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  1. #1
    Join Date
    Mar 2008
    Posts
    2

    Default Can You Get Fired For Getting Hurt On The Job

    I live in Washington state. I have had 4 back surgeries since 1999. My latest was on Feb. 4 2008. My previous surgeries I had no problem returning to my normal duties with no restrictions. I still am on L&I and getting my bennifits. I had my post-op appointment today(3/4/08). My doctor wants me to do P.T. witch I have done in the past also. I have been in contact with my employer throughout this injury, so I called my boss to let them know that my Doctor is sending me to P.T. Around 3:30 today my boss called me back to ask me if I will meet with her and the Board Director to discuss the matter on Friday 4-7-08. They have Questions they want to ask me. I asked my boss if I should be concerned, she told me she does not know. I have been there almost 13 years and when the manager the Board Director and an employee meet...it's not good.

    So my question is, can they fire me because of my injury even if I complete my P.T. with no limitations? What are my rights as an injured employee?

  2. #2
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Can You Get Fired For Getting Hurt On The Job

    Watergod, welcome to the forums for IW on WC.

    The good news in answer your question, NO, you can NOT be fired "because" you had an injury sustained on the job. That is specifically illegal in all 50 US states per WC state statues.

    The bad news in answer to your question, YES, you CAN be fired in spite of an on the job injury. This is true of course in the absence of a bona-fide employment contract stating otherwise or if you are a member of a labor union with a CBA prohibiting such actions.

    Many employers will drum up any number of excuses to terminate an employee that has been hurt on the job that keeps them from crossing that line of legal and illegal terminations. Such as excessive absenteeism, can no longer preform the job and there is NO light or modified duty if you are medically released to work at such.

    The laws where modified duty is concerned is very clear and the ADA has very clearly established what they are. ADA is dictated at the federal level so it doesn't make any difference what state you are domiciled in. The only thing a state law can do to override the federal ADA guidelines is to offer better protection for the EE. States can never pass a law that lessens what the federal laws are. They must meet or exceed the minimum federal guidelines. Many employers either do not know, understand, care, or simply choose to ignore the ADA laws.

    You have the responsibility to invoke your right to the "Interactive Process". The ER is required to make "reasonable accommodations" for EE's with disabilities. See here for more information concerning the ADA and what the law say is required of both you and the ER;

    http://www.mediate.com/articles/bullivant.cfm

    All states, (except Montana and even MT to some degree), operate according to the "At Will" doctrine where employment is concerned. There are some exceptions to at will but for the most part an ER can discharge an EE at anytime, for any reason, or no reason at all; Except if the termination is based on a legally protected characteristic such as age, race, religion, etc... For instance my ER can term me because s/he discriminates against red heads. However, s/he can NOT legally term me because s/he discriminates against red headed "females", as gender is a legally protected class of people.

    The good news of course is the EE also can quit at any time for any reason or no reason at all!

    See here for details of the "At Will" doctrine;

    http://www.bls.gov/opub/mlr/2001/01/art1full.pdf

    If you aren't already represented by a good attorney, one that is board certified as a WC specialist, now might be a good time to start looking for one as it sounds like you just "might" need one prior to that meeting in April. In your search for a WC attorney do NOT under any circumstances call one of those half baked outfits that advertise on TV. Yes I know about the ads claiming about their long arm of the law and all but I can assure you the only long arm they have is straight into your wallet. They seldom deliver any type of representation to the IW and often sell the IW short to get at the almighty settlement and every dime they can make off with. More often than not leaving the IW holding the bag for such things as future medical, vocational rehabilitation, and many other items that most states WC laws dictate an IW is entitled to. Just be very selective as to who you contract with for legal representation.

    Here is a web pointer, compliments of our resident expert WC attorney Bob Bollinger, AKA Complwyr, from NC;

    http://www.wilg.org/index.asp

    Check the website for a WC specialist attorneys in your area. You might also check with your friends, neighbors, co workers, or family members that may have used a WC attorney that they can recommend. Even the yellow pages or your local new paper can be of help when seeking a WC attorney.

