Page 1 of 3 123 LastLast
Results 1 to 10 of 28
  1. #1
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Smile FMLA/WC Slight Tear in the Meniscus

    Hello,

    I am new to this forum so forgive me if this question has been posted before.

    I was injured on the job and have been out of work since 08/14/09. When I originally found out that I would be out for a week I contacted my Administrator and advised her of my work status. My Administrator advised me to call the main office and ask if I need to fill out the FMLA papers. She referred me to the Department Adminstrative Assistant who was unsure of what to do. The AA stated that she had never come about this situation with WC and she would need to call a specific person in HR to verify. This was about 2:00 pm on 08/14/09. The AA called me back at 4:30 pm on 08/14/09 to say that she left two messages for the HR rep to call her back, but she did not think that WC applied to FMLA. If there are any changes, she would call me back. I called my Adminstrator back to inform her of the information that was given to me by the Department AA and she stated that I had at least attempted to verify if this was considered FMLA, and that I should be fine. Needless to say I never heard from the AA again. However, I continued to call my supervisor after every visit to update her on my current work status, which continued to be out of work.

    After my visit in October, the Orthopedic docotor recommended that I continue with PT and remain out of work until the follow up in November. Two days after calling my supervisor, I received a letter from my employer(the same HR rep that never called the AA back in Aug), stating that my WC absences are designated as Medical Leave of Absence, and will run concurrent with the FMLA statute. The letter went on to say that my WC claim will be updated on a bi-weekly basis by Risks and Claims Department. Under the WC Program my health insurance, life insurance, and retirement benefits will not be affected and will remain in force while I am receiving authorized medical care. I was to call the HR rep if I had any questions.

    Now, I do have an attorney and ran this by him and he said that he didn't think that my employer could do this. However, this is not his area of expertise and he is going to refer me to a Labor Attorney who is a friend of his. I do work for an employer who is considered to be a State of NJ employer, and I am also a Union member. Through research on the Internet, I have found that an employer can run FMLA concurrent with WC if it is stated in their handbook. They also have to notify the employee in writing of how long the leave is designated for, how much time they have left, when they are expected to return, and which way the leave will run(rolling year, calender year, fiscal year,etc). Okay so I was out for major surgery earlier this year for eight weeks on an unrelated medical situation, which would leave four weeks left for FMLA. My employee handbook only states that intermittent FMLA time is on a rolling basis, nothing about straight 12 week FMLA.

    My questions are:

    1) Can my employer make the FMLA retroactive back to 08/14/09?

    2) If not, would I still only have four weeks left due to the FMLA taken earlier in the year?

    3) The letter from the employer did not designate how the time would run and was not complete with the information of when I was to return and what was expected of me. Also, there was no information attached to it(FMLA paperwork), it was just a one page letter. Does this make the leave valid at this point?

    4) If the doctor is seeing me on a monthly basis, and the letter from my employer states that my claim will be updated bi-weekly, will I be out of compliance if I just call after my appointments?


    5) As a Union employee, can they terminate if I do not return after the twelve weeks or whatever FMLA time I have left?




    Note: The physical therapy has not helped and in fact my knee is feeling worse. Also my right knee is starting to hurt due to the overcompensating for the left knee injury. My next course of action will probably be surgery according to previous talks with treating doctor.


    Sorry for the dissertation, but I just wanted to be thorough for you to understand my questions. Believe me, there is more, but for fear that I will reveal my identity, I omitted the rest of the story.

    Thanks for any help you can offer.

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    17,941

    Default Re: Fmla/WC Slight Tear in the Meniscus

    My questions are:

    1) Can my employer make the FMLA retroactive back to 08/14/09?

    2) If not, would I still only have four weeks left due to the FMLA taken earlier in the year?

    3) The letter from the employer did not designate how the time would run and was not complete with the information of when I was to return and what was expected of me. Also, there was no information attached to it(FMLA paperwork), it was just a one page letter. Does this make the leave valid at this point?

