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Doctor will NOT release, says may never be able to go back to job North Carolina

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  • Doctor will NOT release, says may never be able to go back to job North Carolina

    My husband was injured (rotator cuff) releasing a brake on a cart at work. He had to have his shoulder operated on and some bone spurs removed from his collar bone. He had the surgery in April and started PT at the end of June. PT finally released him last month but the doctor only released him for medium duty. Work said they couldn't take him back until he was fully released. He went back to the doctor this past week ( a month after the last time he'd seen him) and he STILL won't release my husband. He even told him that he may never be able to go back to driving a truck. (Not an option, my husband loves driving a truck and it's not like he has to load/unload. just drives) Also, his ID badge has expired and his DOT physical expired while he's been out. (He has to have the DOT physical every two years.) We had assumed the dr. would release this last go 'round and he asked the lady at work about the ID badge and DOT physical. She told him there were 200 people ahead of him for the ID badge and she'd be able to schedule the DOT physical after the WC dr. released him. Now my husband is scared that they're just going to fire him once he IS released by the doctor. Can they really fire someone just because they've been out on WC? My husband is NOT suing anyone, just wants to get back to work. (That is unless they warrant suing. He was hurt doing something similar eight months prior to this because they don't replace the floors in the trailers properly and he noted that on his report.)

  • #2
    Littlecc, how long has your husband been off of work? Does he or did he qualify for FMLA? FMLA criteria is 50 or more employees within a 75 mile radius of work location, worked for the employer for at least a year in which he worked a minimum of 1250 hours in the previous 12 months. FMLA protects his job and benefits for 12 weeks when the doctor certifies that he has a serious medical condition. A torn up rotator cuff certainly qualifies as serious, I just had my surgery, SAD/AC/DCE/&RCTR, Thursday.

    What state is your husbands WC claim filed in? You have this marked as NC, is that the state his claim is filed in? Many truck drivers end up with the claim filed in a state other than the one they are domiciled in. The claim state can make a difference as far as WC and when/if the employer has to put him back to work when the Doc releases him as all states WC laws vary to some degree. In all 50 states it is illegal to terminate an employee "because" they filed a WC claim. Unfortunately in most states it is legal to fire said employee for other half baked excuses including exceeding FMLA time lines which equates to excessive absenteeism. There is a very small handful of states that actually mandate that the injured worker be allowed back to their job, so long as the doctor approves it, regardless of the length of time it takes to recover.

    Most states simply do not address the issue. Here is a recent article about a case in PA that you might find interesting. Many people have the mistaken idea that because the law is silent that there is little to no recourse when the employer does the dirty on an injured worker. This case was in Pennsylvania and quite clearly addresses the issue of "when the law is silent", in that is does NOT necessarily mean there is no violation nor recourse available to the worker:

    http://www.google.com/search?q=cache...lnk&cd=1&gl=us

    Most employers are smart enough to NOT term a worker while out on leave some are just ignorant enough to do it anyway and some get away scott free when they do. Most understand that it doesn't take a rocket scientist to figure out the real reason for discharge was the filing of the WC claim. Others simply think they are somehow above the law or that for whatever reason that the laws don't apply to them and for the most part go unchallenged.

    Many injured workers, especially those that have a very long time off work or have multiple injures, end up with issues of depression due to the injury and the many other problems that ensue that they simply don't have the energy nor fortitude left to dispute the termination. As sad as that seems it happens everyday here in our country.

    I certainly hope that your hubby is restored to his full employment and he isn't one on the casualty list forced to seek new employment. If by some chance his doctor feels like he would be a poor candidate to return to his previous line of work most states have vocational rehabilitation provisions within the WC statues. Voc rehab is usually furnished by the insurance company that is charged with paying the claim. In some states it is administered through the DOL or another state agency. Your states WC web site should say something concerning VR and who is responsible for it's administration.

    As Rearended points out you MAY need an attorney. Quite frankly unless his benefits are not being paid as they are supposed to be, (especially him getting all necessary medical treatment), or if the ER actually tries to discharge him once the doc releases him, I see no need in involving an attorney, not at this point anyway.

    Best of luck to your hubby, yourself, and family Littlecc. From one who is also going through a work injury I wish for a speedy recovery for your hubby.

