Acme employee's injury claim leads to tricky circumstances

In this edition of In the Trenches, Acme fires an employee for not following injury-claim procedures.

Sal Salido was a material handler in Acme’s foundry. Although forklift trucks were the norm, some areas of the plant required the good old-fashioned lift-and-tote manual labor in areas where forklifts couldn’t negotiate. It was in one of these places at the end of a Friday shift that Sal sprained his right arm, maybe suffering a torn shoulder muscle. Nevertheless, Sal struggled through a Saturday shift, but making sure to take the easier tasks that needed to be done.

Sal came to work on Monday morning, describing his injury in detail to anyone who would listen. At the middle of the Monday shift, claiming that the pain was too intense, Sal reported the injury to Ben Yeahdoh, the material handling supervisor. Ben sent Sal to the company nurse, who told Sal not to use his right arm until after Acme can get a full evaluation from a doctor at the local clinic. The nurse then arranged for an assistant to escort Sal to and from the clinic.

Ben also went through channels to get Sal’s injury reported to the third-party administrator that handled Acme’s injury and workers’ compensation matters. But Ben didn’t fully believe Sal’s story.

Ben noted that Sal waited several days before reporting the injury and that Sal worked at least part of the Saturday shift. Ben thought it odd that he saw Sal using a cell phone without apparent discomfort, despite the device being held in the right hand.

Other plant-floor supervisors heard about the situation and recommended that Ben enlist other supervisors to keep an eye on Sal to determine the extent to which the arm injury was legitimate. The next day, one supervisor sent Ben two videos that showed Sal driving a car in the parking lot, even though the doctor had forbidden driving until the arm had healed. Another supervisor reported that Sal regularly used the “injured” arm without apparent discomfort and provided grainy cell-phone photos of Sal’s arm use to bolster the assertion.

The supervisory team spying on Sal is a pure waste of time, in my opinion. They should have better things to do.

Acme’s collective bargaining agreement required a post-injury debriefing to allow the company to learn how to prevent someone else from getting injured in the same manner. Sal insisted that his arm was still too painful and managed to find excuses to avoid having to participate. When Acme finally held the post-injury meeting, Sal was uncooperative, giving a repeated response: “I don’t recall.” The HR manager asked Sal if “I don’t recall” is his final word on the matter, and Sal replied, “I don’t recall.”

In accordance with the bargaining agreement, Dan de Lyon, the HR manager, directed Sal to provide Acme with a written narrative of the details surrounding the injury. Sal refused initially, arguing that his oral statements at the debriefing were sufficient. But two days later, Sal submitted a two-page diatribe criticizing Acme for its harassment of injured workers and the severe emotional stress it inflicts on them. Dan told Sal that this document didn’t meet the requirements and demanded that Sal submit a proper narrative before the end of the shift. When that didn’t happen, Ben fired Sal, citing what he considered to be Sal’s obvious lies at the post-accident meeting and subsequent insubordination.

Sal sued, claiming that Ben’s report to the third-party claims administrator led to this termination as retaliation for the compensation claim that Sal was likely to file in the near future.

An academician says:

Sounds like a good lawyer question, which I am not qualified to answer. But let me try. Companies frequently check up on workers who file disability claims, particularly if there’s no clear-cut evidence for the problem. If Sal had lost an arm, then Acme would have no reason to monitor his behavior to see if he’s using the lost arm. But some injuries are difficult to ascertain whether they are real or fake. So, the company might monitor the injured worker’s behavior. Usually companies hand this job to private investigators that specialize in such cases. That would have been my choice for Sal’s case, and I’d rather have the supervisors focus on other matters. Many union contracts have fairly detailed instructions regarding cases such as this, including procedures for processing the claim. I’m not sure what the process was in Sal’s case, but Acme should have made sure that it followed the process. Acme could have assigned Sal to “light work,” but given Sal’s “pain” and the fact that the injury hadn’t been verified, I wouldn’t see this as an option. It’s interesting to note that the union didn’t intervene in Sal’s case. Acme could have asked for union assistance in explaining to Sal what his responsibilities were. However, given Sal’s lack of cooperation, it appears that termination was the only real option left.

Professor Homer H. Johnson, Ph.D., Loyola University Chicago
(312) 915-6682, hjohnso@luc.edu

An attorney says:

Insubordination provides a legitimate reason to terminate an employee. And courts recognize a claim that an employee was fired because the employer anticipated the worker filing a workers' compensation claim. Beyond that, the outcome of this claim is going to depend upon facts not revealed in the story.