    4) If the doctor is seeing me on a monthly basis, and the letter from my employer states that my claim will be updated bi-weekly, will I be out of compliance if I just call after my appointments?


    5) As a Union employee, can they terminate if I do not return after the twelve weeks or whatever FMLA time I have left?
    I will admit I did not read your entire post.
    1) Your ER can run FMLA concurrently with your WC leave, BUT, they must notify you in writing of the intent to do so. The beginning date for FMLA is the date you request the leave, or the date the ER notifies you. Info on FMLA/WC/EEOC overlaps is here http://www.ppspublishers.com/articles/fmla.htm
    Should the employer give the employee any special notification under the 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.
    2) You can have intermittent leave under FMLA. You only have 12 weeks though for the year, then you would have to RTW and accru again.

    3) Doens't matter what the notice contained... you have been notified of your FMLA running concurrently with the WC leave. And the date of notice should be the first day of FMLA.

    4) Your ER can update the FMLA leave, your Dr monthly report would be sufficient to do that. The ER however is entitled to examination at reasonable interval.

    5) Union contracts govern what the ER/EE have agreed to. FMLA leave generally isn't subject to a union agreement, what happens before/after would be.

    More on FMLA here http://www.laborandemploymentlawblog...medical_leave/

    Besides the info at the above sites, listed to your AA's... message board information is opinion, and not a substitute for valid legal advice.

  3. #3
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Default Re: Fmla/WC Slight Tear in the Meniscus

    Thank you BvIA for the information. The links were helpful.

  4. #4
    Join Date
    Jan 2007
    Location
    PA, but worked in NJ
    Posts
    822

    Default Re: Fmla/WC Slight Tear in the Meniscus

    Hi It makes no difference to us if this question had been posted before as each case may have circumstances that may change the answers to the same questions asked.

    In regards to your last paragraph it would appear that you are consulting with the wrong attorney in this matter. YES FMLA IN MANY CASES CAN WORK HAND IN HAND WITH A WORK COMP CLAIM. HOWEVER IN EXTREMELY RARE CIRCUMSTANCES SUCH AS AN EMPLOYER CONTESTED INJURY THAT THE EMPLOYER SAYS IS NOT WORK RELATED THE FMLA CAN BE A DOUBLE EDGED SWORD SO YOU WILL WANT TO DISCUSS THE SIGNING OF THIS DOCUMENT WITH A WC "EXPERT" IF THERE IS ANY POSSIBILITY OF YOUR WORK INJURY TURNING OUT TO BE A TOTALLY DISABLING CONDITION. MEANING YOU ARE UNABLE TO PERFORM ANY SUBSTANTIAL WORK TO SUPPORT SELF IN THE FUTURE.

    Let me try to just answer your questions as this case seems to involve multiple injuries/illnesses and that alone can complicate this. First your work agreement/ Union contract supercedes any WC rules/ providing the act is lawful in the first place, SO SITES WITH GENERAL INFO MAY BE MISLEADING AS YOUR WORK AGREEMENT WILL NOT BE CONSIDERED ON GENERAL INFO SITES!!

    1) Can my employer make the FMLA retroactive back to 08/14/09? YES, YES, YES, PROVIDING THE REQUEST WAS WRITTEN WITHIN YOUR WORK AGREEMENT GUIDELINES.

    2) If not, would I still only have four weeks left due to the FMLA taken earlier in the year? IN NJ YOUR ARE PERMITTED UP TO 12 WEEKS OF FMLA EACH CALENDAR YEAR,AFTER ALL SICK TIME AND VACATION TIME HAS BEEN EXHAUSTED FIRST SOME CALL THIS "PTO TIME". THIS SHOULD BE SPELLED OUT THIS WAY IN YOUR UNION HANDBOOK/CONTRACT. THIS COULD POSSIBLE BY WHAT IS NEEDING MONITORED BEFORE THIS CASE FALLS UNDER COMPENSATION UNDER NJWC?? "The letter went on to say that my WC claim will be updated on a bi-weekly basis by Risks and Claims Department".

