Fired for On The Job Injury

[maccadave]

My workers compensation claim was made in the State of: TN
I injured my shoulder within the course and scope of my employment, while making deliveries to a nationl chain restaurant. Notified my employer two days later of the injury. He just said to rest and he didn't schedule me for work the rest of the week. I went to my own doctor five days later because my shoulder still hurt. Doc gave me an "off work" for 2 weeks notice until I could see an orthopedic doc. I gave him the doctor's excuse and he handed it to the transportation manager, who walked right by me and didn't say a word to me. I asked my supervisor if he could schedule me for work, such as working the yard, dispatching, or driving shuttles. He said until I could return to work at "full duty" the company couldn't use me. Went to the ortho doc and he told me not to do any lifting for 3 weeks. Went back to my employer with the ortho's excuse and was told to see the HR lady. I asked the HR lady how I was going to pay for my health insurance if I wasn't being scheduled to work. She went to another office and came back in a couple of minutes and said that because I had a pre-existing injury, (not true) they had decided to terminate me. Well, they did "term" me. Do I have a retaliatory discharge / wrongful termination case against them? I had been employed almost 5 months with the company which has over 1,700 employees and does $2.4 billion in sales every year. The company initially denied my WC claim, but I had the TN Dept. of Labor help me and the company is now paying me TTD, as I have had surgery on my shoulder and am looking at another surgery, because the partial tear in my rotator cuff has not healed. I have no strength in my arm and cannot lift over 17 pounds without pain. Will the insurance company offer me a settlement not to go to trial with ret. discharge?

[just me]

the insurance company has nothing to do with them terminating you. They will only settle with you on your injury not on your employer. Since you have been terminated by your employer they can pay for job training, help with job searches at their cost. My opinion to you is get an attorney to fight your employer for the termination. I too was on work comp for almost 2 years when my employer so called layed me off. I have already had one attorney tell me that he would take my case but wanted too much up front. My case is in Illinois so not sure if we have the same laws as work comp but may help with some ideas you are looking at. Hope this helps.

[maccadave]

Yeah, I know the IC doesn't have anything to do with my termination. I meant to ask if my former company would want to settle with me before trial, and forego the negative publicity about the company. I satisfied all of the elements of "prima facie" in the state of TN......

Retaliatory discharge for filing a workers' comp claim. Tennessee public policy favors permitting injured employees to receive the benefits to which they may be entitled under workers' compensation law freely and without fear of reprisal. Under Tennessee law, an employer may discharge an at-will employee with or without cause, but not on account of the employee's assertion of a workers¿ compensation claim. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The elements of a prima facie case of this type of retaliatory discharge are:

(1) the plaintiff was an employee of the defendant at the time of the injury;

(2) the plaintiff made a claim against the defendant for workers' compensation benefits;

(3) the defendant terminated the plaintiff's employment; and

(4) the claim for workers' compensation benefits was a substantial factor in the employer's motivation to terminate the employee's employment.

A "claim" for workers' compensation benefits need not be a formal claim nor the filing of a lawsuit. Instead, once an employer has notice that an employee has been injured on the job and requires medical attention, the employer has an obligation to furnish medical treatment and a panel of physicians, whether the employee asks for such items or not. At that point, if the employer terminates the employment on account of this knowledge, the "claim" element is met. See Elliott v. The Blakeford at Green Hills Corp., 2000 Tenn. App. LEXIS 806, 17 BNA IER Cas 129.

The burden of proof in a retaliatory discharge case is on the plaintiff to produce some evidence of retaliatory motive. In order to establish the fourth, or "substantial factor" element of the prima facie case, the employee must present either direct evidence of the necessary causal link, or he or she may introduce circumstantial evidence of the causal link. However, proof by circumstantial evidence must be "compelling." Reed v. Alamo Rent-A-Car.

I've done quite a bit or research on this and think I am able to prove my case. If anyone can give me a heads-up or any other things to research, please do so and thanks in advance!

[Charles Stevens]

Mac, under FEHA/ADA Fed and State laws, it is illegal to discriminate against an employee BECAUSE the individual has a "perceived impairment"/disability. Further, the employer is REQUIRED to engage in the "interactive process" with the employee to determine if "reasonable accomodation" can be made.

