But I am Still in Pain

Steven Cesare, Ph.D.

A landscaper from Washington state called me the other day about a workers’ compensation issue. Several months prior to our telephone call, a Landscape Maintenance Laborer suffered a back injury while working on a job site. Per protocol, the company processed the employee’s claim dutifully. The employee received immediate care at an approved clinic, was placed on leave by the health care professional working in the clinic and was assigned a treatment plan that contained multiple sessions across several weeks. No surgery, just physical therapy.

The employer processed all the necessary paperwork, the employee attended his treatment sessions, and the physician on duty eventually released the employee back to work with no restrictions as certified by the signed Fitness-for-Duty Examination Form. No problem. Just the way the process is supposed to work.

After a couple of weeks had passed, the Landscape Maintenance Laborer began to complain that his back was again giving him difficulty when he performed his work activities. When he broached this issue with his supervisor, the supervisor reviewed the return-to-work statement, saw the comments that the employee had been released to work at full duty with no restrictions, and in turn directed the Landscape Maintenance Laborer to go back to work. The Laborer then said, “But I am still in pain!” The supervisor then responded, “the Doctor said you are fine, so get back to work.”

Upon hearing this news, the landscaper was confronted by the contradiction between the expert opinion of the physician declaring the employee could return to work without reservation, and the employee’s plea for something to be done to address his pain. The landscaper was torn between seemingly doing the right thing for the employee, and potentially being manipulated by a hypochondriac employee trying to “game the system” that could establish a precedent for other employees going forward.

Easy one.

Send the employee back to the clinic for a Fitness-for-Duty Exam. At the risk of being naïve, it is better to be safe rather than sorry. It makes good business sense to absorb the cost of a routine follow-up exam than to risk a legal claim against the company for denying an employee workers’ compensation care. During that exam, it is more than appropriate for the attending physician to gather evidence that the alleged pain in question: (1) could have been the result of a work-related injury, (2) could have occurred as the result of a personal injury on non-work time, or (3) could be related to the original injury suffered previously.

If the landscaper wanted to be extremely cautious, he could have contacted his workers’ compensation vendor for formal advice about how to move forward. I’m reasonably certain the workers’ compensation vendor would have validated my conservative recommendation. Keep in mind, the basic business model of a workers’ compensation vendor is that they make more money when more new claims are filed; that is how their bread is buttered. We all know this.

In sum, use good judgment when an employee complains of pain. The potential risk is often far too great otherwise.

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