Injured worker is uncooperative: Does he still get comp?
September 26, 2011 by Fred HosierPosted in: In this week's e-newsletter, Injuries, Latest News & Views, Special Report, What do you think?, Workers' comp, new court decision
Should a company’s workers’ comp insurer continue to pay an injured worker who skips medical appointments, doesn’t communicate with doctors and leaves vulgar voice mails for a case worker?
Chad Hofferber was injured at work and suffered foot, left-side, abdominal, urological, and “severe and profound emotional” injuries.
Hofferber underwent surgery, but he continued to have severe pain.
He started missing medical appointments and told his former employer’s insurance company, EMC, that the reason was an ongoing infection.
EMC requested a signed medical release so it could substantiate his reasons for not keeping the appointments. In the course of trying to settle this issue, Hofferber left vulgar voice mail messages for various EMC employees, including a case worker.
Eventually, the insurance company obtained a court order telling Hofferber to keep his medical appointments and to refrain from any abusive communication with EMC employees.
Hofferber’s case manager e-mailed him offering to assist in coordinating his care. Hofferber sent two replies, the first saying, “stop e-mailing me,” the second one vulgar.
EMC went back to court, seeking to end workers’ comp payments to Hofferber because he violated the court’s order. The court agreed, and his payments were terminated.
A year passed, and another court appointed a guardian and conservator for Hofferber, finding he lacked “sufficient understanding or capacity to make or communicate responsible decisions concerning himself, including those decisions concerning his own health, safety and financial needs.”
The guardian went back to court to try to get Hofferber’s workers’ comp coverage reinstated. EMC pointed to the previous court order, saying that was a final decision.
This case went all the way to the Supreme Court of Nebraska.
The state’s highest court found that the Workers’ Compensation Court has the authority to punish someone for disobeying its orders. However, that punishment is limited to fines or imprisonment, and doesn’t include dismissal of workers’ comp benefits.
Result: The state supreme court sent the case back to a lower court for it to hold hearings to reinstate Hofferber’s workers’ comp coverage.
In a nutshell, in Nebraska, the Workers’ Compensation Court can’t terminate an injured worker’s coverage because the worker has been uncooperative. An insurance company would have to go to state district court instead to end workers’ comp benefits because the injured person wasn’t cooperating.
(Hofferber v. Hastings Utilities and EMC Insurance, Supreme Court of NE, No. S-10-894, 8/9/2011)
Do you think it should be easier for an insurance company to end workers’ comp payments when an injured worker is uncooperative? Let us know what you think about that, and this case in general, in the comments below.
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Tags: doesn't communicate, end workers' comp payments, severe pain, skips medical appointments, uncooperative worker, vulgar voice mail
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September 27th, 2011 at 7:33 am
I think his benefits should’ve been given to the cable guy that got beat up while trying to do his job disconnecting delinquent customers.
September 27th, 2011 at 8:10 am
This is just crazy - no employer should have to take that abuse and yet continue to pay the employee benefits. When are the courts going to give the employer some power to control WC costs for employees who abuse the system. I currently have 23 open claims and maybe 5 are legitimate; with no control over the laws employers are losing millions to employees who know how to play the system.
September 27th, 2011 at 8:14 am
It doesn’t supprise me that he was so uncooperative. Workers comp insurance companies are only out to save a buck for themselves. They do not care about the pain and suffering of the employee. I was sent 250 miles for a test (mylogram spinal tap) that could have been done in the city I lived in but since they were paying for it i had to drive 250 miles one way. After the test I was told to stay off my feet for 24 hours since the point where they injected the stuff they use to look at the spine could leak and kill me. I had no money for a hotel room and was forced to drive the 250 miles back home in considerable pain. This was done in my opinion to get me to refuse to drive so they could deny benifits. I was also made to drive several times to doctors appointments that were scheduled up to 100 plus miles from my home. When asked if i could see a local doctor instead I was told that they could send me where ever they wanted. If Kansas had the same law i would have been less cooperative also.
September 27th, 2011 at 9:25 am
I dislike going to the DMV, but that doesn’t justify my desire to walk in there and act like an a$$. The guy specifically asked that the case worker “stop e-mailing” him when trying to coordinate his care and did nothing to help himself in this situation.
Sounds like there is some underlying mental issues but given the details above, I would deny his WC.
September 27th, 2011 at 10:18 am
The key here should have been the degree of “emotional” damage. If the injured worker needs a conservator and guardian, then he should not be held responsible for his actions. A worker in possession of his mental faculties, however, should be terminated for refusing to comply with reasonable orders from the insurance carrier.
