Workers' Comp

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I hired someone recently to basically muck stalls. I trained that person on how to do the job, and also on what to be aware of around horses, such as how to walk around a horse so that you can’t be kicked. This employee does not handle the horses.

Well, he got kicked and is claiming injury and, therefore, is collecting workers’ comp. He is also now afraid of horses. I can train someone to work around horses, but I can’t train them to like it. He keeps asking if I’m going to fire him. I know I can’t, but I really have nothing else for him to do. What are my recourses? Was my training not sufficient in the eyes of the law? How much training is needed? And, if he can’t do the job I hired him for, why do I have to keep him on?

This question deals predominately with what happens after someone is injured. At this point, the employer has either agreed that an injury occurred that is covered by workers’ compensation, or a hearing was held by the Labor Board (called a variety of different things in different states) where the employer was found liable. The Labor Board’s sole criterion for determination is whether the injury occurred within the scope of the employee’s employment.

Notice I didn’t say anything about liability. Workers’ compensation is a no-fault insurance. It doesn’t matter whether the employer was negligent, or the employee was negligent, or other employees were negligent or no one; as long as the injury occurred within the scope of the employee’s job, workers’ compensation pays.

In this case, it appears that the employer did everything right. However, she (actually her insurance carrier) is still required to pay. Payment includes medical expenses and lost wages. The advantage to doing everything right? It means that your insurance premiums should be lower.

So now that you have an injured worker, what does workers’ compensation cover? First, all medical expenses, no matter how small or large. The goal of workers’ compensation is to return workers to their jobs healthy and able to continue their employment. Unfortunately, that goal is not always met, as is clear from this question. Worst-case scenario is that the worker is permanently disabled from working. States have tables for determining the obvious permanent disabilities, such as losing a limb or an eye.

In other cases, the grounds for the permanent disability isn’t easily determined, and one or more hearings will be held, where medical evidence will be submitted. These cases can go on for a considerable length of time before a determination is made. But at some point, if the employee is determined to be permanently disabled, the employee will be given a lump sum settlement and ‘retired’ from the workforce. At that point, the worker will go on SSD (presuming he or she meets the eligibility requirements) until they reach retirement age.

Other workers are able to return to work, but on a limited duty basis. Their doctor will provide documentation as to what the employee can and can’t do. For example, a doctor might dictate the amount of weight an employee can lift. In situations like this, the employer is required to try to come up with a job within the medical limitations. Often called “light duty,” this type of work can continue indefinitely, but it is usually for a finite period. What is expected is that the employee will completely heal during the light duty work period.

If the worker has a doctor’s order that limits his ability to work around horses for psychological reasons, this would qualify as a requirement to provide light duty work. The question for the employer is whether the job can be structured around this medical need.

For example, can the horses be removed from the stall while the worker is doing something else? Or can the worker do duties like sweeping aisles or raking the parking lot? If the employer can find any way to allow the worker to do some level of work, then the employer is obligated to provide the work.

If there is no way that the employer can find light duty work, then the worker is able to continue to collect his full workers’ compensation without working.

If the worker does not have a letter from his doctor limiting his duties, then the presumption under workers’ compensation is that the worker will be performing his full duties. If the worker is refusing to perform the job, then you need to contact your insurance carrier. Normally the carrier will tell you to document the problems, and then take steps to terminate the employee in accordance with your normal procedures and state law.

Questions involving workers’ compensation can be answered by your insurance carrier, as well as your state’s Labor Board. In many states, there will be seminars provided by the state at little or no cost for beginning businesses to address these issues.