    3) The letter from the employer did not designate how the time would run and was not complete with the information of when I was to return and what was expected of me. Also, there was no information attached to it(FMLA paperwork), it was just a one page letter. Does this make the leave valid at this point? YES, IF THE PAGE YOU SIGNED WAS THE REQUEST FOR FMLA

    4) If the doctor is seeing me on a monthly basis, and the letter from my employer states that my claim will be updated bi-weekly, will I be out of compliance if I just call after my appointments? i DONT THINK YOU WILL BE.


    5) As a Union employee, can they terminate if I do not return after the twelve weeks or whatever FMLA time I have left? YES THEY MAY. IF YOUR UNION AGREEMENT DOES NOT EXPLAIN THIS IS GREAT DETAIL THE STATE MIN WILL APPLY WHICH THE ANSWER IS YES YOU CAN BE TERMINATED.

    YOU HAVE MANY VARIABLE AS WELL AS UNKNOWN SITUATIONS GOING ON HERE, MOSTLY WHAT THE NATURE OF ALL THE INJURIES ARE, AND THE FACTS OF YOUR WORK AGREEMENT AS THEY RELATE TO YOUR WORK INJURY BENEFITS.

    IT IS HIGHLY ADVISABLE TO CONTACT YOUR SHOP STEWARD TO GET A LAYMAN'S EXPLANATION OF YOUR WORK AGREEMENT AS FAR AS YOUR BENEFITS ARE CONCERNED.

    I HOPE THIS WAS HELPFUL. IT IS MOST DIFFICULT TO FULLY ANSWER WITHOUT ALL KNOWN FACTS. YOU SEEM TO BE FAIRLY INTELLIGENT AND YOU KNOWING MOST OF THE FACTS CAN AT LEAST SEE A "RED FLAG" SITUATION THAT WILL NEED A MORE THROUGH VENTING. IF THAT BE THE CASE i HOPE YOU WILL COME BACK AS THERE ARE A FEW WHO DO REPEATEDLY OFFER GREAT POINTS.

    GOOD LUCK AND WISHING YOU A SPEEDY RECOVERY

    BUG

  5. #5
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Default Re: Fmla/WC Slight Tear in the Meniscus

    Hi bugmann,

    Thanks for your reply, you are most knowledgeable. I never signed any FMLA paperwork for this injury. The injury(slight tear in the meniscus) occurred at the end of July 09 and I have been out of work since mid Aug 09. The FMLA time taken earlier this year was unrelated to this incident. HR just sent a one page letter to me out of the clear blue sky probably to try and protect themselves.

    In regards to the attorney, they have dealt with many State employees and their background states that they have been in WC for many years. I have to say that I do trust them, however I will keep alert to any issues that may arise.

    Thank you for the advice on contacting the Union Shopsteward as to complicate matters more, I went to the doctor yesterday and he is putting me off work for another month. The doctor is has stopped the PT for now and also gave me another cortisone injection yesterday to make a total of three now, two from another doctor and one from him. He is treating me conservatively and would like to make surgery the absolute last possible resort, as I have many health problems and almost lost my life in surgery earlier in the year.

    I hope all is well with you and will keep you guys updated on my situation.

  6. #6
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Default Re: FMLA/WC Slight Tear in the Meniscus

    Update:

    Okay, yesterday I received a call from the CA stating that the doctor has returned me to light duty and I am to report to work today. I advised her that this was news to me because as of my last appointment, the doctor gave me a letter to remain off work and return in one month for a follow up, and I was to call in two weeks to advise of how the injection had worked out. She advised me that she called the doctors office on 11/12/09, however he was on vacation. The doctor supposedly checked his messages on Sunday, 11/15/09 and called the CA back to say that I could return to work on 11/19/09. I had to ask her were there any restrictions in which her reply was light duty with no kneeling, walking at 30-40 minute intervals. These restrictions don't make sense to me as my job does not entail any walking for long periods. I advised her that both my knees were no swollen as the right leg was affected by overuse syndrome(dr's words @ last visit). I was going to call the doctor today as I knew he was on vacation and was returning today. The CA advised me that this is my problem and that if I could not return, I would have to use my own sick or personal time because they were only paying me through 11/18/09.


