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Can I be layed off while receiving STD disability due to on the job injury?

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  • Can I be layed off while receiving STD disability due to on the job injury?

    I am trying to see if I can be layed off while receiving STD disability due to a on the job injury that WC denied. I have a lawyer who is preparing for a hearing and when WC denied my claim I was told by HR that they could not accomadate my restrictions because they were too restricted after seeing my own private doctor. The company layed off 300 people and from what I have heard from fellow co-workers the lay off was based on age, attendance, and any types of discipilinary issues that were in individual files. I know that receiving STD does not give you job protection but, I was injured and have had surgery and intend to return to work 04-09. And I am in the appealing process with WC under my legal representative.

  • #2
    First off you didn't give us the name of your state.

    Yes, you can be laid off while on STD & while appealing a WC decision. You couldn't be laid off though for example just for appealing a worker's comp. claim - that would be illegal discrimination. You can be laid off though if you would have been laid off had you not filed/appealed a WC claim. It seems you were laid off as part of a mass lay off. I see no illegal discrimination.

    Also, employers only have to do an accommodation that is reasonable & not a hardship to the employer.

    It is doubtful your STD will stop due to being laid off. It will continue & end as per the policy provisions. It would be very rare (if at all) that STD would stop at a lay off or termination of employment.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      Betty3

      I am so sorry, I thought I entered my state which is North Carolina. I haven't been told that I'm layed off, I just know I received a call on the day of the layoff and I was in therapy and the gentleman that called me said he would call me back and I haven't heard anything since. And my attorney is preparing for my hearing. But you did say I can't be layed because of an appeal with worker's comp. appeal correct.

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      • #4
        Betty3

        If I return back to work and my lawyer is still waiting for a hearing can I be layed off because it has taken W/C a long, long time to even reply to any of my attorney's phone call's or mailed out documents. And again I am in the state of North Carolina.

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        • #5
          Contrary to popular belief, STD benefits do not create job protection. Neither does having an open workers comp claim.

          While you cannot be fired BECAUSE you filed a workers comp claim, the employer is not required to hold your job open indefinitely or to create a job for you within your restrictions. North Carolina does not have any laws extending FMLA beyond the 12 weeks granted by Federal law. If you have been out of work for 12 weeks or more, OR if you are able to return to work but you have restrictions that your employer is unable to accomodate, then you can legally be terminated regardless of the workers comp claim or the STD benefits. (How is it that you are collecting STD benefits on a workers comp claim - they're usually mutually exclusive). Your employer will still be responsible for any medical bills associated with the claim and possibly for lost wages. Additionally, in some states if your employer eventually should have an opening which is within your restrictions and for which you are qualified, he is required to give you first dibs on it; however, I do not know if NC is one of those states.

          Neither a workers comp claim nor STD benefits protects you from a business related layoff that would have happened regardless of your injury.
          Last edited by cbg; 03-14-2009, 04:45 AM.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Originally posted by china View Post
            But you did say I can't be layed because of an appeal with worker's comp. appeal correct.
            You can't be laid off/terminated just for filing a WC claim/appeal but you can be laid off after filing a WC claim/appeal if you would have been laid off had you not filed the claim/appeal. You can't be discriminated against just for filing the claim/appeal.

            Did you qualify for FMLA?

            Are you on STD because your WC claim was denied (I know it is under appeal)?
            Last edited by Betty3; 03-14-2009, 09:03 AM.
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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            • #7
              Betty3

              Betty3 yes I am receiving STD because, my W/C was denied. I was offically layed of today because the employer said due to the ecomony and the job that I was doing will eventually not be a job for which I can do. They are supposed to eliminate this job, however it hasn't been eliminated yet. They have 4 regular employees one of which has a permanent back restriction that he had prior to his employment with this company but, I got injured and my doctor has released me to return to work in April 2009 but they say they don't have a spot for me. And this department is now being basically used for injured people. They also have another guy that had one hand restrictions and he has been placed in this area. The remaining 5 people are temporary. In early February 2008, I had injured my knee and had worked under restrictions but when another employee refused to do certain tasks because of her restrictions she was sent home and I was too. We both were told to have restrictions removed or sit at home until we were better. Then it was said that no one would be allowed to have restrictions unless it was a job related injury. Please tell me if this is fair or what. I have a position I could return to but, sometime in the future it will be eliminated so why other than what I would say is job discrimination would I have been layed off?

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              • #8
                The law does not care about fair. The law only cares about legal.

                I say again, while you cannot be laid off BECAUSE you have a workers comp claim and you cannot be laid off BECAUSE you have a disability as defined by the ADA (which does not include all or even most conditions for which you would receive STD benefits) neither a workers comp claim nor collecting STD benefits is a guarantee of job protection.

                In the current economy many, many people are having their jobs eliminated (which does NOT mean that no one is performing the duties of the position, but that there are now less people performing them) and having an injury of any kind does not exempt you.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  china, I would have given you the same information as cbg. It may not seem fair but there is nothing illegal being done. I'm sorry it's not what you wanted to hear.
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                  Comment

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