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  1. #1
    Join Date
    Jun 2009
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    1

    Default Fired with Open Workmans Comp Claim

    My workers compensation claim was made in the State of: Indiana.

    I was terminated from my job while i had an open workman's comp claim. The following day the workman's comp claim company that my work had gone through, started trying to fight the claim.
    my question is on the legality of the situation.

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,943

    Default Re: Fired with Open Workmans Comp Claim

    I was terminated from my job while i had an open workman's comp claim.
    Ok... nothing says you can't be fired/laid off. Filing a claim doesn't provide job security.
    The following day the workman's comp claim company that my work had gone through, started trying to fight the claim.
    Probably coincidence... the IC has a period of time to investigate the claim.... and accept as compensable, or deny it.
    If there is a denial, you'll have to intitate the dispute resolution process...eventually there would be a hearing with a judge on the matter...have you consulted with an atty who does comp.?

    my question is on the legality of the situation.
    Very few atty's here. All you can expect from a message board is 'opinion' of other IW's through their experience, and/or research on the issues presented.

    Legal advise should come from an attorney...which you no doubt will be in need of.

  3. #3
    Join Date
    Oct 2006
    Posts
    9,078

    Default Re: Fired with Open Workmans Comp Claim

    having a claim does not give you immunity from termination.

  4. #4
    Join Date
    May 2008
    Location
    kansas
    Posts
    214

    Default Re: Fired with Open Workmans Comp Claim

    what spirtgirl said may be true, but what .sh said is also really true. i speak from experience. i was injured back in 06/08 and within a month or 2 i was fired, well let me explain. i was injured so bad that it kept me from going back to work for a year. in fact tommorow will be a year, anyway, i reached my mmi, checks stopped, and called my lawyer to ask, ok now what. he said go call your former er and see if they have a job for you. I 1st called them, and when i did they told me that 1-i no longer had a job there and that there was no work of any kind avail for me and 2- to call hr of the company and let them know that i was avail. and ready to come back to work, well needless to say, they never called me back, so my lawyer told me to write a letter to both my er and hr. so i did. no response. i cant go back to the type of work that i did before, so i have since changed careers. unfortunatly the new job that i have(and that was just by luck in todays world) was 10 bucks less an hour than what i was makeiing for my accident

    so i called my lawyer and he told me that we could go after them for ptd up to the max allowed by our state for the difference in pay. i am awaitiing the result.

    so if you are ready to go back to work and you dont have a job with your former er, let your attorney know and see whats avail. for you

    if you havent reached mmi yet, still let him know whats going on. your attorney is there to represent you and advise you. so see what he has to say.

    good luck, and keep us updated. this thing seems to be more and more common especially in todays econemy

  5. #5
    Join Date
    Aug 2008
    Location
    west side
    Posts
    231

    Default Re: Fired with Open Workmans Comp Claim

    If they want to they'll find a reason to dump you.

  6. #6
    Join Date
    May 2009
    Posts
    10

    Default Re: Fired with Open Workmans Comp Claim

    Does anyone know if while on wc leave do you have to file for FMLA while your off??thanks for anyone's help

  7. #7
    Join Date
    May 2008
    Location
    kansas
    Posts
    214

    Default Re: Fired with Open Workmans Comp Claim

    that im not sure of. if you havent been there at least a year or 2 cant remember the time frame, but i dont think that your protected under the flma while on w/c. i believe thats a whole nother ball game, i may be wrong, but i think that im right. im sure there are a couple of others like BiVA, or .sh should know the answer to that one.

  8. #8
    Join Date
    Jun 2008
    Posts
    64

    Default Re: Fired with Open Workmans Comp Claim

    Quote Quoting jakehunter View Post
    Does anyone know if while on wc leave do you have to file for FMLA while your off??thanks for anyone's help
    If the treating Doctor has certified that you are not available for Full time or even "light" duty ( light duty is a different matter) and you have not reached MMI there is absolutely no reason to file for FMLA leave.

    They are two very different uses of legally entitled time away from work. To allow the employer to count time off due to injury under FMLA would completely dissolve any rights you were supposed to have yearly under the act.

    What you can do however is if they declare you MMI , and you disagree , you could then file for FMLA leave and they can't fire you but they also don't have to pay you for the 12 weeks you are entitled AND you must be careful in how you word your request for FMLA leave.

    It must be a situation covered Under the act. Care of a Newborn/ Family member etc.

  9. #9
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,943

    Default Re: Fired with Open Workmans Comp Claim

    If the treating Doctor has certified that you are not available for Full time or even "light" duty ( light duty is a different matter) and you have not reached MMI there is absolutely no reason to file for FMLA leave.
    Filing for FMLA may not be up to the IW.
    If the ER notifies you of your elgibility for FMLA leave, in writing, then they can run the WC leave concurrently with FMLA.
    In order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the WC leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement. The notice to the employee must detail the specific obligations of the employee while on FMLA leave and explain the consequences of a failure to meet these obligations. Most employers use the Department of Labor’s Form WH-381 to comply with these notice requirements. If the employer does not provide the notice, it cannot count the WC leave towards the 12-week FMLA entitlement. Therefore, the employee may be entitled to an additional 12 weeks of FMLA leave at a later date.
    There can be much confusion with the overlap of ADA/FMLA/WC rules...
    When is a WC injury covered under the FMLA?

    If the employee is eligible for leave under the FMLA and the injury is considered a "serious health condition," the WC leave should be treated under the FMLA. The FMLA defines serious health condition broadly to include any "illness, injury, impairment, or physical or mental condition that involves" either inpatient care or continuing treatment by a health care provider. The statute does not distinguish between work-related and nonwork-related injuries. Thus, any on-the-job injury that requires an employee to take leave to seek inpatient care or continuing treatment likely will be covered by the FMLA.
    Answers to these questions....
    1. How are leaves covered under the FMLA and workers’ compensation statutes and how much time off is required?
    2. When is a WC injury covered under the FMLA?
    3. Should WC leaves be treated separately from other types of leaves?
    4. Should the employer give the employee any special notification under the FMLA?
    5. Does an employer have to pay for health insurance for an employee on WC leave?
    6. Can an employee on WC leave be required to use vacation or sicK leave?
    7. If the employee is released to light duty, can he be required to return to work?
    8. Does the employer have to reinstate an employee returning from a WC leave?
    Prevent Legal Headaches: Count WC Leave as FMLA

    can be found here http://www.ppspublishers.com/articles/fmla.htm.
    Even though the site is geared to ER's... it's valuable information for EE/IW's so you know what to expect.

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