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New Hampshire Urgent Worker's Comp Question

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  • New Hampshire Urgent Worker's Comp Question

    I am a nurse who was injured at work catching a patient. I continued to work and never missed any time due to the injury. My problem is that my physician treating the injury put me on modified duty with specific restrictions which essentially prevented me from doing the two main parts of my usual job as charge nurse - the medication pass and related patient care.

    My employer, however, kept putting me on the schedule as charge nurse, usually the only nurse scheduled on a particular unit or floor.

    Also, no official notice was given to me that as to what I was or was not supposed to do at work - and although all supervisors and management received copies of the doctor's restrictions, they did not abide by them.

    The first time this happened, I went to the floor to find the nurse from the previous shift raring to go and no one there but me. I did what I had to do to get her out of there (called shift change) but nothing that actually violated the medical restrictions placed my physician. My supervisor walked in on this and and was upset with me for not advocating for or protecting myself and simply refusing to do any charge nurse duties at all.

    So, the next time I was told to do tasks (also charge nurse duties) which I was restricted from doing based on my injuries, I politely declined, and this tiime a different supervisor later used this as one of a number of reasons to terminate me - all related to my worker's compensation injury and based on my following supervisor's orders to perform tasks which violated the medical restrictions, or, that one time, refusing to perform the tasks as one of the supervisors had told me to refuse any scheduling or supervisor orders that ordered me to do things that my doctors had said in writing that I wasn't supposed to do.

    When an employer has a worker's compensation injury, and they follow all the rules as far as reporting the injury, seeing the doctors, providing the worker's compensation medical forms (which contain restrictions and modifications) to the company in a timely fashion - whose responsibility is it to protect the worker?

    I say that the management and supervisory staff, who all received copies of all work modification and restriction orders by my physicians, should NOT have continued to schedule me as charge nurse, and, also should not have continued to order me to perform work which I was restricted from doing.

    Basically, they ORDER me (and I do mean ORDER) to complete medication passes and patient care on several occasions (despite their documented knowledge that they are aware of my restrictions) - then claim I was insubordinate and violating safety policy by endangering my arm injury.

    So what's up? Isn't it unfair to put an injured employee in the lose-lose situation of being ordered to do something in violation of worker's compensation modifications/medical restrictions? Then the worker has to make a bad impression by refusing, or a bad impression by complying and following orders.

    I was just a good worker and dedicated nurse. I was also attempting to form a union due to this situation (which I felt was completely unfair to workers and really allowed management to skirt it's responsibilities) and other issues.

    Any information on whose responsibility it is to make sure a injured worker is not continued to be scheduled for and/or ordered to perform tasks which they are medically restricted from performing (based on an on the job injury)?

  • #2
    Technically the law does not require your employer follow the doctor's recommendations and there are times when doctors come up with some screwy restrictions (like an employee with a sprained wrist being told they can only stand for 15 minutes out of an hour). Not knowing what your injury was and how these duties impacted that injury and what else the charge nurse does and whether it is reasonable to ask someone else to handle just those duties you could not and what the usual policy is for declining the assignment given, etc, etc, etc it is hard to say whether it was appropriate to terminate you for refusing to do as asked. To me it seems extreme, but I'm just looking at it from the outside. Did you explain to the manager who asked why you could not do those duties and what you had been told? Did you follow up with HR or the first manager to find out what the deal was? Did you ask HR or whomever manages WC about light duty?

    It is only illegal to fire an employee because they filed a WC claim. It does not insulate an employee from being terminated for other reasons. Why were you trying to start a union based on the injury?
    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
      Nurse

      Start a journal NOW.....Don't try to find "real" answer's on this board. Search the web for valuable information of discrimination and other related information. Not sure what your state laws are, but in CA, there is the DFEH to file a complaint, they inforce the FEHA. If your feeling anykind of mental distress (terminated) file another WC claim regarding your stress. Get yourself a WC attorney, a good one! Take your anger and investigate about your rights. Stay strong. EllenMD will probably have something negative to say about my response, but I am her to tell others, that justice is available, not easy to access, but available. Some of the answers you get here are not all accurate. Seek the advice of attorneys or your EEOC or the state departments that help to solve the acts of discrimination against the injured. Read some of the responses on this board. Words are put into your mouth, discouragement and untruth is told at this website. Seek professional help...(free consult) from an attorney, whether it be for civil or for WC. Come back here to read ELLENMD's response. You'll see what I mean.

      Comment


      • #4
        Have no clue what ginger's beef is but the fact is that CA is a totally different ballgame than NH in pretty much every way but particularly when it comes to discrimination laws and WC. What holds true in CA just doesn't apply to NH no matter how much you may want it to.

        While you can file a WC claim based on stress, it will be tossed if it is not caused by work, but rather having filed a WC claim. Stress claims are very difficult to get approved anyway, but as the WC process is "in the course of and arising out of" employment, it would not be approved. This much is true even in CA. I'll recind this statement if anyone can post a case that shows otherwise.

        Of course for true legal counsel you should rely on a lawyer, not someone who posts on the internet you have not met and who has not reviewed all the documents pretaining to your case. Nothing here, or on any board, is meant to replace the advice of competent legal counsel. That just isn't the purpose. We can give general advice and answer basic questions.
        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
          Ginger, can you show me any instance where Elle has told a poster not to seek legal counsel but to follow her advice instead?

