Monday, December 27, 2010

"File a workers' comp claim and your fired!"

New potential client called today, worried that he'd be "fired" if an industrial claim was commenced.  I told the victim of this typical employer style boogie-man threat, that I was sorry, since he only had a few days of work left.  "What?!" the guy asked.  "But I have not filed a claim, and they don't know I'm talking to a lawyer on the phone!!!" 

The potential client, lets call him "Bob", had been injured in the normal course of his job lifting heavy stuff.  A bunch of co-workers saw the incident, and of course critizized him for being such a wimp for complaining about back pain. Nontheless, the employer sent him to the industrial clinic which, unbeknown to Bob or the employer, actually lit the fuse.  All it takes to start a workers' compensation claim is to get hurt on the job.

Back to Bob: the industrial clinic (U.S. Healthworks) diagnosed the injury as an ordinary sprain/strain.  Fine and dandy, they sent him back to work, and that was that.  Bob didn't want to make waves by "filing a claim" or certainly not increase the stakes by hiring an attorney.  But based on the facts surrounding Bob's situation, he had a workers comp claim whether he liked it or not.  By getting hurt on the job and getting medical treatment, according to the laws governing workers comp, enough facts had lead to the presumption of a compensable workers compensation claim for Bob.  Even if Bob didn't think so...and so goes the dance between the consumer and employer/management, to wit: workers not wanting to lose their job due to an injury and employers wanting to keep their insurance premiums down by under reporting the frequency of claims.  This happens all the time and insurance companies profit from the unnatural pressure applied to workers. 

Check out the minimum requirements for comp benefits:
I always go to the Director of Industrial Relations when needing a quick FAQ answered.

Even if employers don't actually announce it, popular belief is that an employer will fire you for filing a claim.    But significant rights may be lost if the injured worker avoids proper medical treatment.  So if you want to play ball with your boss, don't "file a claim"; but make sure your job refers you to medical treatment.  If they won't make the referral, see your own doctor and give the report to HR.  Insurance companies like to stigmatize the notion of making money, even from a legitimate industrial claim.  But in reality, workers' compensation benefits are automatic, whether a "claim" is made or not, as long as there is some medical evidence of an injury or illness that occurred or got worse on the job.

And, therefore, if it were true that employers fired people for making claims, employers would never have enough staff to get things done.  If an employer wanted to scare employees, they should more succinctly an accurately state the threat: "if you attempt to learn or take advantage of the rights surrounding an industrial injury so as to not get screwed by our insurance carrier, file a comp claim or hire a lawyer."

The good news for an injured worker is that the statute of limitations for workers' compensation benefits is tolled once medical treatment is provided on an industrial basis.  So even if the employee waits a long time to actually seek permanent disability indemnity money or medical treatment in the future as a result of an injury, the claim is not lost by waiting.  With the caveat that medical treatment has to have been provided by the employer for work related injuries.  Waiting to figure out one's rights is not advisable.  Just pick up a phone or go on line to look for help.

An employer that actively participates in punishing you or firing you for having a job injury, for filing a claim, or testifying in another person's workers' compensation case (Labor Code section 132a.)

Calling a lawyer to at least talk about the options is highly recommended.  And ask to speak to a lawyer, don't get advice from a receptionist or paralegal at first.

We are happy to discuss your case to see if we can help.

The Harmon Firm: consumer lawyers focusing on personal injuries, business disputes and Chapter 7 bankruptcy.

James Harmon

(714) 558-9729

Subscribe to Blog by Email
Orange County Office
2107 North Broadway, Suite 102
Santa Ana, California 92706
Los Angeles Office
4017 Long Beach Blvd
Long Beach CA 90807

No comments:

Post a Comment