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Thread: Filing 132(a)

  1. #1
    Join Date
    Oct 2011
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    148

    Default Filing 132(a)

    My workers compensation claim was made in the State of: CA

    I was put on paid admin leave after demanding my restrictions be met, which would mean hiring additional staff (whether they accommodated or put me on TTD). My supervisor and I had a "meeting" in his office where he angrily told me that my escalating several issues, including the work comp claims, (plural) that employees were suffering, had caused him an "unprecedented amount of scrutiny" from the other board members--his peers and partners in the business. I did indeed take these issues along with others, like salary surveys, and industry staffing standards to the new CEO, who then passed that information onto the others. I had been documenting and presenting these needs and facts to my direct supervisor for several months, as well as "limping" through my day, trying hard to stay within my work restrictions by using student interns to fill in the gaps. This was neither optimal nor long term, and when the semester ended for the college, so did the student rotations. This left me with two options: ask for help or work outside of my restrictions, leading to inability to heal or possibly furthering injury. Since my supervisor would not authorize me hiring part time or temporary help, I really had no other choice. We had a "heated discussion", words were said, and I did leave his office in an angry matter, went to the CEO and requested that further discussions with my supervisor be with her or another appropriate person present, as things were being said that I was uncomfortable with. 20 minutes later they told me to go home for the day. Once home, I received a phone call from my supervisor, telling me to take the next day off as well. Then the next day, he emailed me and told me to take the rest of the week off (total of 3.5 days, that it would be paid admin leave.) When I returned to work, I was written up for disruptive behavior. I asked my supervisor, again, and alone in his office, yet again, to observe my work restrictions, and was told he "will get to it when I have a chance." I sent him a email re-iterating our discussion, and cc'd the CEO. Another day passed, and I still had no one address my work restrictions or provide me with a plan or additional resources on how this would be done. I contacted my physician and told him my work restrictions were not being observed, he took me out of work completely. Upon my giving this information to my supervisor, I was told I was "abandoning my position and my staff" and then told that I was "refusing work". (I have emails and other documentation to support this.)

    My WC atty said talk to employment atty, they said file complaint with DFEH. DFEH says they are investigating , so now my atty is filing 132(a). I jointly filed my complaint with the EEOC as well--for discrimination of disability and retaliation. I also have information regarding another injured employee who was terminated immediately after returning from FMLA protected leave for her WC injury as well.

    What is the "burden of proof" that I have? Do many 132(a)'s have teeth, is there any other information I should consider? Such as IF the discrimination or retaliation is proven, do I settle this thru WC, or do I leave it open and have employment atty pick up??

    Just another twist in the path of this hideous journey--any thoughts or opinions are greatly appreciated.

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
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    18,045

    Default Re: 132(a)

    Actually... you don't have a "disability", until you have reached the MMI status, been rated for PD/WPI, and engage in the interactive process.
    Your ER is NOT required to monitor your activities, or restrictions...nor hire additional help to make the accommodation.
    If light duty/modified work is not available...or you can't perform the basic job function of the light duty/modified work...you simply revert to a TTD status until you can return to work.

    IMHO...you're going to face an uphill battle here... as you are the one who pushed the issue with your ER. "Disruptive"... probably. However that's not illegal. Discrimination/harrassment under 132(a)... again...IMHO, not likely, but then Im not the judge.
    Yes...132(a) is address by the WCAB judge, generally at the time the claim/case in chief settles.
    Since my supervisor would not authorize me hiring part time or temporary help,
    ER does not have to bring on additional help to make an accommodation... Even IF you were MMI and released to return to work.

    You are supposed to be off/TTD to treat and recover from your injury. If the PTP releases you to light duty...TPD/Temp Partial Disability, then your ER has the final say whether or not a job is available within your restrictions. And, your restrictions are on your daily life activities, not just your job function.

  3. #3
    Join Date
    Oct 1971
    Posts
    3,192

    Default Re: 132(a)

    See:
    http://ceo.lacounty.gov/RTW/Save/031...ode%20132a.PDF
    And
    http://www.eeoc.gov/facts/ada18.html.
    To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

  4. #4
    Join Date
    Oct 2011
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    148

    Default Re: 132(a)

    Not sure why my post needs revision??

    So what I don't get is: How is it that an EE has work restrictions, the ER doesn't address, but rather leaves the EE to oversee their own restrictions (makes sense to an extent, as we are responsible for ourselves as adults) However, shouldn't the ER ALSO be concerned about these restrictions and confirm that there is adherence so as to eliminate THEIR responsibility of further injury to the IW?? Is there no liability for them?? And if the EE requests that these restrictions be observed, and the ER doesn't respond to those requests, doesn't put the EE on TTD, doesn't accommodate, tells them to go back to the very job that injured them and the PTP restricts from, and when PTP takes the IW out of work due to these facts, the ER and IC dispute the leave and refuse to pay TTD, etc. etc. It's just a messy, messy, ugly, nasty, web..... we can all see what is happening here.... hopefully the judge will, too.

