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  • CTS Missouri

    We have an employee who has filed 9 w/c claims in five years. Three have been for CTS in wrist and elbows. Since his position requires competitive motion, he will be constantly exposed to the reocurring injury. We are a very small company and the cost of these claims is killing us. Besides his 9 claims we've had three other very small medical only claims. He has filed for compensation in each an every one of these claims, and waiting to settle the most recent CTS claim.

    Since we are an at will state, is there anything we can do legally to stop his constant exposure. We are a welding facility, so there isn't any positions within our company that does not require repetitive motion.

    Also, there was never a witness to any of his claims, and he always rejects medical attention, (going to see how it does before seeing the doctor) and therefore our Company mandated post-accident drug test, is also put off for two or three days. When he reports a claim, can I demand he get drug and alcohol tested immediately even though he rejects medical attention?

    This ee has an attorney on retainer, and has a history of filing workers compensation claims. Is there anywhere I can go and request a w/c claim history on prospective employees to help reduce this abuse of the w/c system?

  • #2
    Your carrier and their legal counsel are your friends here. Please please please keep them on the loop with this and while they shouldn't be setting your personnel decisions, you want to make sure that you are not shooting yourself in the foot in the decisions you do make as far as the WC claims go.

    How I'd handle it (and actually have many times) is send the guy for a fit for duty exam with a doctor of your choosing. Send a copy of the job description and if possible, video of the job being performed. Be aware that you are hitting ADA territory here but when dealing with someone who has this many injuries performing the job, you are there whether you want to be or not. CTS or not (which by the way is impossible to get in the elbow but other conditions might occur there) you need to see if he can perform the essential functions of his job with or without an accommodation.

    If he claims an injury, send him for the drug test whether he goes for treatment or not. The injury claim is all you need, and actually under the law, not even that. I don't know how your policy is worded but I doubt it states you can't send someone until they seek medical attention. If it does, it is time to edit your policy.

    How is he getting compensation for the claims if he isn't seeking medical attention? I'd be all over my carrier if they are paying it out based solely on his word. That actually borders on insurance fraud without medicals to back it up. If he has a history of priors, that should absolutely be looked at by the adjuster and in my opinion scrutinized. If these episodes are reaggravations of claims filed with previous employers, your carrier should not be the one paying out the claim or at least should be bringing in SIF or getting any disability rating apportioned. I would also be discussing a full and final settlement of all the claims with a resignation with the carrier's legal counsel. If you are going that route, I'd hold off on sending him for the fit for duty exam, which is why it is essential you coordinate efforts with the adjuster and counsel.
    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.

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    • #3
      CTS in MO

      Thank you for your response!! I have actually taken most of the steps you have suggested. Although, I'm unlcear as to what you mean when you say "I would also be discussing a full and final settlement of all the claims with a resignation with the carrier's legal counsel." I have copied all CTS claims (others filed under prior w/c insurance carriers) and forwarded to the current legal counsel on his most recent claim. I feel that we finally have an attorney who is interested in attacking this head on, rather than just shove money at this guy to keep him quiet for a while. One thing that I was told by our current claim rep, is that should this ee be sent out for CTS surgery, and once he is released without restrictions, if we don't have an available position, we do not have to take him back. The position he works in is critical in our operation, and we would be unable to keep his job open for 8 - 12 weeks. This just makes me uneasy, as I've never heard this before, and I really want to trust what they tell me. Do you have any knowledge of this?

      We've also discussed the video taping of him performing his job. Also in regards to the ADA status, I do not see any accommodations that we could make that would allow him to return to his current job without his continued exposure to CT injury.

      When I said he was refusing medical treatment, I just meant, that he ALWAYS refuses it for 3-5 days, and then he 'hurts so bad' that he "has to go now." He drags his feet, and then all of a sudden is in dire pain. Can I make him go for medical attention upon reporting an injury or illness? I am going to change our post-accident drug testing policy to say that "all post-accident drug tests must be performed within 8 hours of reporting any injury." Maybe I've been drug testing too long, but I'm suspicious of people that I feel is trying to beat or manipulate the system.

      I do not question the CTS claim, I beleive he has it and it's work related, but what I don't understand is how we have to allow him to continue to work in the profession that causes injury to him time and time again. There is no fixing CTS, being a repepitive motion injury, it will happen again and again. I know, becasue I also have it. It's also returned even after I've had the surgery. Did I file a w/c claim? HA! HR doesn't do that.

      Again, thank you so much for your time. I truly appreciate it.

      Comment


      • #4
        If he reports an injury, I would insist that he go for medical treatment immediately to get it checked out. Do you have an occupational health clinic you can refer him to? I would also be sure he completes the report of what happened immediately.

        A full and final settlement is one that essentially closes the claim to future medical treatment and lost time. It is also common for these to contain a resignation clause. Talk to the lawyer about this option.

        If this genetleman qualifies under FMLA, you must protect his job for at least 12 weeks. Now if the previous time he has taken was also deemed FMLA, then that comes off his 12 weeks. Remember it is 12 weeks per year not incident.

        As for ADA, I would not assume nothing will help. It may be that he can use arm braces, or take frequent breaks or something else. It may be that there isn't anything reasonable but I'd still go through the process before declaring it impossible.
        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

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