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Worker's comp denied- NV

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  • Worker's comp denied- NV

    I have an employee in Nevada who has had a back injury from childhood and complains of back problems since we have known her. She cam in a few weeks ago and informed us that she was going to the doctor and her boyfriend advised her to file do it through worker's comp. She left for the doctor and wrote on the C-4 that she had been experiencing pain for 2 months and then made up an incident date which would fall under the 7 day rule. The claim was denied but she has since appealed this. We now received a notice of hearing and she has transferred blame to us that she came to file an incident report but we didn't have forms and told her to go to the doctor where they would have forms. This is completely false and we have received signed statements from all of the other employees stating that she had an injury from childhood, never told us anything about her back hurting and, in fact, told them that she would wait to go to the doctor until something big happened so that Worker's Comp would pay.

    Two questions: Do I need to get any other information together for the Notice of Hearing for the Appeal of her claim?

    Since she has lied about this whole thing, I am now worried that she is going to come in one day and "injure" herself I am thinking of terminating her. Will this affect the worker's comp case negatively and would she have a claim against me?

    Thank you for your help!

  • #2
    You really need to consult with your attorney thats handling this. I would be very careful about terminating her employment right now as it would look like retaliation for filing a claim.
    Somedays you're the windshield and somedays you're the bug.


    • #3
      Well, that should not be an issue for two reasons: 1) Nevada is a right-to-work state and, 2) I have a small number of employees which will not hit the minimum amount to be covered by the federal law regarding retaliation. Any thoughts?


      • #4
        You should be fine going to the hearing particularly with so much evidence that she had an ongoing problem and was waiting to file it as WC. I would definitely get legal cousel involved though. WC hearings are less formal than court but there are still rules about what may be introduced as eveidence. Written statements rarely can be, so you may need to have a few folks from the office attend to testify.

        You may also need to subpeona the records from her doctor that shows the ongoing problem and the lack of any work related complaint. You will need a lawyer to do this and there can be some screwy rules surrounding authorization and such of medical records.

        If she files a blatantly false claim for WC, you absolutely can term, but I'd still run it by your legal counsel first. You may want to wait until you have the medicalrecords or even hearing before acting. There are also legal consequences for filing a false WC claim, but those are best left to legal counsel as well.
        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.


        • #5
          Just saw your second post.

          1. Right to work has nothing to do with it. At will does but firing someone for a WC injury is an exception to at will. Firing someone for a false claim is a whole different story but I would make sure I had more to go on that gut feeling. You don't want to act hastily.

          2. While your size may get you out of hot water for most federal laws, it won't help you with WC laws.
          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.


          • #6
            Thank you so much for the advice. Where do you get the information that Nevada being an at-will state would not apply?? Everything I read from the Labor Commissioner is that employees can be fired for any reason (which would be her inability to perform her duties - she has a number of restrictions from one physician with regard to lifting twisting, etc. and went to another doctor who gave her a full medical release. She needs to lift, twist, stoop, etc. to perform her job.

            Do you have any suggestions with regard to keeping her on until the hearing? Can I restrict her hours, duties, etc based on her "injury"?

            Thanks again for the help!


            • #7
              OK, terming someone because you can not meet their restrictions and they can not perform their job is night and day different from terming them because you suspect they filed a false WC claim. I'm hesitant to give you advice here as really, this is something you need to talk over with a lawyer. Pronto. And your WC carrier. And possibly their lawyer if that is who will be attending the hearing in their stead.

              I will share what I have done in cases that were similar, but please, call your carrier and legal counsel because the devil is in the details and I don't have anywhere near enough to advise you properly on the nuances of this case. If she has work restrictions that can not be met, I'd put her on a LOA. I wouldn't even touch the WC angle. Just look at it as you would for anyone else in her job who came in with a list of restrictions from her doctor. Let her use sick leave or whatever else you would do for any other employee in a similar medical situation. This would buy time until I could get in touch with my carrier and lawyer and prevents the employee from coming back later and saying that they were treated differently because they filed a WC claim.

              All states except Montana are "at will".

              Note the theme here: Call your lawyer.
              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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