That means that the employer sits down and talks with YOU about your work restrictions, and HOW they could be reasonably accomodated. It does NOT mean that the employer makes a UNILATERAL DECISION regarding your job and continued employment....

IF, during the interactive process, it is determined that the employe can not perform the "essential duties" of his/her usual and customary work with or without reasonable accomodation, then the employer MUST make a "good faith" effort and exercise "due diligence" in finding ANOTHER job in the company that is AVAILABLE that the employee is QUALIFIED to perform with reasonable accomodation. The burden is on the employer to PROVE taht reasonable accomdation would impose an "undue hardship".

You CLEARLY tried to evoke your rights under FEHA/ADA when YOU took the initiative and inquired with your employer about OTHER jobs that were available and within your restrictions, even though you did not utter the "magic words", FEHA/ADA, "interactive process" and/or "reasonable accomodation", and the person in Human Resources SHOULD be VERY FAMILIAR with FEHA/ADA requirements....If NOT, then it looks like YOU will be EDUCATING your Employer!!

You MUST DOCUMENT EVERYTHING while it is fresh in your mind....dates, times, names, who said what, and any witnesses to ANY and ALL crappy and disparaging remarks made towards you, and the circumstances of your termination.

You MUST then call EACH and EVERY State and Federal Agency like FEHA, EEOC that deals with discrimination and labor law, etc, for there are strict timeframes for filing a complaint. You may not necessarily need an attorney, for these agencies will conduct their own investigation, and have in-house counsel.

However, you may very well wish to consult with SEVERAL EXPERIENCED Labor Law attorneys to assist you and provide further guidance, in addition to several experienced Work Comp attorneys to assist you with the retaliatory discharge as related to you having FILED a Work Comp claim.

These two different causes of action are NOT "mutually exclusive": You have one claim under WC for having FILED a WC claim, and a potential CIVIL cause of action under FEHA/ADA for discrimination BECAUSE of your "perceived impairment"/disability....

In the interim, "google" FEHA/ADA and start learning about YOUR RIGHTS as an employee with a "perceived impairment"/disability....

Good luck, and keep us posted...

[maccadave]

Charles,
Thanks for all of the info. Yes, I did ask about other jobs within the company, all of which I had performed before my injury. My doctor had cleared me to drive a truck, but no repetitive, heavy lifting.
I have documented the whole process, from the day of my injury until this present day - all in a journal with names, times, dates etc.
I filed a complaint with TN EEOC back in Feb. '08, but they have not even assigned it to an investigator yet. They told me it takes 6 mos. to a year to even get assigned! Talk about a back-log!!
I'll check out the FEHA / ADA......didn't even know it existed.
Thanks again!

[BvIA]

Here is some information for you on EEOC...http://www.eeoc.gov/policy/docs/workcomp.html

"FEHA" is Fair Employment & Housing Administration in Calif.
There is a "Federal EHA'' (don't recall the name now) as well...both cover pretty much the same issues...but in your case, you do need to access the Federal statute...
EEOC and your state EDD/Employment Developement Dept as well as your state labor board can usually be accessed through your unemployment ins office...and that 6 month delay probably isn't that unusual...just think of how many ER's are in violation of EE's rights when it takes SIX months to get assignment to an investigator...
Nothing is going to be a 'speedy' ordeal here...your ER will probably make some sort of an offer to get you to 'go away'...when they have a meeting with their attorney and find out how much this is going to cost them to ligitage the claim...you'll see some kind of an offer...maybe 3 or 4 ! before this would go to trial.
You can probably look at 2 years of longer before this could ever go before a judge...It could take a year or more to get the parties together for a deposition.
And, while there should not be a up front fee for a WC case, there will be a cost involved for you to find an attorney to take this/EEOC case...and it could be a substantial amount... depositions alone could cost in the neighborhood of $300/hr...plus the court reporter. $2000 for a depostion would not be unheard of.

[whatamess]

Here is a recent supreme court ruling on your entitlement to a retaliatory discharge claim regarding termination on workers' compensation.....

http://www.supremecourtofohio.gov/ro...-ohio-6751.pdf

The entire system sucks there is no justice for the injured workers or employees any more...trust me we are going through same thing now.