    KM
    Last edited by Kick Me; 10-06-2007, 06:49 PM.
    Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

    Comment


    • #3
      kickme, I understand you would like employers to be more, maybe the word is sympathetic, to injured workers, but I have to take exception to your statement

      Most employers are smart enough to NOT term a worker while out on leave some are just ignorant enough to do it anyway and some get away scott free when they do. Most understand that it doesn't take a rocket scientist to figure out the real reason for discharge was the filing of the WC claim. Others simply think they are somehow above the law or that for whatever reason that the laws don't apply to them and for the most part go unchallenged.
      There is no LAW that says an employer can't discharge an employee who has exhausted his FMLA leave, although a few states offer more protection than others (think California).

      I also take exception to the stance that the "real reason for discharge was the filing of the WC claim". Again, in the majority of cases, the real reason for discharge was that FMLA had been exhausted. Most employers just don't have the luxury of keeping an employee on the books for an indefinite period of time; the work has to continue.

      Some employers will extend an additional LOA if they can; most just can't do it. Many will give priority to an ex-employee if, after release, they have a position open.

      But, it's disingenuous to say that employers who don't keep an injured employee on the books until they can return, no matter how long that is, are ignorant and are violating the law. In 99.99% of the cases, they aren't being/doing either.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

      Comment


      • #4
        Patty I take exception to your butting into information provided another poster to simply attack my response. So I guess that makes both of us exceptional people.

        I suggest you read the link concerning much of this very issue and tell the supreme court of the state of Pennsylvania where their opinion and logic is so wrong.

        http://www.google.com/search?q=cache...lnk&cd=1&gl=us

        Although Pennsylvania is an employment-at will-state, employers should be mindful of a recent state Supreme Court ruling that limits an employer's ability to terminate an employee. The Supreme Court found that in a case involving an employee that applied for Workers' Compensation benefits and was subsequently terminated, the employer violated public policy.

        Specifically, the Court held that terminating an employee in retaliation for exercising his or her right to file for Workers' Compensation benefits is contrary to the state legislature's intent in drafting the Workers' Compensation statute and therefore is not permissible.

        The Schrick/Taylor cases address much of the wrongdoings applied by many employers. I simply relayed what is clearly stated in the context of the Schrick/Taylor cases as well as many others. I will be more than happy to provide you a link to others if you like. Whether I "think" employers need to be more sympathetic toward their employees or not has nothing to do with it Patty. This is a matter of LAW and PUBLIC POLICY, NOT my opinion.

        Perhaps in your rush to post a response to me instead of attempting to help the OP you neglected to read what I actually stated Patty:

        Most
        employers are smart enough to NOT term a worker while out on leave some are just ignorant enough to do it anyway and some get away scott free when they do. Most understand that it doesn't take a rocket scientist to figure out the real reason for discharge was the filing of the WC claim. Others simply think they are somehow above the law or that for whatever reason that the laws don't apply to them and for the most part go unchallenged.

        See how it reads in bold face. Most ~vs~ some and Many ~vs~ others. Do you see the correlation now Patty? I did not even suggest that most employers are ignorant and ignore the laws that are clearly written, nor the jest of public policy that is sometimes derived from the unwritten. Some Patty, YES SOME employers are so ignorant that they totally disregard the laws pertaining to an employee when it comes to retention after an injury. To state otherwise would simply not be a truthful statement. The OP is concerned that her husband may well be working for an employer that will make little to no attempt to follow the law. She may well be right or she could be mistaken. She came here for factual information not to read others disagreeing over issues that in reality don't exist.

        Face it Patty "the real reason is the WC claim" for many that are terminated while in the middle of or shortly following a work place injury. Don't matter what spin the employer puts on it, nor what half baked excuse they use to cover their butts. Many courts are called on to sift through the evidence and find that the WC claim is the real reason for the termination as no other logical explanation exists. If not for the WC claim they wouldn't have had the absences, true or false? If not for the WC claim the employer would not be out thousands if not tens of thousands of dollars in additional WC insurance premiums, true or false? It is totally legal for a resignation of one's position to be part of a WC settlement agreement, true or false? If not for the WC claim many would have continued on with their lives going to work every day until time for retirement. If not for the WC claim this discussion would not even be taking place.

        So where is your answer to the OP's questions Patty? Seems like that would be more the part of a responder than to jump on another responder because you don't like what was said. I expect worse things will happen in my lifetime than to be attacked on an electronic bulletin board . I thought I recently read on one of these threads where the moderator had ask that responders keep there comments confined to the OP and furnishing pertinent information to the questions asked and to stop the bickering and attacks. Of course I could be wrong it may have been another board, I have been taking some fairly strong medication since my surgery last Thursday.

