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  1. #1
    Join Date
    Sep 2007
    Posts
    3

    Default Fired After 4 Months on Workers Comp

    I have noticed there is a few similar thread on other "state" posts but was curious about this one.
    My case as follows:
    During the last big storm here in NM i was injured while at a job site the company picked up for a few weeks. The last day i was there it had snowed really bad the night before, i had almost called in because i was barely not able to get out of my driveway (should have taken the hint). I arrived early as always and parked near the front of the call center. i had noticed 2 employees shoveling the walkway and wondered why since most of the roads were shut down that early and saw no reason that 600+ employees would show up to a call center that wasn't to open. Of course they opened anyway.. over half the employees called in but the few that showed obviously had difficulty driving and walking to their areas since the parking lot wasn't "shoveled". As i was helping an older lady from her car to the sidewalk i had slipped and fell "banging" my shin. I hurt like i was kicked there and thought nothing more of it. i got up and finished getting her and a few of her things to the doors and sat at a desk and made a note to myself about the incident. A half hour or so passed and i felt me leg hurt worse as the minutes went by. i remember excusing myself from the other employees i was talking to and went tot the bathroom and my leg felt wrong. I noticed that there was area just below my knee and to the right side or the leg was swollen considerably. At this point i was really concerned. I called in to the main office and got the messaging service....Mr. ___ was paged. 30 minutes went by and again i called..same thing. Long story short on the injury it took them 3 hours or so to finally in not so many word to "take off". at this time i drove left footed to a friend to take me to the hospital..nothing broken, Severe contusion, was the prognosis. it took 3 months for my leg's swelling and color to go down and to this day i have a bruise and the doctor cant find a thing wrong that is causing the pain.
    I was fired after going back to work for two 12 hour shifts at a site that was nothing more than sitting all night. Compared to my normal of driving/walking 10 hours shifts. but before i was fired i was offered a position that they said went along with my restrictions (not true, but i was happy to go back to work) i had to refuse the position because of my kids, i never would have been able to see them. after a week i got a letter in the mail stating "the boss" accepted my resignation. i signed no resignation. i called my boss he said continue to the site agreed upon. after the 2nd shift i was fired 3 days later (3on - 4off schedule). i was up until 3 weeks ago seen by a DR. with the same restrictions/medications at the 1st of the year. Unemployment has denied me benefits and i settled with the IC for so little because i have no money and my savings was gone long ago because they stopped payments when i went back to work at the end of April.

    Still cant find work that i can do that doesn't require F/T standing or lifting. i have tried everything and i am sick of this "fire-at-will" state. I'm afraid to try and go back in the same field again because constant walking and i cant drive because of the muscle not functioning right.

    ANY HELP?? Can i sue for wrongful termination even though DOL side with the employer even after 1 appeal? (don't understand that either). Is there a way to see the ALJ at a hearing instead of on the %$&^ phone?

    Sorry its so long no one seems to listen to what i say, just look at the leg and see nothings wrong with it but a quarter sized bruise.

  2. #2
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,923

    Default Re: Fired after 4 months on WC

    When they offered you employment, albeit a shift that wasn't compatible with your life and seeing your kids, they in essence fulfilled their part. What did this position consist of? Did you turn down the offer of employment for the position they presented you with?

    "I was fired after going back to work for two 12 hour shifts at a site that was nothing more than sitting all night. Compared to my normal of driving/walking 10 hours shifts. but before i was fired i was offered a position that they said went along with my restrictions (not true, but i was happy to go back to work) i had to refuse the position because of my kids, i never would have been able to see them. after a week i got a letter in the mail stating "the boss" accepted my resignation. i signed no resignation. i called my boss he said continue to the site agreed upon. after the 2nd shift i was fired 3 days later (3on - 4off schedule)."

    What was the reason you were fired from this position? I am somewhat inclined to believe that they used a legal basis for the termination as you say you were denied unemployment benefits. Wrongful termination is defined as being terminated for discrimination of a protected status, age, race, religion, gender, disability, etc... Most people do not understand that wrongful termination is not based on the employer not having cause to fire an employee. In all "at will" states the employer can terminate for any reason or no reason at all, so long as the basis for the termination does not breach the anti discrimination laws of the different protected classes of people.

