face fractured at work West Virginia

[SgtUSArmy]

I am really stumped on this situation. I was attacked at work by one of our clients; fracturing my face, nose, and dislocating my jaw. This has resulted in two surgeries to date, struggle to be compensated while off work for medical treatment, debts accrued that I am struggling to pay, medical bills from the surgeries that have been turned in to collections, not to mention that I can no longer open my mouth more than a few centimeters... One of my concerns is that my management/team leader position that I have worked so hard to achieve and held for nearly 2 years; consistantly and constantly proving my abilities, was posted and filled while I was in workers comp medical leave. The arrangement was that it would temporarily be filled until my return; that turned out not to be the case. When I mentioned this to our Human Resources Director, she said that she knew nothing of the position being posted and has yet to respond to my complaint. My question is: Is this a lawful move on the behalf of my employer? Any insight would be greatly appreciated!!

[GotSmart]

All medical bills should be turned in to workmans comp.

Get a lawyer ASAP.

[Pattymd]

How long were you off work? Does this employer have at least 50 employees at your job site or within a 75-mile radius? How long had you worked there at the time of the injury?

How are you doing now?

[SgtUSArmy]

I was off work for 4 months. There are about 110 employees within a 75 mile radious. I worked there over 4 years at the time of the injury. And I still have pains and lack of some jaw movement, but able to perform my original position.

[Pattymd]

Unfortunately, FMLA provides only 12 weeks per year of job-protected leave. Accordingly, the employer was not required to return you to your previous position, because you were off longer that 12 weeks.

[CAIW]

Did you request FMLA benefits?
If not, you should do this now... as Patty said, FMLA provides job protection, including employer paid health coverage continuation...up to 12 weeks/annum... FMAL cannot run concurrently with the WC leave UNTIL you have been notified IN WRITING by your ER of their intent to do so.

So...you could have 12 weeks/3 months of protected leave coming to you....but you need to get on this now.

Your ER/employer is certainly permitted to fill a vacancy while you are out on a industrial injury leave...or non industrial for that matter.
There are requirements however on your ER once you have been released to RTW/return to work.

You can read the WVA WC rules/statutes here http://www.wvinsurance.gov/Default.aspx?tabid=73

This site http://www.ppspublishers.com/articles/fmla.htm provides FMLA/ADA/WC overlap info for ER's, but valuable for the IW none the less.

It would be a good idea to discuss the merits of your WC claim with an attorney. There is no fee for this, and there would not be a fee unless there is an award/settlement to your claim.

[cbg]

FMAL cannot run concurrently with the WC leave UNTIL you have been notified IN WRITING by your ER of their intent to do so.

Is this a WV state law?

[Betty3]

Of course cbg meant FMLA.

[cbg]

I cut and pasted, and did not correct from the original .

[CAIW]

Should the employer give the employee any special notification under the FMLA?

In order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the WC leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement. The notice to the employee must detail the specific obligations of the employee while on FMLA leave and explain the consequences of a failure to meet these obligations. Most employers use the Department of Labor’s Form WH-381 to comply with these notice requirements. If the employer does not provide the notice, it cannot count the WC leave towards the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date.

If the employee has been on WC leave without being placed specifically on FMLA leave, the employer should send notice to the employee immediately so that the FMLA clock starts running. However, the employer may then only designate the leave from the date written notice to the employee is provided. It cannot retroactively designate the time spent on WC leave against the FMLA entitlement.

''FMAL'' is my typo.... I'm left hand dominant and have a slight cataract (sp)in my right eye.. sorry...

Prevent Legal Headaches: Count WC Leave as FMLA

Since most workers’ compensation leaves typically will be covered under the FMLA, employers should be prepared to comply with both laws. Failure to categorize a WC leave as a FMLA leave generally will not harm the employee as long as he gets all of the benefits of FMLA leave, such as continued health insurance and reinstatement rights. However, the employer may lose the opportunity to count the time on WC leave against the employee’s FMLA entitlement and may extend unnecessarily the employee’s FMLA leave eligibility. In addition, employers may violate the FMLA if they do not reinstate an employee from a WC leave that was not properly designated as FMLA leave.

http://www.ppspublishers.com/articles/fmla.htm

[Betty3]

''FMAL'' is my typo.... I'm left hand dominant and have a slight cataract (sp)in my right eye.. sorry...

Well then it's your fault - sorry cbg.

[cbg]

I'm not trying to be obstructionist, really.

But FMLA is a Federal law, whereas most workers comp law is state.

So what I am trying to determine is, is this part of the Federal statute that has somehow escaped me (not impossible since I have less workers comp experience than one might think, given the length of time I've been in HR); a state law, or the opinion of the author of the article?

[SgtUSArmy]

To my knowledge I was not and still have not been placed on FMLA. I have returned to work placed on a modified light duty. Was the HR Director required to inform me of this option? Since I have returned on a light duty, am I still eligible for FMLA?

Thanks to all for your advice! My son and I are struggling to make it in this economy now after all this mess! I was even forced to drop out of college.

[CAIW]

Was the HR Director required to inform me of this option?

You can find explanation on FMLA here http://www.laborandemploymentlawblog...medical_leave/

Dept Of Labor info on FMLA is here http://www.dol.gov/whd/fmla/finalrul...litaryFAQs.pdf Pg 3 addresses employer notification requirements.

Q. How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?

A. Under the regulations, an employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. etc. etc.

Q. If an employer fails to tell and employee that leave has been designated as FMLA leave, can the employer count the leave against the employee's FMLA leave entitlement?

A. The regulations revise the designation provisions to comply with the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). Ragsdale ruled that a "categorical" penalty for failure to appropriately designate FMLA leave was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute's remedial requirement to demonstrate individual harm. Under the regulations, retroactive designation is permitted if an employer fails to timely designate leave as FMLA leave (and notify the employee of the designation). The employer may be liable, however, if the employee can show that he or she has suffered harm or injury as a result of the failure to timely designate the leave as FMLA. Additionally, an employee and employer may agree to retro]actively designate an absence as FMLA-protected.

(cbg) wrote: So what I am trying to determine is, is this part of the Federal statute that has somehow escaped me (not impossible since I have less workers comp experience than one might think, given the length of time I've been in HR); a state law, or the opinion of the author of the article?

I think the ''opinion'' I posted was that of the author in the link provided... however per the DOL above, WC is not specifically addressed. That said though, EE's suffering industrial injury/illness are not necessarily being aware or noticed of their FMLA rights. If the ER opts to run WC leave with FMLA concurrently, the ER would be required to notify the EE/IW in writing of the intent. The scenario above would come under mutual agreement by/between the EE/ER.

In my experience... IW"s are not only unaware of their FMLA rights (regardless of the posting mandates)...but don't necessarily wish to run the FMLA leave along with WC leave... no doubt as most are under the impression their jobs are protected under the WC statutes.
Yet again the lack of understanding or knowledge of WC in general.

whereas most workers comp law is state.

OOOOHHHH and thank, ...well, thank whoever had the presence of mind to keep the feds out of state WC systems....and hopefully continues to hold that thumb hard in position.

I meant to question this previously...
Sgt... is that simply your chosen screen name, or are you in fact associated with, and injured in your couse of employment with the U.S. armed services?
If yes... you are a federal 'employee'... there could be other rules/statutes that apply here, as well as military rules under FMLA. (?)

[SgtUSArmy]

I was in the US Army for 9 years. When I got out, I came to this job that I am in concern of.