        KM
        Last edited by Kick Me; 10-06-2007, 06:56 PM.
        Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

        Comment


        • #5
          The case decision said in retaliation for. Firing someone in retaliation for has been illegal for years and no one here said it wasn't.

          You don't get to choose who responds.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

          Comment


          • #6
            Originally posted by Pattymd View Post
            You don't get to choose who responds.
            You are absolutely right Patty I don't get to choose who responds but I do get to choose whom to IGNORE. Good Bye.
            Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

            Comment


            • #7
              It is completely acceptable on this site to disagree with statements made by other posters. I didn't attack YOU personally.

              But, I guess you'll ignore this, too. Good-bye.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

              Comment


              • #8
                Kick Me:
                Your opinion on the matter is simply and factually incorrect. It simply is. Why beat up on someone for saying so ?

                Comment


                • #9
                  Cycler please tell me exactly where I am so wrong in saying that MOST employer do follow the law to the letter. That SOME disregard the law and much of what it pertains to?

                  All I know to tell you Cycler is the same as Patty. Go to the article and read what the SUPREME COURT OF PENNSYLVANIA has to say. These are NOT my thoughts nor opinions this is an actual recent case decided in the Pennsylvania Supreme court. I am sorry you don't agree with their decision. That is exactly what it is their decision.

                  Better yet go tell the injured worker how wrong he was is expecting his employer to follow the letter of the law where his WC claim was concerned. somehow I doubt he will agree with your theory either.

                  So we agree to disagree and move on.

                  Perhaps expending a little energy attempting to HELP the OP with her question might even be in order. What is it with you people anyway? Can a person not disclose legal information from a valid resource perfectly pertinent to the OP's question and not have it judged by the merits it deserves? Simply because you don't agree with the content of the article it does not change the decision, for crying out loud? Your OPINION does NOT alter the decision for this case decided by the Supreme Court of PA. If just doesn't.
                  Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                  Comment


                  • #10
                    In Agreement with Kick Me

                    Have found this discussion very interesting, as my situation parallels this. I am cleared to return to my former job which is available and posted, but my employer is giving me a very cold shoulder. They continue delaying, are interviewing others for same position, don't return calls, etc. I have had this same job for 23 years, and my replacement has now resigned. What I find so irritating is that I have read and reread numerous times the WC law in Connecticut, and can not find an answer to cover my situation, which is whether they can refuse to rehire me for my very same job. I will be termed if I am not hired back to this position. I guess this is the case of the silent law. I am going to look up some of the cases you suggested. At least it will give me something to do while not working. Thanks.

                    Comment


                    • #11
                      Can we please only post one situation per thread? It gets very confusing when mutliple posters chime in with their situation mid thread. The issues tend to get confused and blurred and often the circumstances are different enough that one answer doesn't fit all.


                      littlecc- We have no way of knowing what his employer might do. If he lost his CDL, obviously, he is going to need to get that back before they can put him back on the road. Virtually no physician is going to perform and sign off on a DOT physical for someone still recovering from shoulder surgery. There is no point in sending him now or even making the appointment until there is confirmation from his treating physician that he can possibly return. His 12 weeks have long since expired and he hasn't been terminated yet, so his employer is going above and beyond what is required by law. Your husband will need to speak with them to find out his options at this point. We have no way of knowing how long they can afford to be without him or what internal policies they may have for those on leave.

                      muffy- Unless the reason they refuse to rehire you is that you filed a WC claim, it isn't illegal for them to not rehire you, just as they may opt to not rehire any other employee. Some employer simply do not rehire once someone terminates. Others may give preference to those who have worked for them before but that isn't legally required and they may opt to treat rehires the same as any other applicant. How long were you out? Are you able to do the same job you left?
                      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                      Comment


                      • #12
                        Little CC, I have represented many NC truck drivers on comp cases over the years, and just about every one of them has been fired by the company he worked for before he could return to work as a driver.

                        The response in the trucking industry to injured drivers that I have seem time and time again in the past 15 years is this: you had the gall to get hurt on our job, so we'll show you--you're fired! It seems to be an emotional response as much as anything.