    I immediately hung up and called the doctors office to be seen. I was told, as I knew, that my doctor was on vacation until tomorrow but I could see the Physicians Assistant. I go in for the appointment with the PA and she is about 9 months pregnant and looking miserable. She has never seen me before and apparently did not read the records to familiarize herself with my case. She barely touched my leg and said she did not feel any swelling(even though you can visibly see the swelling). She also was touching undeneath the kneecap when the swelling is on the side and above the kneecap. The PA began to tell me that my injury was a chondromalacia patella which she says is a knee sprain and also blames it on weight. I asked her about the tear in the meniscus and she stated that it is small and is probably old, it has nothing to do with my knee pain. She went on to say that no one has ever been out over three weeks for this type of injury and they can no longer justify me being out of work. The PA gives me some samples of Voltaren Gel 1% topical and says with an attitude:"this should not have an affect all those medicines you are taking, and you should be able to take this as it is not ingested like the rest of the pain medicine you have tried!" Before I left the doctors office I was experiences burning in the area where the solution was applied but the receptionist said that she went in the back to check with the doctor, and this was normal. About an hour and a half later I started experiencing chest pains and shortness of breath. This continued for several more hours and I went to the emergency room. Needless to say I was admitted overnight for observation and released this evening. They could not pin point whether or not it was from the Voltaren Gel but if you read the side effects, people with breathing problems should use caution. I guess the PA didn't realize by reading my history that I have COPD! I have a note from the hospital for today and when I called my PCP, he told me to stay home tomorrow, and come see him Monday. I did call my ER to inform them at every step.


    My questions are:


    1) If the WC doctor released me to light duty but I never even got a chance to return before I had unrelated medical problems, will I still be paid TTD payments?

    2) I never had any problems ambulating before my injury regardless of my weight, so doesn't the doctor have to put me back to where I was before the injury or at least declare me at MMI?


    3) If they can no longer justify me being out of work for this injury, then why didn't the head doctor of the office who always sees me, state this at my last visit? Should I be checking with him now that he is back from vacation?


  7. #7
    Join Date
    Jan 2007
    Location
    PA, but worked in NJ
    Posts
    822

    Default Re: FMLA/WC Slight Tear in the Meniscus

    Hi Brown Eyes,

    The restrictions are to protect you from re-injury as well as the Dr from any recourse (which under WC is extremely limited).

    I would not be surprised if your employer called this WCDR to get your work status "updated" However one would think a Dr would need to re examine you before changing your status, but not true in NJWC. heck a Dr who NEVER examined you could change your work status!!!! This is scary as well as hazardous!!!!

    To answer your questions:\

    1) Once the Dr releases you to light duty, and your employer has light duty work then no you are not eligible for NJWC TTD.

    2) I really dont understand what you mean "so doesn't the doctor have to put me back to where I was before the injury" it may not be possible for you to get back to where you were before this injury this is where you are compensated by rating of impairment. If you got back to 100% you would not have any measurable amount of impairment thus no compensation at the end of your case?? The Dr may want to see how you do at light duty before releasing you or declaring MMI.

    3) What a huge load of _____ this is, "can no longer justify me being out of work for this injury" simply put the ins carrier or your employer doesn't want to continue your TTD. Who knows why some Drs do what they do. maybe the Dr couldn't look you in the eye and tell you the carrier doesn't want to keep paying?? You can "try" to see this Dr again but your appointment will need the carrier's or your employers Ok before you are seen. I am in no way a Dr nor do I know your medical history but I think it would be a long shot to say that Voltaren Gel caused your this chest pains and shortness of breath, in any case you did the right thing by going to the emergency room and follow up with your PC.

