One of my employees has been out on a leave of absence due to a work-related injury for almost a year now. My workers’ compensation insurance company’s claims handler recently told me that the employee had a “QME” and that the doctor is reporting that the employee’s condition is “permanent and stationary” and that his physical limitations are so great that he can never return to his previous job. Is it OK if I terminate this employee since he can no longer do his job?
It would be extremely risky for you to terminate the employee at this juncture. Even though your insurance company’s doctor deems the employee’s condition as “permanent and stationary” for purposes of workers’ compensation, you can terminate the employee only if there is no way to reasonably accommodate the limitations that the employee may have.
Qualified Medical Evaluation
You need to understand that in the workers’ compensation system, a “QME” (qualified medical evaluation) is a medical examination performed by a doctor chosen by your insurance company.
Just because your insurance company’s doctor says the employee’s condition is “permanent and stationary” doesn’t necessarily mean that the condition is “permanent and stationary” in the eyes of the law.
The employee’s condition (in the workers’ compensation system) is not truly permanent and stationary until either both parties agree to the status, or the judge from the Workers’ Compensation Appeals Board issues a ruling stating that the condition is permanent and stationary.
Retaliation Claim
If you were to terminate the employee based solely upon the opinion of your insurance company’s doctor, you could be leaving yourself open to a claim of retaliation and/or discrimination under Labor Code Section 132(a).
If a workers’ compensation judge were to rule that the employee’s condition was not permanent and stationary at the time of the termination and that his condition improved to a point that he could have performed his previous job, with or without an accommodation, you could be held liable for a fine of up to $10,000, plus back wages for the employee.
In a situation like this, it is always best to consult with your legal counsel before terminating an employee on a protected leave of absence.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