    You have already settled with the IC so there is likely little if anything you can do there. As far as the "fire at will", 49 of the 50 United States follow the "at will" doctrine. Montana is the only state that is not an "at will" employment state. Some states such as CA do have some state labor laws that are more favorable to the employee than many other states or the federal labor laws. For the most part the majority of the states follow the federal labor laws which center more around when you have to be paid for work done and overtime requirements. Little to no federal laws exist for job protection and needed a reason to terminate, for the most part.

    I recommend you try to find work that is within your doctor recommended restrictions, (you never did state what exactly is wrong with your leg nor indicate what if any restrictions you still have), with union protection (that comes along with a collective bargaining agreement, CBA), and or something that involves an employment contract clearly outlining the conditions of your employment and what will or will not constitute grounds for termination. An employment contract or CBA will give you some protection from the "employment at will" doctrine followed by 49 or the 50 states. Or you could always more to Montana .

    I'm sorry but I see no basis for a lawsuit for your termination. Others may come along that do see a valid reason to bring suit against your ex-employer. Good luck to you.

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


    Take Care and Be Well.

  3. #3
    Join Date
    Sep 2007
    Posts
    3

    Default Re: Fired after 4 months on WC

    as stated in my letter: 04/30/2007
    "Effestive immediately your employment with this company is terminated. Due to your limited work ability we do not have a post that will accomodate your light duty status......."

  4. #4
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,923

    Default Re: Fired after 4 months on WC

    Regoris, have you at any time given written notice to the employer that you want to invoke your rights to the "interactive process"? This is where you meet with the employer and together determine what if any reasonable accommodations can be made to get you back to work. They will not offer to do this if you do not ask them to. They have a duty to offer a reasonable accommodation for you to return to your previous position or to find another position for you with or with our reasonable accommodation. You must otherwise be qualified to do the essential functions of any job that is available.

    I am still inclined to think that because you turned down a position due to personal reasons that they have met their burden of attempting to return you to work. You are always free to revisit the issue and or find an attorney that might be able to assist you.

    Good Luck,

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


    Take Care and Be Well.

  5. #5
    Join Date
    Sep 2007
    Posts
    3

    Default Re: Fired after 4 months on WC

    Quote Quoting SteelMagnolia View Post
    Regoris, have you at any time given written notice to the employer that you want to invoke your rights to the "interactive process"? This is where you meet with the employer and together determine what if any reasonable accommodations can be made to get you back to work. They will not offer to do this if you do not ask them to. They have a duty to offer a reasonable accommodation for you to return to your previous position or to find another position for you with or with our reasonable accommodation. You must otherwise be qualified to do the essential functions of any job that is available.

    I am still inclined to think that because you turned down a position due to personal reasons that they have met their burden of attempting to return you to work. You are always free to revisit the issue and or find an attorney that might be able to assist you.

    Good Luck,

    Steel
    No. All i was given was a paper stating that there was a position that met my medical requirements for me to take. BTW when i started the job i was very specific about not working on a specific day and i made sure to point i out in the interview and on the application..I was told there was no problem. that was not the only position available leading me to believe this was all a domino effect to get me out of the company.

  6. #6
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Fired after 4 months on WC

    Regoris, what was the reason that you could not be available on a certain day? Doctor appointment/ physical therapy? Your kids or both? How are OTHER employees treated, who have made it known UPON HIRING that THEY could not be available to work a certain shift or a certain day? If the Employer is accomadating them, then it doesn't look "to good" if they are "singling" you out on this issue AFTER you have filed a WC claim....

    The duty is on the Employer to prove that "reasonable accomodation" would impose an UNDUE HARDSHIP on THEM.

    Without having engaged in the "interactive process" pursuant to FEHA/ADA laws, they are acting "unilaterally" in deciding that they can NOT "reasonably accomodate" your work restrictions, or even making a GOOD FAITH EFFORT to try to see if there is ANOTHER job that you can perform the essential job duties with reasonable accomodation.

    You need to get all your documentation in order, and consult with SEVERAL experienced FEHA/ADA attorneys, and you also call your local EEOC office for further information and guidance concerning your situation.
    Last edited by Charles Stevens; 09-23-2007 at 11:09 AM.

  7. #7
    Join Date
    Apr 2007
    Location
    cincinnati,ohio
    Posts
    761

    Default Re: Fired after 4 months on WC

    company i was injured at offered me a job knowing i could not or would not take, it helped them get out of paying due to me refusing to return to work for them. there was nothing i could do about it. i had proof of them doing me wrong, but it was useless. i just moved on with my life. very hard to sue a company even with proof. but do not back down, stand your ground.

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