September 27th, 2011 at 10:29 am
I don’t like the employee’s behavior, however, where there are “severe and profound emotional” injuries, courts have pretty consistently held that their behavior is to some extent a result of their injury and further substantiation of their case for continued compensation. Think various sexual harassment scenarios. This concept can be and is frequently abused. Where the injury actually is as it appears to be, taking care of the injured employee is the corporate responsibility and why we carry WC insurance. Unfortunately, there are unscrupulous folks on both sides of the table who give honest employees with legitimate claims and insurance companies in general a bad name.
September 27th, 2011 at 11:08 am
I think this is great! Ridiculous stuff like this sends more employers to Texas where we don’t have mandatory WC. We have an alternative called Non-Subscription - where the employer can avoid outrageous stuff like this case.
Keep up the “good” work! We just love new businesses in Texas.
Stay where you are and go out of business or come to Texas and succeed without the headaches.
Come on Down!
September 27th, 2011 at 11:27 am
Wow paduke!! Do you live in a rural area? Why would anyone be sent so far for treatment? I’m glad we don’t live in your state. None of our WC claiments need to go farther than the closest hospital…..
September 27th, 2011 at 12:12 pm
On one side of the coin, it seems that mental condition is a viable route to exonerate crime and hey, why not to condone irresponsible behavior.
On the other side, there is the system (goose bumps) -always trying to keep the money -even from the handicap and the poor cable guy who didn’t get a penny.
September 27th, 2011 at 12:38 pm
Paduke: I bet if you forced the WC insurer to pay for a hotel, they would have done that. They also should have provided you with transportation. The problem is that sometimes an injured worker doesn’t realize he can actually request these things. If he doesn’t, then it’s cost savings for the company.
I had an employee that was injured and he refused to talk to the claims adjuster or make it to his doctor’s appointments and when I asked him about it, he threw the “F” Bomb at me many times. I told him that I wasn’t going to take any abuse from him and that his claim was going to be closed. If he tried to re-open it, the insurance company would deny it. So There…..Big Baby…..
September 27th, 2011 at 1:30 pm
Paduke, I don’t know what state you live in but in IL, as the injured employee you can request a second Dr. which could be closer to you. That’s terrible they had you drive so far and with so much pain.
September 27th, 2011 at 2:05 pm
i do think the man’s emotional/mental state should be considered before everyone decides to throw him under the bus. I mean, it’s like hiring a person with turrettes and then writing him up for outbursts in the office….
September 27th, 2011 at 5:05 pm
If this type behavior was present before the injuries I’m sure the employee would not have been an employee so it leads one to believe the “severe and profound emotional” injury is the root cause for his current behavior, but to have a case like this go to the state supreme court seems out of control.
September 28th, 2011 at 8:44 am
Well if the employee is under that much emotional/mental state he should be able to receive WC but also be forced to stay in a mental ward. Obviously he he cannot make a simple decision on his own to go get treatment he certainly can’t take care of himself or make the decision on how to spend any of the WC monies awarded to him. Let the mental ward get it for taking care of him. But if he is able to make decisions on his own and is awarded the WC, then fine him and put him in jail for acting the way he did just like the article states can be done. Let the prison get the awarded WC monies to take care of him. Also, give a little of it to the cable guy that was beaten on the job.
September 30th, 2011 at 2:10 pm
Cases like this takes the focus from workplace safety and on to what is the best response for litigation purposes. The only ones the benefit from things like this are attorneys and insurance companies.
October 4th, 2011 at 9:23 am
To awnser some of the questions. I lived at the time north of Hays Kansas and worked in the oilfield as a floorhand on a oil well pulling unit. We did request a hotel room but the appointment was scheduled by the WC carrier one week in advance. We did not hear back from the WC carrier until after the scheduled appointment. I also requested to see a doctor closer and was told they could send me anywhere they wanted as they were paying for the appointment. I did get milage but it was after the fact. As you know you are only paid 60% of your wages while on comp. All of which had to go for necessities (rent, groceries, lights, gas, car payment). I also had a family to take care of at the same time. I tried refusing an appoint ment and was denied benifets. Thankfully I already had an attorney who got me reinstated. I for one think the WC carriers have way too much power. Remember WC was set up to keep the employee from bringing legale suits against employeers. So our hands are now tied and we are forced to bend to their will.
October 4th, 2011 at 10:20 am
Yes Paduke, that may well be but it doesn’t give us the right to be rude to everyone trying to help.
October 10th, 2011 at 5:20 pm
LOL@ JasonF; If the guy’s not mentally stable enough to handle his own case due to his injuries, he should be assigned a case worker to manage it for him. The case worker should be in charge of relaying his medical records to the insurance company. If he still is uncooperative, as it sounds like this guy was, he should be jailed or fined per state law. I think it’s weird that he can be jailed but not denied benefits. If he can cash his check, he can email his medical reports in.