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  1. #1
    Join Date
    Nov 2016
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    2

    Default Getting Fired/Laid-Off 2 Weeks After Injury Occurred

    I have a couple questions to ask.

    First: I was injured at work and little under 6 months ago. Did something to my arm, I reported it right away and went and got checked out. At first the doctor just thought it was a pulled muscle and gave me work restrictions of no use of arm until rechecked 2 weeks later. Took the first 2 days off of work because of the pain. I go back to work secretary tries to find some light work to comply with restrictions. I started doing the jobs and another employee comes bitching at me saying the inventory was already done and telling me to stop finding easy jobs to do. Long story short got into a heated argument and saying if the job was done why did the secretary tell me to come do it and why she didn't have the paperwork. Lots of names got called and I walked away heated and told the secretary what happened and went home for the day. I was told to take off until I was seen by the doctor. After seeing the doctor nothing had changed and was told to try physical therapy and kept work restrictions the same for another 2 week. Doctor said it was just tennis elbow. Went to my work gave them my work restrictions and the secretary told me they didn't have any work for me and I was being laid-off and wouldn't be coming back so basically saying I was fired. She said if I wasn't getting workman's comp that I should file should file for unemployment. And when the insurance called to make sure I tell them my work didn't have work for me with my restrictions and they laid me off because of that and it was slow season. My work told the insurance company the same thing so I would get workman's comp. I worked in the agricultural industry and in my 6 years of working there never was there a slow time specially in the middle of summer. There was jobs I could do with my restrictions easily. I could name at least 5-10 jobs I could do. So my question is, is there a case for failure to rehire even though I'm still on restrictions? I have emails saved from the secretary saying what to tell the insurance company and open a unemployment case and find a different job.

    Second question: I have complied with everything the insurance company has asked of me including seeing their independents doctor for a exam. His report stated his findings was that my injury was due to my work accident and consides with my physical medicine specialist, but suggested a mri be done for a better understand what is going on with my arm. After the mri that was just done 2 weeks ago shows I have a partial tear of the extensor tendon. Ans she is not sure if surgery can fix, surgeon will decide. My appointment is schedule for the middle of December. Is there a need to get a lawyer now for this or not?

    I'm so stressed out over all this and have lost almost everything I have worked for over the last 6 years and lost it all in 3 months. The workman comp check is barely a 1/3 of what I actually would of made each week if I never got injured. Most weeks from spring to fall I usually work 80-100 hours a week and lost out on my fall bonus which would be mid thousand and Christmas bonus of a few thousand. It all makes up somewhat of not having a life spring thru fall. Stressed out waiting for appointment with surgeon to see if it can be fixed or not. Any help would be great. The state statue if hard to fully understand. But I did learn to request to see and copy my personal file if they haven't tried to destroy it all read. They have until tomorrow for a deadline of 7 business days to comply. Any help please?

  2. #2
    Join Date
    Oct 1971
    Posts
    4,487

    Default Re: Getting Fired/Laid-Off 2 Weeks After Injury Occurred

    huk75
    So my question is, is there a case for failure to rehire even though I'm still on restrictions?
    No, Wisconsin is an "At Will" work state, meaning they can fire you for any reason.
    As long as you are under restrictions and the employer fails to accommodate for any reason, including a layoff - you are eligible for wage loss benefits.

    Wisconsin is an “employment-at-will” state, so the default contract of employment is “at will.” This means that both the employee and employer are generally free to terminate the employment relationship at any time and for any reason, as long as the reason is not illegal or violative of public policy (e.g., discriminatory).
    http://www.blr.com/HR-Employment/Sta...-in-Wisconsin#

    Is there a need to get a lawyer now for this or not?
    It's best to consult a lawyer before problems begin.
    Consult and retain a lawyer that specializes in worker compensation immediately to enforce you rights.

    Tony
    Moderator Responses are based on my personal bias, experience and research - they may not be accepted in the legal community, always consult an attorney.

  3. #3
    Join Date
    Nov 2016
    Posts
    2

    Default Re: Getting Fired/Laid-Off 2 Weeks After Injury Occurred

    I understand that, but that is employment law. Under Wisconsin State statue 102.35 under workman's comp a employer can not refuse rehire without just cause. Since they fired me 2 weeks after being injured and falsely reporting to there there workman comp insurer. It says all I have to show that I was employed at the time of injury and let go by them. That the burden shifts onto them to show reasonable cause. Unless I'm messing something reading the statue, it seems I would have a case.

  4. #4
    Join Date
    Oct 1971
    Posts
    4,487

    Default Re: Getting Fired/Laid-Off 2 Weeks After Injury Occurred

    Quote Quoting huk75 View Post
    I understand that, but that is employment law. Under Wisconsin State statue 102.35 under workman's comp a employer can not refuse rehire without just cause. Since they fired me 2 weeks after being injured and falsely reporting to there there workman comp insurer. It says all I have to show that I was employed at the time of injury and let go by them. That the burden shifts onto them to show reasonable cause. Unless I'm messing something reading the statue, it seems I would have a case.
    You must post the statute you're referencing when making statements of fact.
    That statute compliments the Employment-at-will Doctrine, it protects the employer more than the employee.
    You'll never force an employer to employ you against their will - especially in Wisconsin.

    It says all I have to show that I was employed at the time of injury and let go by them. That the burden shifts onto them to show reasonable cause.
    I don't find that exact language in the statute, there's a little more to it than that.

    The burden is on you to prove that "suitable employment is available within the employee’s physical and mental limitations," and that you have seniority.
    Good luck with that one.
    It also says "the continuance in business of the employer shall be considered" meaning the interest of the employer comes first - they'll claim it's too costly to accommodate your restrictions.

    As far as discrimination, that too will be next to impossible to prove and only the department can initiate a discrimination action - you know that ain't gonna happen.
    Trust me, these guys have all the bases covered, you live in a state that's hostile to injured workers - they'll never rule against the employer.
    Here's the statute with the relevant statements highlighted.

    102.35 Penalties.
    2)Any employer, or duly authorized agent thereof, who,without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discrimi-nates or threatens to discriminate against an employee as to the employee’s employment, shall forfeit to the state not less than $50 nor more than $500 for each offense.
    No action under this subsec-tion may be commenced except upon request of the department.

    (3)Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee’s physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addi-tion to other benefits, the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the avail-ability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
    http://docs.legis.wisconsin.gov/stat...atutes/102.pdf

    The opinions expressed in this forum are general and not meant to replace legal representation.
    You need to consult a lawyer if you're looking for a definite answer to any issue with your claim.

    Tony
    Moderator Responses are based on my personal bias, experience and research - they may not be accepted in the legal community, always consult an attorney.

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