                        From the point of view of the employee who is fired, getting fired while you have restrictions in NC actually gives you an opportunity to maximize the settlement value of the work comp case. A highly paid truck driver who gets fired, and cannot return to driving due to his restrictions, is entitled to continued TTD payments until he returns to work. He needs to perform a diligent, reasonable job search and keep a diary documenting every job search contact or activity he makes, so that he can prove that he is disabled after the firing. Then if he finds a job that he can do within his restrictions and it pays less that he made pre-injury, the company or its carrier will have to pay him 2/3 of the difference between what he earned pre-injury (His "average weekly wage" or AWW) and what he makes on the new job for up to 300 weeks from his date of injury.

                        Here is an example: Driver earns $800 week pre-injury, gets fired, has restrictions, does job search, highest paying job he can find and do pays him $500 per week. There is a $300 per week difference. The temp partial check would be 2/3 of that, or $200 per week, for up to 300 weeks from his date of injury.

                        Contrast that with his impairment rating. Let's say post shoulder surgery he gets a typical 15% rating to the arm, which is worth 36 weeks times his compensation rate. Here, his comp rate is 2/3 of $800, which is $534. Now, 36 times $534 equals $19,224. But if he got hurt a year ago, he still has
                        248 weeks left for temp partial. (Actually this would be perm partial, loss of earning capacity money, under NCGS 97-30). Well, 248 weeks times $200 equals $49,600. Which would you rather have for your injury? $19K or $50K? The injured worker gets to choose which one he wants after he establishes his right to either.

                        But the insurance carrier usually will only offer the $19,224 because that is the minimum that they are required to pay. You will need a lawyer to get the $49,600 because you will have to prove your entitlement to it. And it will take a while. But after they fire him, they will offer the rating money--the $19,244 or whatever it works out to be--in the hope that you will be so desperate you will have to take it, and not pursue the better outcome that takes longer.

                        Now, a thinking employer will try not to fire an injured worker because it simply increases the costs of the comp case. And some of the companies in NC firing these guys are self-insured, so they are really making bad economic decisions. It doesn't matter if the firing is legal under the FMLA. That is irrelevant to the work comp law.

                        However, it is illegal in NC to fire or demote someone because they filed a work comp claim or OSHA complaint.


                        I don't understand why employers don't realize this and stop firing people. It looks like their insurance carriers, who are often the ones having to pay the additional benefits engendered by the firing, would put pressure on the companies to not fire injured workers. But that would be logical and make sense, which is probably why it does not happen. Emotions come into play and logic goes out the window.

                        My job is to maximize the value of comp cases for my clients, who are injured workers in NC. I know from the experience of some of my clients that sometimes, getting fired really does have a silver lining, at least for a while. I have had many clients over the years who qualified for the lost earning capacity money and got a much better outcome as a result. In fact, some of these IC case decisions are posted on the NC Industrial Commisson web site, where anyone can read them and get a sense of how this scenario works. If you want the cite to any of them, send me a PM and ask for it.
                        Bob Bollinger, Attorney
                        Board Certified Specialist in NC Workers' Compensation Law
                        Charlotte, NC

                        Comment


                        • #13
                          Bravo JoeC & Complyer. You guys GET IT. Something far too many others do NOT. It is simply not acceptable in civilized society to continue to allow any employer, be it a large conglomerate or a small mom & pop joint, to bully and intimidate the injured workers of this country. Call it what you like, put any spin on it that suits you, IT IS STILL TERMINATION for filing a WC claim. When an employee has NOT been threatened with discharge and suddenly finds oneself standing in the unemployment line after encountering a work related injury, and subsequent WC claim, the transparency of the other good and valid reasons to terminate is simply too apparent to ignore.

                          More state's court systems are beginning to see this for what it is worth and NOT allowing the ER free rein on discharging an injured worker. Many more need to follow suit. When large punitive damage awards are doled out more often the employers will begin to get the idea. Sure they can legally terminate an IW with some half baked excuse because they dared to get hurt on the job, but it is going to cost them when they do. Then and only then do the working class of this country stand a chance of getting a fair shake if ever injured on the job.

                          The US Armed Forces have had it right all along. When a member of the armed forces is injured in the line of duty they are given prompt and ongoing medical treatment, and their pay continues at the current level, it is not reduced by 33 1/3% as with WC. When said injured military personnel are released to return to duty the military places them in a position that the doc says the injured can do. If the injured member of the military is not going to return to full duty they are entitled to a medical discharge, which for all intents and purposes is equivalent to an honorable discharge. They are paid indemnity benefits on a monthly basis for the rest of their lives to compensate for the loss of use of the injured body part(s).