    Just be sure and go to your states bar association and check out any attorney you are considering consulting with. Check to see if there have been sanctions waged against the attorney or if there might be something pending. This is especially important IF the attorney has been found to have violated ethics codes or laws where WC cases, settlements, etc., are concerned. You know the old saying about history repeating itself!

    Speaking of consultation the initial visit is usually free of charge and can give you some valuable insight as to IF you would want that particular attorney/firm representing you with your WC case. WC attorneys work on a contingency fee basis, plus cost. Every state dictates what the fee percentage is and IF by some off handed chance you never receive any money, once the attorney is involved, then you never pay anything except the cost that the attorney puts out to work your case. This would be for things like copying files, costs to consult with expert witnesses, telephone fees, etc...

    Does the attorney spend time with you face to face? Will the attorney take calls from you if you have a question now or down the road? Is there a paralegal or other legal specialist available to answer questions in your attorney's absence? Do you feel comfortable discussing your case with the attorney? Do the support staff seem happy to be there? Or do they look as if they would rather be anywhere else on the planet? That would be a sure sign something is amiss and it is time to run. That first meeting should give you a pretty good feel for basing your choice on. If you don't feel right about a particular attorney/firm then that is a pretty good sign to hit the door and look elsewhere.

    Do NOT enter into a contingency contract until you are sure that a particular attorney/firm is who you want representing you with your WC case. You can always discharge an attorney and find another but it is NOT a good idea to do so as it can and usually does have some detrimental affects on your case. Among other things any subsequent attorney you hire will be required to share the fee and most would rather work the case from the onset and enjoy the fruits of their labor not share the bounty with someone no longer involved in your case.

    Good luck to you Watergod. Be sure and post back and let us know how things are going.

    Take care and be well,

    Steel
    Last edited by SteelMagnolia; 03-05-2008 at 05:13 AM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  3. #3
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Can You Get Fired For Getting Hurt On The Job

    Waterdog, another point I forgot to mention in the earlier post is this. Have you applied for SSDI benefits? IF not you need to seriously consider doing such. SSDI can and often times does pay in addition to WC benefits. You can draw up to the difference of 80% of your most recent AWW and the 2/3 of the AWW that WC pays.

    Albeit that SSDI is paid at a reduced rate, usually, while you are receiving money from the WC IC. SSDI not only pays you a monthly money benefit but after 24 months from when SSA says you are disabled you are entitled to Medicare, which for most is a tremendous benefit to have.

    For the most part SSA guidelines to meet total disability are much more stringent than any other type of disability criteria. However, unlike your WC claim SSA takes ALL disabling conditions into consideration. It can often times does take several months or even over 2 years, depending on the area of the county you file in and the current case load, to win an approval for SSDI. The most important thing to remember is "many" applications are denied and must be appealed. Most to the ALJ, Administrative Law Judge Level or appeals. Don't let that dissuade you from applying "IF" you are otherwise qualified. It stinks the way the system is set up but it is what it is.

    Meeting the qualifications for SSDI is one of two situations. Being unable to work at any SGA, Substantial Gainful Activity, (for 2008 SGA is considered to be making $940 or more per month), due to a physical and/or psychological illness/injury for a minimum of one year. And "OR" having an impairment that is expected to result in your death.

    See here for some valuable information concerning SSDI;

    http://www.disabilitysecrets.com/tips.html

    When you are thoroughly familiar with the process you can apply over the phone, on line, or in person.

    http://www.ssa.gov/

    Be sure and follow up on this if you aren't already hooked up with SSDI.

    Steel

    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  4. #4
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Can You Get Fired For Getting Hurt On The Job

    OK one last thought. I want to make it perfectly clear that I am NOT advocating that anyone that does not sincerely believe that they are and will be eligible for SSDI benefits apply for such. One of the main reasons that SSDI takes so long to get approval for those that seriously need it is so many frivolous claims being filed by people that know they are NOT qualified to receive these benefits. Personally I think there should be some sort of penalty for those that file these frivolous applications.

    Watergod with your history of back injuries you never know when the next injury may put you out permanently. Hopefully it isn't this one but you never know and it is better to cover your bases. Especially under the circumstances that you describe, four back surgeries in 9 years is a LOT of back surgery. Has all of these been in the same place or different areas of your back?

    As always take care and be well.

    Steel
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

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