New Mexico Governor Susana Martinez signed a bill last week which has the stated intent of returning injured workers to the workplace. But, as we see with almost all workers' comp bills nowadays, it also contains provisions seen by some as being overly friendly to employers and routinely unfair to injured workers. One such provision enables employers to terminate workers' compensation benefits to injured workers fired for misconduct after returning to the job. Senate Bill 155, which passed with large support on both sides of the legislature, also allows the denial of certain benefits if they “decline a reasonable offer to get back to work after recovering from an injury. The measure also would allow judges to fine businesses that wrongly fire employees because of injuries incurred on the job.”
Ah, yes, the carrot, and the stick.
I find this particular reform effort intriguing. Very few legislatures around the country give any credence or concern to the issue of return to work, so I'll give credit to New Mexico pols for even making the attempt.
There are lots of challenges when returning some injured workers to the job. A relative few just don't want to do it. Their motivation may be money, or simply they have adapted to staying home while receiving some compensation for the effort. More of them, however, are convinced they cannot return safely, and their injury and perceived impairment has become a permanent part of their narrative and identity. Returning to work damages the impairment brand that has been built into their mind.
Employers are far from blameless in this as well. In fact, when it comes to return to work, employers are their own worst enemy. Many of them never want an injured worker back, and make no efforts to accommodate them in any way.
Frankly, our failure to return many seriously injured workers to a functional and contributory position in society is one of the persistent failures of the workers' compensation industry.
As far as New Mexico goes, this legislation was prompted by several state court decisions seen there in recent years. In one of those cases, the New Mexico Court of Appeals ruled that “an injured worker could still receive benefits after returning to the job and being fired on allegations of violating a zero-tolerance policy on sexual harassment.” In another case, the New Mexico Corrections Department fired an injured employee who had returned to work, but was later accused of misconduct. The state had to continue paying certain workers' compensation benefits.
There are those who believe that future performance on the job should not have impact on benefits earned in a previous injury. On the medical front, I might agree; ongoing medical needs from an injury should probably not be subject to employment status. Indemnity payments, however, should have some vulnerability to future actions. When an employee who was never injured commits some act worthy of justifiable termination, their income ceases as part of that action. I see no reason why the exact same infraction from an injured worker who returned suddenly justifies continued compensation. It makes no sense, and could likely motivate intentional malfeasance, as the worker essentially gets paid no matter how they behave on the job.
We need to get better as an industry and as a nation at returning people to work. Too many are left languishing in the vapid wasteland of disability, and that is not healthy for them or our society. A bill that encourages the acceptance of available work by threatening to reduce or eliminate benefits, while punishing employers who don't cooperate with returning workers to the job, just might be an effort that produces intended results.
We may be able to lead these horses to water, and by golly make them drink as well.
Until there is a proven track record I suppose, as with virtually all reform efforts, the belief of whether the result is fair or foul is all depending on which side of the law you find yourself standing.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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