Should you help with employee surveillance?
You are 'walking a fine line'
A risk manager at your company asks you to report what an injured employee on workers' compensation tells you about their physical activities, because this employee is suspected of malingering. What will your answer be?
This is something to think about before you are asked this kind of question, says Chris Kalina, MBA, MS, RN, COHN-S/CM, FAAOHN, director of global occupational health programs and services at Wm. Wrigley Jr. Co. in Chicago. "Be careful. There is a lot of confusion that surrounds the role of occupational health nurses in the surveillance that sometimes occurs in workers' comp cases," Kalina says.
Communication in a workers' compensation case can become a "slippery slope," says Kalina. "We are not policemen. Also, employees believe that what they tell us will be held in confidence."
The term "malingering" likely comes from the military and probably has no strict legal definition, says John W. Robinson IV, JD, a shareholder in the litigation department in the Tampa, FL, office of Fowler White Boggs Banker. However, the idea is that the employee is faking or pretending to be sick or injured, to avoid work or claim leave or some other benefit, Robinson says. However, Kalina says, "maybe the employee is not malingering, but is physically and/or psychologically not ready to return to work for a variety of reasons that are not readily apparent."
Many companies now have written policies or guidelines on the release or communication of medical information without the knowledge of the employee, she notes. "Have a full understanding before questions arise," says Kalina. "Know what you can and cannot communicate to whom and about whom, under the policies and guidelines of the company."
Supporting the employer and the employee
If you think there is an abuse of the system, you have an obligation to bring it to the attention of a supervisor in your role as an advocate for the company, Kalina says. At the same time, however, you must be careful not to betray the employee's trust in you.
"How will employees be able to trust you if you turn information given by a client to a nurse to a risk management person or claims analyst?" asks Kalina.
Occupational health nurses advocate for the employee and the company, says Kalina, "and we walk a very fine line in that advocacy. You must treat information that either one shares with you as confidential. We must understand what that confidentiality means to us and our practice."
Robinson says that if you conclude there is no physical manifestation of a claimed malady or injury, then "that would seem to be a significant observation, particularly if the employee is undergoing lengthy treatment."
"There is always a concern about malingerers, but this is sometimes tough to prove," he says.
With workers' compensation, the typical pattern is the employee claims to have a disability that prevents work, yet remains active at home, on vacation, or even participating in recreational sports, says Robinson. In this case, an occupational health nurse may get involved if an injury was clearly not work-related and therefore not covered by workers' compensation benefits. The nurse might be asked to confirm that patient is not following therapy or engaging in proscribed behavior.
With the Family and Medical Leave Act (FMLA), there might be a pattern of employees taking months of leave, sometimes paid, while moonlighting at second jobs. In this case, an occupational nurse might get involved if an FMLA-approved patient misses therapy due to vacation or moonlighting, says Robinson. "These sorts of professional observations are not covert surveillance, but do give a better picture of whether a claimant is a malingerer," says Robinson. "The safest course of action is to advise your authorized referring physician or insurance carrier."
Kalina says that although health information in workers' compensation cases is generally not subject to protection under the Health Insurance Portability and Accountability Act (HIPAA), employees should understand this lack of protection before beginning a conversation with you. "Some companies use a release form to ensure that both employee and nurse are fully aware of any confidentiality issues or lack of confidentiality surrounding discussions," says Kalina.
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