The prime fact is how Acme treated other workers who failed or refused to provide verbal or written accounts of their work-related injuries. If they were consistently terminated without warnings, it will be more difficult for Sal to prove a retaliation claim.

On the other hand, it appears that Acme's motivation in terminating Sal wasn’t so much his refusal to provide verbal or written information about his alleged accident but Acme's suspicion that he didn’t injure himself, which was further supported by Sal's refusal to provide detailed information about the injury. Unfortunately, our system of workers' compensation provides untold avenues for unscrupulous employees to scam the system.

What can an employer do to protect itself? When an employee reports an injury, the supervisor to whom it is reported should require the employee to complete an accident form on which is recorded as many details as possible — the entire journalistic panoply of information — who, what, when, where, why and how the accident occurred. This information should be recorded on a form for this purpose that also includes the names of any witnesses and a detailed description of which body parts were injured. If the form isn’t filled out completely, the supervisor should assist the employee in adding missing information. The employee should then sign and date the form. All of this should occur, apart from an emergency situation, before the employee sees the company nurse or obtains any medical treatment.

All of us have seen work-related injuries in which the employee initially claimed that he injured a wrist, but by the time the state workers' compensation commission adjudicates the claim three years later, the injury now encompasses the ankle on the opposite side of the body, the back and the neck. If an employee identified one body part affected by the injury at the time it occurred, he’s going to have much greater difficulty later arguing that some other part of the body also was involved.

After the employee has completed the accident report form, the employer should report the alleged injury to its workers' compensation carrier or third-party administrator and conduct an investigation into the accident. For example, with respect to Sal's alleged injury, Acme should question workers who were near Sal at the end of the Friday shift and who worked with him that Saturday. Did any of them see anything unusual? How did Sal go about performing his duties? Did Sal complain about pain or act injured in any way? Although much more difficult to do, Acme might also try to determine what activities Sal engaged in over the weekend. On more than one occasion, an employee injured moving a refrigerator at home over the weekend has reported it at work on Monday as a work-related injury.

An employer can further its investigation by asking for current observations of the employee from supervisors, as Acme did in this case. In some instances, employers have even hired professional investigators to observe and photograph or tape an employee's activities outside the work place to determine whether an employee has a legitimate injury. Employers can and should explore these options to ensure that they aren’t paying for fraudulent workers' compensation claims.

Julie Badel, partner, Epstein Becker & Green, P.C.
(312) 499-1418, jbadel@ebglaw.com

A plant engineer says:

This situation could have been avoided if Sal had done the right thing and reported the injury as soon as it happened. I must assume that Acme’s safety protocols require employees to report any injury when it happens. Sal had the remainder of a Friday shift and a whole shift on Saturday to report the injury to his supervisor and failed to do so. This could be cause for a reprimand for Sal for failing to do the right thing. The supervisory team spying on Sal is a pure waste of time, in my opinion. They should have better things to do. The supervisory team should have been watching Sal performing the task assigned and help him to understand that he shouldn’t use his right arm and maybe provide work that wouldn’t require the use of the right arm. For a person to be told by a doctor not to use the right arm and doing so is to break a lifelong habit. It doesn’t happen after being told only one time. Sal or any other employee, union or nonunion, should be fired for not cooperating with reasonable request of the safety board. The whole purpose of the safety board is to find out what happened and try to make sure it doesn’t happen again. To have the input from someone that had an accident is extremely valuable to an investigation. To shuffle someone off to a different department only moves the problem. It solves nothing. Employees whose words aren’t consistent with observed actions should be addressed with their supervisor. That is behavior that isn’t conducive to a workplace that is productive and safe.

Jeffrey L. Strasser, Bacova Guild
(540) 863-2656, strasser.jeff@bacova.com

Reader responses:

If the company does not have a policy to report injuries immediately when they haqppen they should, Sal should have been coached to report injury rather than wait until it so bad he was force to. The company may have been able to work with him.No doubt he had the time he told everyone else. Supervisors have better things to do then to spy on any employee, with that in mind, they certainly could document things seen in the regular course of the day. No matter what follow the procedure set up, in most cases there is a series of things which need to be done, from coaching to unpaid removal from job for 3,5 days to being dismissed. What did the doctor say?

James Killingbeck