their job back?"

  • #2
    You have an employee who has been out 5 months for a minor shoulder injury?? And one which you doubt the validity of? Whomever is managing your claims has dropped the ball big time here, but that is another matter.

    There is no set period of time that you must hold the person's job. Once FMLA has expired, assuming it applied, so does the person's "right" to reinstatement. That said, CA is more restrictive than most on terminating someone with a claim. I would run it by legal counsel before acting.
    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.

    Comment


    • #3
      Thank you ElleMD.

      What are the potential ramifications of not taking the employee back? I understand that there is always the potential for a lawsuit.

      Yes, the employee has been out 5 months on a minor shoulder injury that seems to be getting worse with time. This employee is in healthcare and knows all of the right things to say or claim. We have expressed our concern of the validity of the injury, in writing, to the adjuster and have been ignored.

      Comment


      • #4
        Well, there is the potential for a wrongful discharge claim under WC. My advice, which isn't worth much and should definitely be run by counsel before acting on, would be to keep this person on your payroll as long as possible. Not necessarily pay them, but keep them as an employee while this claim is still open. Problem claimants do not get better once terminated and you lose control over such things as bringing them back light duty.

        Why is this person still out? I would be finding something for them to do even if it is answering phones or filing or something. Light duty is a great way to keep claims under control and it has been shown that those who stay out tend to fare worse than those who return even light duty. OK, PSA over.


        Now, your adjuster needs to understand that you employ them, not the other way around. If this adjuster won't look into it, talk to their supervisor. If you have access to their legal counsel, contact them and let them know what is going on here. Start managing this now before it starts getting more out of control. I'm lucky in that I have a great relationship with my adjustors and their legal counsel. It does not have to be an adversarial relationship. Do we always agree? Heck no. But I don't accept blindly how the claims are handled.
        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.

        Comment


        • #5
          There are times when as an employee, things are dictated to you and you must abide by them regardless of whether you agree or not. For me, this is one of those times. I have stated my case for light duty to the owner of the company many times and he will not have the employee back in the building again.

          Non-the-less.....We did take the employee back on light duty and within 3 days he claimed that he further injured his "already injured shoulder." There were no witnesses available to verify or dispute the re-injury as there were also no witnesses to the initial injury.

          The employee remains on the payroll but is on WC. I have managed to accomplish that much.

          Thank you.

          Comment


          • #6
            DO NOT TERMINATE THE EMPLOYEE BEFORE THEY CAN RETURN.

            There is case law directly on this issue in California. You must wait until they are found to be "permanent and stationary" before you lay them off. They aren't hurting anything by being on the payroll without getting paid. Leave it for now.
            Megan E. Ross, Esq.
            Law Offices of Michael Tracy
            http://www.gotovertime.com

            Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

            Comment


            • #7
              There is considerably more to this than was posted.

              I did not mean to imply that we were going to terminate immediately. My stand is to bring the employee back on light duty, at corporate where we can watch him, and get him to full duty. We did bring the employee back on light duty once before and he "re-injured" himself in a questionable situation and he also spent time instructing other employees on how to claim and get WC. The owner is furious about that. The owner is adament that the employee will not set foot on the premisies until he is returned to full duty regardless of the hit he will take on WC premiums. That is his choice and I am honor bound to state my case and then follow his directions.

              My original question was because I was told that an employee on WC is entitled to their job back and are virtually un-fireable from then on because they can always claim that they were fired because of the WC. DoL would not give me an answer saying only that the employee should get his job back in all fairness. Whether we take the employee back or not is dependent of the replacement staying.

              Comment


              • #8
                Injured workers are "virtually un-fireable" as you put it, in California until they are permanent and stationary. At that point, you may have a case that there is no position for him, and you might not, but if not, I recommend getting counsel involved and having him settle any potential claims with a severance agreement.
                Megan E. Ross, Esq.
                Law Offices of Michael Tracy
                http://www.gotovertime.com

                Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

                Comment


                • #9
                  Check your PM, I'll comment there.

                  Megan- Do you have the case cite. Once upon a time I had it but now can't find it.
                  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.

                  Comment


                  • #10
                    Barns v. WCAB 216 Cal App3d 524
                    Megan E. Ross, Esq.
                    Law Offices of Michael Tracy
                    http://www.gotovertime.com

                    Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

                    Comment

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