Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

Wage replacement after being terminated during workmans comp claim California

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Wage replacement after being terminated during workmans comp claim California

    I was injured at work 7/07 and have an open claim with my employer at the time. In August I had to have surgery on a different problem and so was off on state disability under FMLA. I called my employer last week to tell them I would be released to work (with the previous limitations from my work related shoulder injury) next week. I didn't receive a call back but yesterday I got a letter telling me since FMLA had expired (I was off 14 weeks) I had been "discharged". I cannot get a new job in my current career (RN) with the limitation I have due to my work injury and Comp is fighting me on the surgery my Dr. has recommended. Does workmans comp have to pay me wage replacement as they would have if I were still employed but unable to work or are they "off the hook" so to speak since I am no longer employed with that Hospital? I know they have to continue paying medical bills but I don't want to get screwed out of wage replacement while I can't do my regular work.

  • #2
    It is iffy whether or not they need to pay you wage replacement since the reason you are not employed isn't because of your injury but for an unrelated reason. Typically if your employer was able to offer light duty had you remained employed there is at least a case to be made for discontinuing the indemnity payments. If that is the case, you should file for UC.
    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


    • #3
      If the injury keeps you from working as an RN, then I think you would get wage replacement under work comp in most if not all states. And canning you when you were ready to come back to work is pretty typical for nurses with restrictions, I think.

      They may claim they fired you for "unrelated reasons" but that is clearly a pretext and it is both a disingenuous and a bogus reason. They fired you because you got hurt and now have restrictions. The fact that your FMLA had run out just simply lets them fire you under the circumstances without getting hit with a federal lawsuit for illegal termination. It is not really the reason that they fired you. They could have made an exception for you if they had wanted you back. They could have fired you and then hired you right back. But they did not want you back there, no doubt due to your injuries and restrictions.

      I see this fact pattern at least once a month. You should see the HR folks squirm on the witness stand when I cross-examine them about the rationale for these FMLA firings. The work comp judges never give the employer a break when HR has fired someone who is still on restrictions after the FMLA runs out. The NC work comp judges know it is a pretext.

      Good luck
      Bob Bollinger, Attorney
      Board Certified Specialist in NC Workers' Compensation Law
      Charlotte, NC

      Comment


      • #4
        I think you are making a lot of assumptions about an employer you know nothing about. There is nothing illegal about firing an employee who has been out longer than FMLA provides and it certainly isn't uncommon to do so, whether WC is filed or not.
        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


        • #5
          I didn't say it was illegal. I said it was a pretext, and that they wanted to get rid of the nurse bc she was hurt and on restrictions. That is a problem because her ability to do her job is impaired.

          This has been a quite common fact pattern within my sphere of knowledge and experience and it predates the FMLA. The FMLA has just made it easier for employers to avoid liability for wrongful termination because now they can just wait for week 13 and they are not required to bring the person back to work. But they still have the open comp case to deal with.

          Yes, I am making an assumption. I assumed that this employer is like the ones that I deal with and am aware of in my state. And I know that HR folks discuss this tactic openly when they go to their training seminars on the law. Been there, heard it with my very own ears, sitting at the table up front as the work comp faculty. So I am not making a very large assumption.
          Bob Bollinger, Attorney
          Board Certified Specialist in NC Workers' Compensation Law
          Charlotte, NC

          Comment


          • #6
            There may be some that use it as a tactic but there are plenty of others that are just applying the policy in a consistent manner or who are simply unable to afford to leave a position open for more than 12 weeks. It doesn't make them a bad employer, and it doesn't mean they are looking for a way to be rid of the employee. It often just means that after 3 months without them, they really need to have someone in that position. While I do offer lengthier leaves and light duty, neither is required and it can be burdensome.
            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


            • #7
              I believe the "burden" of light duty

              is why I was terminated. My employer was paying me my usual wage as a critical care RN to do paperwork. Jobs for me were random and tedious at best before I left for the emergent surgery that kept me off for 14 weeks.
              Also, I am sure my employer does need to fill my position since it has been advertised since about 6 weeks into my disability and is still vacant.
              RN's are not easy to come by and those of us with critical backgrounds (I have over 7 years) are even harder to find.
              It would have been nice if my employer would have communicated to me that my job was in jeopardy......I might have been able to get my surgeon to let me go back on light duty a few weeks ago or at least I would have known what was going on. I recieved NO communication from HR except for a letter about FMLA (which I recieved the week after I went out on disability) dispite at least 4-5 phone calls from me to HR (always voice mail) to keep them updated on my progress.
              Thank you both for your input. I do have an attorney consultation coming up.

              Comment


              • #8
                Bear in mind that periods of light duty also count toward the 12 weeks of FMLA. Even if you had only been off for 8 weeks for surgery and then returned to 4 more on light duty, your 12 weeks would have expired and you could have been terminated in any case.

                Light duty isn't required though it may be offered. It sounds like the employer simply did what they had to do if your position is critical and they simply could not be without that specialty for a long period of time.
                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


                • #9
                  Critical care RN's are hard to come by.

                  It is very unusual to let one go who is core staff (not a traveler) when you know she/he will be back. I know this from also being in Nursing management. When you have an experienced, local staff person who is sick or injured you use travel nurses to cover since they are short term contract employees only and are much easier to find then a person who wants to hire on permanently ( staff RN's make less money than travelers).

                  Comment


                  • #10
                    I'm familiar with the use of agency nurses to fill in the gaps, however they also do cost the employer more and it does not solve the problem of what to do with the employee the agency nurse is covering. Have others in your position been granted leaves for the duration you need? It sounds as though it may be a year before you are able to fulfill your actual nursing duties between the light duty and two surgeries. A short extention of leave may be reasonable under ADA (assuming ADA applies) but an indefinite absence from your primary duties is not.
                    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


                    • #11
                      There is one nurse there I know offhand

                      has been on light duty for over a year (not a work injury). In fact they may have created a position for her permantly within her limitations (which are greater than mine.)

                      I was ready to go back this week and the surgery for the work injury is under appeal. The surgeon states time off for that would be 6-10 weeks NOT a year.
                      I know travel nurses make more money... significantly more but now they will need to use them indefinately. This is a very small community and RN's are NOT beating the doors down to get staff jobs here. There are only 2 small hospitals.... the one I was at is the smallest and pays the least in fact I took an $8 an hour pay cut to go there when the other local hospital down-sized a few years ago. It seems it would be more cost effective to hang on to a staff RN and cover her for 4-6 months with a traveler than hire travelers ad nauseum to fill that empty position (not the only one btw).
                      The timing of this just screams that I am being let go to avoid paying me nurse wages to do secretarial stuff while having to ALSO pay a traveler to cover me. Short sighted IMO but this isn't the first time they have done something like this.

                      Comment


                      • #12
                        If this other person's limitations are much more severe and long lasting, then it may be that her condition falls under ADA. If yours are essentially short term situations, then it would not.

                        Whether you agree that the added expense of your salary and the agency nurse are worth it in the long term is not a factor. Business related decisions are a legal and valid reason for the employer to terminate, even if you are currently being covered by WC.

                        If you are pursuing an appeal to get the shoulder surgery covered, then part of that appeal will likely include the TTD issue. It can't hurt to try and get it covered, it just isn't a certainty by any stretch that it will be.
                        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

                        The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                        Working...
                        X