    Anyway, thanks.... I figure it is another issue that my ER will squirm out of.... The system is not for the EE, clearly, and somethings aren't worth the energy, I guess.

    The fact that "disability" as defined by ADA is only once MMI is reached, I get, but there is still retaliation, no? Anyway, just additional thought, doesn't change the fact that they will prob get away with their negative actions..... It may be hard to prove, and it may not stand, but the judge will hear it, and that may influence him with his final decisions regarding my claim in general.....
    Last edited by 1radjojo; 03-08-2012 at 08:45 AM. Reason: another thought.....

  5. #5
    Join Date
    Oct 1971
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    3,192

    Default Re: 132(a)

    Not sure why my post needs revision
    No, I meant mine did, I misunderstood your question.

    Tony
    Moderator
    We reserve the right to forbid any user from participating in this forum, and to close any user account, at any time, for any reason. In the interest of the community, this may be done without prior notice or warning.
    http://www.workerscompensationinsura...inks/index.htm

  6. #6
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    Calif
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    Default Re: 132(a)

    How is it that an EE has work restrictions, the ER doesn't address, but rather leaves the EE to oversee their own restrictions (makes sense to an extent, as we are responsible for ourselves as adults) However, shouldn't the ER ALSO be concerned about these restrictions and confirm that there is adherence so as to eliminate THEIR responsibility of further injury to the IW??
    The restrictions are on you, not your job, not your ER. If you cannot perform the basic job functions in the light duty/modified work provided, or the ER cannot provide a job within your restricitons...you go back to TTD. No one forces you to stay in a job that is outside your restrictions. You cannot force the ER to hire more EE's.

    So...you don't have a "disability" while you are actively treating/recovering from the injury.

    Discrimination/harrassment ...possibly, but the burden of proof is on the applicant. But again....you didn't have to stay there while TPD, and attempt to work outside your restrictions.

  7. #7
    Join Date
    Oct 2011
    Posts
    148

    Default Re: 132(a)

    Like I said, with interns onsite it was a bit easier to keep from doing the "busy work", I could supervise and direct, without using my arms. Once they were done with their rotation, this is when I reminded my ER that I had only 25% use of my hands infrequently during my shift, this is when it got ugly. They were okay with "free help" which accommodated my modifications, but wouldn't consider actually PAYING for help (which they don't have to do, I get that) but then they should've put me on TTD. Anyway, thanks for the information and such, have a nice day.

  8. #8
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    Calif
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    Default Re: 132(a)

    ... but then they should've put me on TTD.
    The ER would notify you that modified work is no longer available... YOU go back to your PTP and get your status changed. ER doesn't make determination of TTD, Dr/PTP does that... there must be medical reasoning to support your claim for TTD.

  9. #9
    Join Date
    Oct 2011
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    148

    Default Re: 132(a)

    We keep going back and forth with this.... LOL the thing is, I was told by the supervisor upon returning from paid admin leave, that I was to "get back on the machine", when I said "how can I do that and be in compliance with my work restrictions?" He said he would "have to think about it and get back to you, when I get a chance". I attempted to work at 25%--impossible with the staffing, so I complained again and was put off again, told PTP, he took me out, ER began disputing my injury after 9 months of treatments, work mods, etc. In other words, he said he had work for me, but it was NOT in my restrictions, there was no way---how can I only work 25% of the time when the job requires at least TWO staff members using their hands/arms 100% of the time and there was only one other tech there with me? He wanted me to continue to work and outside of my doctor's restrictions rather than say he didn't have work, which would put me on TTD and make him hire additional staff and increase his premiums with WC--which he actually voiced to me in a previous conversation (closed doors) that he had a concern about the increase in premiums.... jerk!!

  10. #10
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    Default Re: 132(a)

    We keep going back and forth with this.... LOL the thing is,
    Right. We have tossed this around... and my answers aren't going to change.
    There is a process... you file the claim, treat/recover, and return to work. When "issues" get between that process...your PTP makes the decisions...not your ER.
    You can work in a light duty/modified job within your restrictions..or you can't. Your ER can provide the accommodation...or they can't. There is no 'either/or'.
    He wanted me to continue to work and outside of my doctor's restrictions rather than say he didn't have work, which would put me on TTD and make him hire additional staff and increase his premiums with WC--which he actually voiced to me in a previous conversation (closed doors) that he had a concern about the increase in premiums.... jerk!!
    None of that has anything to do with your claim. Nothing. It's converstaion...and you engaged in it the same as your boss did. Difficult to claim harrassment/discrimination when you participated, again and again.

    IMHO... you should probably be conducting a job search, as when you are finally released to return to work... you'd have to assume it won't be with this ER.

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