    I hope you are feeling better today?? Please take care.

    BUG

  8. #8
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Default Re: FMLA/WC Slight Tear in the Meniscus

    Hi bugmann,

    Thanks for your reply and concern, I hope all is well with you. I actually am feeling better with no chest pains today, however the blood pressure is up and still having shortness of breath.

    Quote Quoting bugmann View Post
    The restrictions are to protect you from re-injury as well as the Dr from any recourse (which under WC is extremely limited).

    I didn't mind the restrictions, just wanted them to be tailored for my job as the restrictions that were originally given(walking in 30-40 minute intervals), had nothing to do with my job description. At least I accomplished that when I saw the PA because otherwise it would have been a futile visit.

    Quote Quoting bugmann View Post
    I would not be surprised if your employer called this WCDR to get your work status "updated"
    I actually have to agree with you because one of my co-workers from another office has been coming to my office once a week to cover for me. She is having surgery this Monday and will be out of work until the first or second week of January. My direct supervisor is very sneaky and underhanded and used unethical ways of obtaining information before for work so I know she is capable of pulling this off. Shucks, she never believed me from the beginning about my injury and was very po'ed when they accepted my claim with no problem.

    Quote Quoting bugmann View Post
    2) I really dont understand what you mean "so doesn't the doctor have to put me back to where I was before the injury" it may not be possible for you to get back to where you were before this injury this is where you are compensated by rating of impairment. If you got back to 100% you would not have any measurable amount of impairment thus no compensation at the end of your case?? The Dr may want to see how you do at light duty before releasing you or declaring MMI."

    Sorry about that, I just was frustrated because the PA made it seem like she just wanted me to go back to work and could care less whether I recovered or not. She also told me that it could take up to a year for this type of injury to
    heal. The tone of voice that she used and the irritation on her face made me feel like she was releasing me for good and could care less if I ever got any better. I'm glad my follow up on 12/10/09, which was already scheduled at my 11/05/09 visit, is with the other doctor in the office that has seen me from the beginning. I have a bone to pick with him also because I requested my records yesterday and there are some inconsistancies in statements that he says I made(ie: DOI, the fact that I smoke(never have), dates when I reported increased pain).

    I am going to request my office notes after every visit from now on. I can't wait to pick up the PT notes because I am sure that they didn't document half of the complaints of increased pain. One good thing that is in my favor is that I have a very good memory and when all else fails, I keep thorough documentation of what goes on.

    I will keep my head up knowing that a positive attitude helps you heal all the more faster.


    Good day,

    browneyedgurl

  9. #9
    Join Date
    Jan 2007
    Location
    PA, but worked in NJ
    Posts
    822

    Wink Re: FMLA/WC Slight Tear in the Meniscus

    Hey Browneyes When you request office notes do so in a manner that is consistent with ongoing medical care. For example you want to be sure that the notes from one medical provider are inline with what you have explained to the other. If they cant let you see the same provider each time you are just making sure everyone is on the same page. Now once you have them you can do what you want, but sometimes it takes a little sugar to get what you want from the WC DR.

    BUG

  10. #10
    Join Date
    Nov 2009
    Location
    NJ
    Posts
    90

    Default Re: FMLA/WC Slight Tear in the Meniscus

    Hey bug,

    Thanks for the advice. I actually picked up my notes from PT today and they were on point. All three therapists documented everything I said and when I said it. Needless to say, I was very pleased with them. As for the PA, today I picked up the notes from the visit last Wednesday. Well, the notes are all screwed up! The notes say that I am treating with a doctor for my fibromyalgia that I have never heard of and are all over the place. She is blaming all my symptoms on fibromyalgia stating I am experiencing joint pain all over. When I went to the visit, I told her I was only still have problems with my right upper limb and my neck. Also she claims to have reviewed my notes for PT but my records are being mixed up during dictation or the doctor is confusing me with another patient because her version doesn't even jive with theirs(PT). I can't imagine how that happened as I do not have a common name. I met with the lawyer today and they advised me to write everything down that was incorrect to bring it to the attention of the doctor at my next visit.