Good luck in finding an attorney to take the case and be sure you follow up on your statutes of 90 day notice to employer and then filing complaint into court within 180 days.

Beth

Charles,
Thanks for all of the info. Yes, I did ask about other jobs within the company, all of which I had performed before my injury. My doctor had cleared me to drive a truck, but no repetitive, heavy lifting.
I have documented the whole process, from the day of my injury until this present day - all in a journal with names, times, dates etc.
I filed a complaint with TN EEOC back in Feb. '08, but they have not even assigned it to an investigator yet. They told me it takes 6 mos. to a year to even get assigned! Talk about a back-log!!
I'll check out the FEHA / ADA......didn't even know it existed.
Thanks again!

[Loki]

Hi Maccadave and others:

My name is Loki. I am an injured worker from California with a serious neck injury.

I have worked in the Disability Rights Movement for 25 years. I would like to share some information with you about filing an employment discrimination action.

You said

I filed a complaint with TN EEOC back in Feb. '08, but they have not even assigned it to an investigator yet. They told me it takes 6 mos. to a year to even get assigned! Talk about a back-log!!

Did you your complaint with the Field Office of the Federal EEOC? There is a District Office in Memphis and a field office in Nashvile. Or Does TN it's own version of Equal Employment Opportunity?

Since you posted this on an Injured Workers' Forum, I am assuming that you filed your complaint with the TN EEOC, based on the Federal ADA (American with Disabilities Act) The rest of my post is based on this assumption.

If you filed a complaint with TN's State EEOC, you may want to compare TN's law with the ADA, to see if your state law is weaker than the ADA. If so, you may want to determine if you are covered by the ADA. If you are covered by the ADA (not all injured workers are covered the ADA).

Here is the link to the Federal EEOC:

http://www.EEOC.com

If you filed your complaint under TN's state law, you may want to file an ADA Title I complaint. Where you file this complaint depends on who your employer is. If it is a private employer, you file with the EEOC
(Equal Employment Opportunity Commission) If your employer is a public employer, you file with the DOJ (Department of Justic). If you decide to go this route, you have to file the ADA complaint witin 300 days.

If you end up filing in both places, they will determine who will investigate your complaint.

You need to file a complaint before you can file a civil action in either your state or federal court.

The EEOC investigates your complaint by reviewing information from both you and your employer. If you are covered by the ADA, the EEOC will send written notification of to the employer charged with violating the
ADA within 10 days.

Then the EEOC will investigate charges of discrimination. If the EEOC believes that the employer has discriminated against you, it will try to resolve the charge through required conciliation and obtain full relief for you. If conciliation fails, the EEOC will file suit or issue a “right to sue” letter to you so that you may file an action in federal court.

The concilation process is a hearing. You do not need an attorney for this process.

If the EEOC doesn't find evidence that your employer discrimination against you, they will issue a Dismissal and Notice of Rights, also known as a Right to Sue letter. If you get this letter, you can still file a civil action in federal court within 90 days.
You should hire an experienced employment attorney, with experince with ADA violations.

BvIA listed what can happen at that point

It could take a year or more to get the parties together for a deposition. And, while there should not be a up front fee for a WC case, there will be a cost involved for you to find an attorney to take this/EEOC case...and it could be a substantial amount... depositions alone could cost in the neighborhood of $300/hr...plus the court reporter. $2000 for a depostion would not be unheard of.

BvIA: Here is a very friendly correction: FEHA stands for Fair Employment and Housing Act. The DFEH (Department of Fair Employment and Housing) is the state agency that investigates Employment and Housing Complaints.

I hope this information helps. Please let me know if something I have posted is unclear and not helpful and I can clarify and/or provide more information.

I realize this is a very long post for a first timer. This is because this topic is depends on many variables, depending on person's situation.

Wishing you a successful resolution

[maccadave]

Beth, thanks for the info and the link. I hope your case works out for you.

Dave

[maccadave]

Did you your complaint with the Field Office of the Federal EEOC? There is a District Office in Memphis and a field office in Nashvile. Or Does TN it's own version of Equal Employment Opportunity?

Thanks for all of the info, Loki. I filed my complaint with the District Office in Memphis. I will check into the ADA thing.
Thanks again!

Dave