Injury on Duty - Complicated case

[Marilyn]

Good Day,

An employee has been injured on duty, all medical reports from doctors and specialists confirm that he has a left shoulder soft tissue injury.
The issue we are having is that he had a pre-existing condition, where he had injured his shoulder in a quad bike accident, and his got a prosthesis in his shoulder.

No orthopaedic surgeon will manage him due to the fact that it is a pre-existing condition and that he must be referred back to his surgeon who did the initial surgery. The surgeon who did his surgery cannot see to him due to him not accepting IoD.

According to the employee, he is unable to work due to the severity of the pain, and that is makes it difficult for him to drive to work or even be at work.
He holds a key position in the organisation as he is the general manager in a restaraunt.
He has been offered a light duty position in another restaraunt whereby he is overseeing the restaraunt and will not need to do any form of normal work until such time he is able to; he subsequently declined this offer, due to the distance he has to travel and that he cannot drive.

Neither the employee nor any doctors or specialists are able to tell us a way forward with his condition or when he is able to return to work.
At present we are in a limbo, as none of the reports are showing anything seriously wrong with him, and suggests that he continue with pain medication.

He has also not been booked off for a set period of time, every time he has been booked off for a few days, he will return to work on the day he needs to and will work a few hours and go back to a doctor to get booked off for more days thereafter.
It's periodic breaks, and no indication when he will be able to return back for normal duty.
He is receiving 75% of his salary for the three months that he is not at work.

The employee says that he needs his job, however, when we offer him a light duty position, he declines.
When he comes to work, he is unhappy and miserable, and makes the jobs of those who work under him difficult.

The impression he is giving off is that he says he wants to work, but does not want to.
Prior to his injury on duty, he has not been performing well, and has been disciplined on this. He is on a four month probation.

What would be a way forward for this employee?

Thanking you advance.

[HR Solutions]

It sounds like he does not want to work and is trying/hoping for some payout from somewhere. It sounds like it is not going to get any better. He has only been working for you less than 4 months - ask yourself if you really want to keep him with all this baggage, especially if it come from a prior accident.

No orthopaedic surgeon will manage him due to the fact that it is a pre-existing condition and that he must be referred back to his surgeon who did the initial surgery.

Sorry I do not believe this .....

[Dave A]

I was thinking "start proceedings towards dismissal for incapacity" until I got to this -

He is on a four month probation.

How much longer to go?

[Richard S]

And did he disclose the true state of his injury/health before he was offered the position? Seems to be a few reasons to send him on his not so merry way, I doubt that he will ever be an asset to your business.

[Marilyn]

The employee has presented us with letters from the Orthopaedics confirming that they will not assist him.
It would seem like they don't want to take on someone else's problem.
And my argument to the employee was that if it is as serious as he states it is, he would have been admitted and been operated on already.

[Marilyn]

His probationary period ended in November, the incident occurred at the end of October, during November he has been in and out of work.

[Marilyn]

Unfortunately, he did disclose this information to the directors in a general conversation, but they did not think anything of it as he was able bodied and seemed fine.

[HR Solutions]

The employee has presented us with letters from the Orthopaedics confirming that they will not assist him.

I recently had a hip replacement and two of the guys that were in hospital with me, also had theres redone by Dr Schepers. They were both mess ups from another doctor and he was sorting it out for them. He is a highly regarded professor at the Donald Gordon Hospital in Gauteng. Maybe he should try him - fly up - have the op and fly back a few days later. But I'm afraid there is more to the story that doctors will not operate.

[Marilyn]

He has also mentioned that he did try and sue his previous specialist, and if I remember correctly, he did say that he disclosed this to the orthopaedics that he has consulted with.
He has requested to meet with us today to discuss his progress and bring us up to date.

We are trying our best to accommodate him, but he is refusing to be at work due to his pain, so I think we are at a dead end here, as no doctor is saying that he is unfit for work.

[HR Solutions]

So his previous specialist he wants to sue and other doctors won't help him - and he is in pain ! (or he says) - and he won't work !!
So really what does he think he is going to do. I would cut him loose.

It sounds like his sick leave has run out so I do hope that you are not paying him ?

[Richard S]

Your company seems to be ethical and empathetic and has gone out of its way to accommodate this employee. That's great, but .....
His performance was unsatisfactory even before he was injured. How did his references check out when he applied for the position?
From the little gleamed from what you write, and obviously not knowing all the facts, my gut feel is that far from being an asset he is a liability, and the longer he stays the bigger a problem he will become. It really seems he needs a salary, but a job, not so much.
Consult an experienced labour lawyer, give him all the facts and follow his advice. He will have dealt with many similar cases before.
Record and note dates, times and details of every meeting and discussion with the employee, I suspect that if you don't do this one by the book he will end up suing you.

[HR Solutions]

I fully agree with Richard. I do hope you checked him out at the beginning - references, ITC, Crim, Work history, Qualification etc etc