    I received a letter from my employer on Saturday stating again that my leave was considered FMLA and that I was expected to return on 11/19/09 as the doctor had released me to light duty. The letter claimed that to date they had not heard from me and that I had until 11/30/09 to contact them, otherwise it would be considered voluntary resignation as of the date of the letter(11/19/09). You can imagine my anger as I stated in an earlier post that I had left a message on my supervisors voice mail twice in the same day. On Saturday I also received a blank Medical Authorization Letter from a Case Management Company asking for me to sign it, and for permission to sit in on my appointments. This letter was also sent to my lawyer. My lawyer advised me not to sign it and told me that they had called the company to tell them that they will not grant either request at this time. The lawyer further told them that I will not be signing any blank forms, they must be filled in-in its entirety. Wow, can you believe what they were trying to pull? They could have gotten anything if I was naive enough to sign that form!

    I saw my PCP today for a follow up from the inpatient stay last Thursday and he has me out of work from 11/20/09-11/25/09, to return on 11/26/09. We do not work on Thanksgiving or the day after so I will return on 11/30/09. He increased my blood pressure medicine and added an inhaler for my COPD. I also had an x-ray of my right shoulder last Thursday and am awaiting the results from the rheumatologist. She is going to give me restrictions for my right arm, however she wants to see me again on 12/2/09 before she will write them.

    So this morning I showed my lawyer the two attempts that I made to call my employer from my cell phone last Thursday and advised them that I had left voice mails. Thank God for call logs! Then I called HR from the lawyers office and left a voice mail for the person who wrote me the letter updating my leave status and asking for a return call to clarify what needs to be done. I then proceeded to call my supervisor on her desk phone and cell phone and left a message on both. Afterwards I called her supervisor, who was the only one to answer, and was met with this: "I'm sorry I can't help you, you need to contact whoever wrote you the letter in HR." I explained that I was merely trying to reach out to someone(a live human being), that could confirm that I did call today, since they claimed that they had not heard from me. I was told by her that "she was in the middle of something right now and could not talk to me. She stated that she was not trying to be rude but she was just really busy. I was told to wait to hear from HR." My lawyer was there to witness this whole exchange over the phone just in case they try anything. This afternoon I did hear from HR and she told me that I need to fill out a new FMLA form and a LOA form. She advised me that she would mail the forms to me or I could print them off. She later e-mailed me the links(which were invaild), I had to do my own research to get them online. After some prompting, HR did tell me that if the forms were not in, I still could return on 11/30/09 with my notes from the hospital, the WC doctor, and my PCP, however I would have to get the LOA & FMLA papers in as soon as possible.

    I suspect that HR is ready to terminate me by the tone of voice from her and my supervisors, supervisor. Also my immediate supervisor was calling everytime I go to the doctor except for this last time. Hmmm.....isn't that strange? Well I always have been an exemplary employee, and I see no reason to change that now. I will remain on my P's an Q's as to give them no reason to terminate me.

    I will keep you guys posted as I continue on my journey through work comp!


    brown eyes

Similar Threads

  1. Meniscus Settlement
    By ladygolfer in forum New York
    Replies: 5
    Last Post: 11-25-2008, 08:41 PM
  2. Replies: 3
    Last Post: 10-06-2008, 02:19 PM
  3. Possible Meniscus Injury
    By dalew in forum Medical Issues
    Replies: 3
    Last Post: 09-25-2007, 11:52 AM
  4. Settlement with Very Slight Disability
    By suzp in forum Georgia
    Replies: 3
    Last Post: 08-09-2007, 01:36 PM
  5. Torn cartilage in meniscus
    By liz in forum Kansas
    Replies: 1
    Last Post: 05-27-2005, 06:33 AM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 


Find a Lawyer