Filing A Workers Compensation Claim Without Fear Of Retaliation
This is an all too common problem:
“I got injured at work, but do not want to file a Workers Compensation claim because I’m afraid I will lose my job, or that my employer will treat me badly.”
There is always a risk of a work-related injury if you are employed. For that reason, employers in California are required by law to provide Workers Compensation insurance for their employees. Thus, if you get injured at work—or acquire an illness that can be attributed to your work—your employer is required to inform you of their Workers Compensation insurance carrier, provide you with a claim form, and pay for your medical treatment.
Workers Compensation ensures that an injured worker receives some form of wage replacement while receiving medical care for their work-related injury. In order to qualify for that benefit—called “Temporary Disability”—you must be continuously off work, declared “temporarily totally disabled,” and engaged in active treatment. Ordinarily, you are not entitled to this benefit for simple medical appointments.
The Workers Compensation system has developed a reputation—some of it good, some of it not so good. The “good” is that Workers Compensation is a specialized area of law that provides for injured workers only. It allows injured workers to seek the proper medical care to recover after an injury, without relying on their private insurance carrier. The “not so good,” is that frivolous claims do happen – which leads to negative impression by employers. Such claims (and the perception created by them) are the primary reason that Workers Compensation may be viewed negatively or met with skepticism by employers. This contributes to the hostility some employers may have towards an employee who files for such benefits.
Most employers, however, understand the risks involved in performing certain duties at work, whether it’s carrying heavy loads, excessive typing, or repetitive bending. There is always a possibility that, with a wrong move or repetitive motions over time, an injury will arise. If you continue to work, knowing you’ve sustained an injury and don’t seek the proper treatment, you may compound your injury until you are unable to work at all. Thus, injured workers should not refrain from filing a Workers Compensation claim out of fear. Though there have been situations where an employer has fired an employee for filing a Workers Compensation claim, or been treated a hostile manner by the employer, these situations can sometimes be corrected with prompt and appropriate action by the employee.
At-will Employment & Your Disability
Most workers have “at-will” employment. This means that an employer may fire an employee with or without just cause. In other words, no reason or warning is required to justify the termination of employment. However, an employer may not fire you because of your disability. Most employers must comply with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), which prohibit them from discriminating against workers due to their disabilities.
You and your employer will become aware of any disabilities you may have after you receive diagnosis and treatment from a physician. Typically, an injured worker will be treated by a Primary Treating Physician (PTP) within the Workers Compensation system, known as the Medical Provider Network (MPN). Generally, the PTP will write a report that lists any physical limitations, known as “modified duties” or “restrictions,” you may have. Upon notification of these restrictions, your employer is required to make a good-faith effort to reasonably accommodate these modified duties.
However, not all employers may be able to accommodate such modified duties. Your only option will be to seek other work or cease working. In these situations, the employer would not be violating the law for “letting you go,” since they just can’t accommodate your restrictions.
Wrongful Termination & Your Disability
If it’s obvious that your employer fired you solely because of your work-related injury—or for filing a Workers Compensation claim—you should definitely consult an attorney. A different legal issue is at stake—wrongful termination. It is generally illegal for an employer to fire or punish you for exercising your rights to receive Workers Compensation for a work-related injury. If this occurs, the employee must prove* that he or she was fired as a form of retaliation for filing the claim. Thus, if you feel that you are facing a situation like this, you must inform your attorney as soon as possible. He or she may choose to take action on your behalf or refer you to a specialist in Employment Law.
*Note: Proving that the termination was substantially due to the exercise of your rights as an injured worker can be difficult. Each case must be assessed by a qualified attorney based on the facts accompanying it.
If your injury is indeed work-related and has been accepted by the insurance carrier, there should be no hostility between you and your employer—you are not suing your employer when you file for Workers Compensation. You are merely seeking the benefits afforded to you by law and from an insurance policy your employer pays for.
Thus, filing for Workers Compensation should not be feared—it should be exercised in order to help you return to work quickly. We at The Law Offices of Maurice L. Abarr are uniquely well qualified to advocate for you and protect your rights. Contact us today for a free consultation.
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NOTICE: Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.