          Please post links. Show me where she has done anything of the kind.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

          Comment


          • #6
            Me Again

            I had a shoulder injury that was thought to be a rotator cuff tear. It was excruciatingly painful to have my arm anywhere but against my body. Basically, at home, or elsewhere, the pain was so bad that my arm was essentially glued to the side of my body.

            My doctors placed the following restrictions on me: Light Duty, No Patient Care, No transferring (moving a patient from bed to chair, etc), No Repetitive Work above Waist Level (so I wouldn't have to lift my arm to shoulder level or reach way above my head or way below), limited reaching, no lifting or carrying of any object weighing more than five pounds, use of right arm as tolerated - all related to my right shoulder injury, no repetitive motion of the right shoulder.

            My employer than repeatedly scheduled me as charge nurse, where I was the only nurse on an entire floor, and I had to complete a medication pass and patient care - both of which basically violated every restriction in place.

            One night I started to work because I was the only nurse on the floor and someone had to do the work (I had not yet done anything that violated my physician's restrictions, just the stuff necessary to allow the previous nurse to leave and to prepare the unit for our shift), and a supervisor got angry and said that I had to advocate for myself "around here" and refuse to do work that risked my shoulder injury.

            The next night, when I advocated for myself and refused to do work that risked my shoulder injury, a different supervisor called me lazy, non-productive, and stated in writing that I was a "performance problem" because I had "refused to participate in the medication pass".

            I switched shifts (already planned) so that I could use my "down time" orientating to the new shift, but the same supervisor who got mad at me for "refusing duties" that violated my medical restrictions "punished me" by not only not providing me any orientation to the shift, but by specifically telling the nurses who were supposed to be orientating me to do something else and let me do the medication pass and patient care on my own (alone). This is documented in writing by the nurses in question.

            So I did, for three days, follow orders and do my job (out of fear of losing my job) and my shoulder payed the price.

            Then, suddenly, out the blue, I was suspended and then terminated because of allegations made by the new supervisor (the one who first chided me for "refusing to perform the medication pass" due to my injury and medical restrictions) that she had allegedly ordered me not to move a medication cart (in order to protect my shoulder), and that I had done so anyway. She said that by doing so I had been insubordinate and violated safety policies.

            The problem was, neither of my doctors had restricted me from moving the medication cart (basically a cart on four wheels that rolls around) and I had done so with my uninjured arm and using my body weight. It was NOT a fine motor skill.

            This was also ridiculous, because not only had she not told me not to move the medication cart, but moving the medication cart was necessary to complete the medication passes she had ordered me to do. Also, the tasks she ordered me to do were 100 times more dangerous to my shoulder than moving a medication cart from a patient accessible area to a nurses' station at the end of my shift. Also, the medication pass and patient care clearly violated my medical restrictions and could NOT be done with my uninjured arm. I HAD to use my injured (dominant arm).

            Their justification for firing me makes no sense at all. I wasn't about to leave a cart full of medications (including large amounts of narcotics that I was legally responsible for) smack in the middle of a darkened dining room accessible to anybody in the building (patients, visitors, construction workers) where a patient could either run into it and injure themselves or injure themselves with the supplies kept on top of the cart or where a visitor or construction worker or a recent burglar (who had come into the facility and taken computer equipment, money, and other items and was never caught) could simply break into the cart or steal the cart itself for the narcotic drugs inside.

            My employer says it was my responsibility to refuse to perform duties that violated my medical restrictions - even though I was scheduled to and/or ordered to perform said duties.

            I say that it was my employer's responsibility, knowing what those restrictions were (as I hand carried my doctor's notices to the Occupational Health Nurse after each medical appointment, and she then e-mailed a synopsis of my restrictions out to supervisors and others), to just not schedule or order me to perform such duties.

            They put me in a lose lose situation. If I refused to perform duties, I was insubordinate (as one supervisor had told me to do what she told me to do basically no matter what) and a performance problem.

            If I performed duties, I was still insubordinate (as one supervisor had told me not to perform duties which violated my restrictions) and a "safety violator" because by risking my own arm injury I allegedly risked the safety of all other staff and patients in the facility.

            But what if I didn't do my job and none of the patients got their medication or care? Or what if I left the medication cart unattended in an area that presented a hazard? And wasn't ordering me to perform tasks against my doctor's advice a safety violation of their own?

            I also claim that my actions were responsible and reasonable in the situation I was placed in by my employers - I did the best I could under the circumstances I was placed - I was never insubordinate - I was always calm and polite and went through proper channels to address my concerns.

            I was starting a union for other reasons - not because of the injury. My experience with the injury and my subsequent treatment only made me more determined to start a union. We are all legally allowed to (we have a right to) organize with our fellow employees and/or start a union in order to negotiate terms of employment. That law is the National Labor Relations Act.

            Comment


            • #7
              I'm very familiar with the NLRA as I work with 3 bargaining units daily. I was asking as it seems far more likely you were let go because of your organizing efforts than the work injury. I'm not sure what steps you took after your suspension and or termination to explain that you were doing as assigned and using the proper protocol with the med cart.
              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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