Workers Comp Compliance Question...

by Jamie
(Davenport, NE)

I injured my arm and shoulder at work on April 19th, 2011. My boss told me if I needed to see a doctor to let him know. I waited until the second week in May. I told my boss that it was not getting better and the labor intensive work was making it worse.

He put me on lighter duty (I didn't have to shovel and carry the 5 gallon buckets of corn out of elevator basements). I still was doing very hard work like cleaning and dumping trucks.

My employers asked me to take care of it with my regular insurance instead of reporting it to Workman's compensation. They also informed me if I did I would lose everyone's end of the year bonus. My boss said he would have to speak to the doctor because they had to be careful about the “wording.” I had a conference call with a boss who told me to take ibuprofen and ice my arm, he told me I had tennis elbow.

After a few months it was not getting better so I told them I really need to see a doctor. They went with me to the appointment. I told my boss I was not comfortable with him going into the exam room but he said it was mandatory. My boss spoke with the doctor over the phone before the appointment, I was not present.

While in the exam room my boss hired the doctor to be the company doctor and come to the plant for inspection to see what we do and that he would be our plant doctor. So the doctor really did not ask me anything about what kind of work I did. He told me to bend my arm and took an x-ray (of only my elbow). He said I had tennis elbow and told my boss I was okay to return to work. I asked him if I could have an MRI and he told me no.

I scoop corn, open the backs of rusty dump trucks and sweep up after them all day. It's very labor intensive (and this is the light duty). Even if he is right and I have tennis elbow how am I supposed to heal? I have taken 5 days off total to stretch out the weekends to give it more time to heal. The doctor did not even look at my shoulder. I'm running out of vacation time.

I am a mom of two kids and taking care of them on my own. There are no other jobs in this area. I'm scared now that because I took this risk to see a doctor I'm going to get fired. My boss has told people at work about me going to the doctor's appointment. This is not going to be good. I am super upset that my Boss now knows how much I weigh, what I am allergic too, my medications, my blood pressure, etc. I did not tell him about the Anxiety medication I was on. I would not want that to get around.

What can I do? Thanks for any help you can give.

Visitor Question:
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ANSWER for "Workers Comp Compliance Question...":

Jamie (Davenport, NE):

Workmans Compensation Rules and Regulations are generally the same in every state. In Nebraska, Workmans Compensation rules permit an employer to attend a doctor’s appointment with her employee. But the right stops when the doctor calls the patient into her office, or the nurse brings the patient into the examination room to wait for the doctor.

The employer or “Boss” is also prohibited from knowing the nature of your illness. There is a thin line though when it comes to an employer’s right to know the nature of an employee’s illness and the employee’s limitations to perform certain duties.

In your case under the Nebraska Workmans Compensation Rules, your employer should NEVER have been in the same room as you and the doctor during the examination, or at anytime the doctor discussed your illness or any part of your diagnosis or prognosis.

The facts you present state “My employers asked me to take care of it with my regular insurance instead of reporting it to Workman's Compensation. They also informed me if I did I would lose everyone's end of the year bonus.” That is a little confusing.

We presume your employer said if you DID NOT use your own insurance and relied upon Workmans Compensation insurance the consequences would happen. If so then that statement was entirely inappropriate. Whether your use of the Workmans Compensation insurance adversely affected the other employees’ bonuses is entirely irrelevant.

The additional “conference call” among your boss, doctor, and yourself, if your medical condition was discussed, was not only a violation of the Workmans Compensation Rules, but also a strict violation of the doctor-patient privilege; a violation which could have the doctor censured by the State Medical Board. HIPAA regulations (Health Insurance Portability and Accountability Act) also strictly prohibit a doctor or any member of his staff to divulge any information about your medical condition to anyone without prior permission from you.

From the facts you present it is readily apparent your rights under the Nebraska Workmans Compensation Statutes' Rules and Regulations were seriously violated.

There are some Workmans Compensation matters which may be handled without the assistance of an Attorney. In your case we strongly suggest you seek the advice of a skilled Workmans Compensation Attorney. Most will not charge you for an initial office conference.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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