                          There is NO time limit on when a Veteran can make a claim for disability payments due to an injury sustained in the line of duty. Say for instance a young and otherwise healthy solider sustains a broken leg while in service. Years or even a decade later has complications with the same leg that was broken, even if only an early onset of arthritis that previously broken leg/arm whatever will be covered for disability payments and medical treatment by the VA.

                          All that need be shown by a treating physician is the connection of the current complication/problem and that it is "likely" to be a consequence of the original injury. Seems like the military gets it. The powers that be for the military understands that there are instances when a human has problems from a previously injured body part at a much later date than when the injury first occurred. They comprehend that in many instances it is a fact that a previously broken bone is more prone to early on set of arthritis. The US military does NOT penalize a Veteran because their body didn't exhibit all possible complications at the time of the injury. I guess Agent Orange used in Vietnam would be a good example of complications arising down the road that was not an issue at the time of discharge.

                          Said injured military members are also entitled to life time medical care, at any Veterans Hospital nationwide, (under certain circumstances the Veteran can get civilian medical treatment paid for in full by the VA), for that injured body part. They are also entitled to have a higher percentage of disability assigned as the natural aging progress takes place and arthritic conditions set in. When the percentage of disability is increased so too is the monthly indemnity payments. They are not tossed a menial settlement to just go away. Their injuries and subsequent disabilities are paid for through the Veterans Affairs for the rest of their lives.

                          IMHO, this is how any industrial injury and WC benefits should be paid. For injuries and subsequent impairment or disability most state's WC laws only allow a set number of weeks to be paid. Not that the disability/impairment won't last a life time mind you just some random number assigned by the law makers that says that is what you will be paid regardless of the impact this impairment/disability has on the remainder of your life. Nor what impact the impairment has on your ability to earn a living in the future. Most states WC laws only allow lifetime benefits, both medical and/or financial, if the injured worker is found to be at or near 100% disabled. It is nearly unheard of to be rated 100% disabled under WC guidelines, for almost all 50 states, and still be breathing. Also the military takes "compensable consequences" and "casual connection" into account much more readily than does most WC laws.

                          When our federal government can find the necessity of taking care of the injured and disabled why are employers and their insurance companies of this country not held to the same standard?
                          Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                          Comment


                          • #14
                            Not to get political but please tell you did not just compare an injury at work with being disabled in service to our country.
                            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                            Comment


                            • #15
                              Originally posted by ElleMD View Post
                              Not to get political but please tell you did not just compare an injury at work with being disabled in service to our country.
                              elle If you can't simply read the content as it was written and have such a hard time grasping the concept of what I previously posted then surely anything I add will not help you do so. As far as politics goes 99% of what is discussed in these forums is based on politics, especially the different WC systems in the US. I in NO way intended my comments to reflect disrespect toward any Veteran nor active member of the military. I just made a simple comparison so please try not to make more out of it than was intended.

                              JoeC, thank you for your addition to the post concerning the differences in the way Uncle Sam values people both during war time and in times of peace. When a person looses a percentage of the use of their body it affects their life the same regardless of what job they were doing when injured or who they happened to be doing it for. Be that when self employed, while working for a private employer, government agency, or the armed forces. I happen to find it disturbing that when working as a civilian the injured worker is viewed with such little value in comparison to the same injury sustained while an active member of the armed services.

                              I will add, for all it is worth, that I fully support every division of our US military and when a member of the armed services is injured, certainly if the injury occurs during a time of war and while in actual combat with the enemy, the additional combat pay or any extras they receive is never enough compensation to truly pay for their sacrifices while in service for our country, IMHO. Under those circumstances there is never enough benefits paid/available to truly compensate for those types of injuries. There certainly is a difference between someone sustaining an injury, say a blown out lumbar spine, while participating in a mock drill or day to day activities on a military base in the homeland and someone who is injured in the war zone. That was more what my intention of the compression was for. I suppose I did make the mistake of not being real clear about that in the first post. Bottom line Uncle Sam has a much better plan for compensation for injuries and subsequent impairments/disabilities than anyone working in a civilian position can ever hope to see for a work related injuries.
                              Last edited by Kick Me; 10-11-2007, 11:13 PM.
                              Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                              Comment

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