FMLA/ On the verge of financial ruin!

[TXMimi]

What is the name of your state (only U.S. law)? TX

I had an OTJI at the end of April and have been unable to work. Through out most of that time I've been waiting on W/C to approve treatment. From the beginning the treating doc has stated he felt surgery would be the ony way to correct my problem and relieve my pain. I followed everything asked of me. I take the 1st available appointment so I can get the treatment I need asap so I can return to work. My FMLA is now out. I finally got an approval and appointment for my surgery, which took about 4 or 5 weeks of me just sitting and waiting. One week before my surgery the surgeon called and canceled my surgery b/c he had to leave town for family reasons. He gave me the option to wait another month for surgery or he could refer me to another surgeon. I would have to be evaluated by this new doc so he could decide if "HE" agreed surgery is the answer but if he does I could most likely be scheduled 1 week out. I am so affraid of loosing my job. All the delays are not my fault. My injury was not my fault. I had no control to speed things up any faster. Will that in any way help me keep my job? Or because my FMLA has ran out is my company completely released from keeping me on?

If I do loose my job will I qualify for unemployment until I can find a new one?What is the name of your state (only U.S. law)?

[cbg]

Unless your state specifically grants you additional protected time off for work related claims, and from what I know of Texas workers comp law I seriously doubt that it does, neither the fact that your surgeon had to reschedule the surgery nor the fact that your claim is work related automatically grants you additional FMLA-protected leave.

However, just because your employer CAN terminate your employment at the end of your FMLA does not mean that he WILL.

[commentator]

Are you receiving any money from Workman's Comp, you should be receiving payment as lost time, can't return to work because of medical restrictions? Okay, it is true you have used up your FMLA, but you have not been released by your doctor to return to work, even with restrictions...if the company elects to fire you, they'd still have to be giving you something through Workers Comp until you reach maximum medical improvement. Do you have a contact person in Worker's Comp that is handling your case? There's something funny about this scenario as you are describing it.

In order to get unemployment insurance, if terminated by the company, you would have to be at least released to light duy by your physician, and not receiving Worker's Comp. money.

[cbg]

Good point. While your employer could legally terminate your employment, benefits for the workers comp claim would NOT terminate at the same time.

[TXMimi]

Yes, I am receiving money from W/C. I have not been able to return because the doc will not release me to even do light duty. I was able to convince him to let me try and it lasted a week and made things worse. My job wont allow me to take the medications I am on at work and I am unable to tolerate the pain without them either. I have a contact at W/C. I wasn't sure, if I am terminated, if W/C would continue or if, once released from the doc, and If I am terminated would being off work for so long keep me from getting unemployement while I search for another job. I don't want to loose my job. I love my job, the location, and the company I work for but they have told me they can't gaurentee my job now. And I think there is a slight thought that I may not be released to return to the same job duties. This would devastate me.

[cbg]

As long as you have not been medically cleared to return to work, your w/c benefits will continue regardless of your employment status.

Commentator is better qualified than I to say how such a long absence from work would affect unemployment. In my state it would depend more on how much you had in the way of earnings during the part of the qualifying period you DID work, than how many weeks you worked, but every state is different.

[TXMimi]

Ok. Thanks for all the help.

[commentator]

IF your employer fires you (and above all, do not volunteer to just quit or anything like that!) you will still have your worker's comp contact on your case. You will continue to work closely with him or her and your doctors and you will be able to draw benefits from worker's comp until you have reached what they call Maximum Medical Improvement. At that time, you will be eligible to return to work. This may be at something else than what you used to do, hard to tell, but the doctor will make this decision.

But anyhow, the first you hear, phone call, letter or whatever, that your employer has fired you, taketh yourself immediately to a telephone or internet or office and FILE an unemployment claim. You will, by doing this, lock in a claim for a year with benefits based on the last 18 months, most of which you have been working for your employer, and should have plenty of wages to set up a claim. This claim will be in effect for one year from the date you file it, not the date you begin drawing it, see the diff?

You will be told you are not eligible to draw this claim because of your physical limitations, but insist on filing it anyway, even though it will be denied because you are not able and available for work. You will not be able to draw any unemployment benefits until you are at least released by your doctor to return to work with light duty (since it was an on the job injury, if it were an off the job injury or illness, you have to be fully released.) At this point, of course, you would have stopped drawing Worker's Comp, too. The worker's comp that you are drawing is going to be lots more weekly than Unemployment Insurance, so of course you will to keep that going as long as you are eligible for it.

But in the meantime, you have this claim that you have already set up, sitting there waiting for you. If you waited till you were fully released by your doctor to even file for unemployment, your quarters of wages might have gotten so low that you had no wages left. So file now---IF your employer is dumb enough to fire you.

When an employer fires a person who is out on Worker's Comp, they lose all control over the case, lose the option of asking the person to come back on light duty, and the person is still fully entitled to all the Worker's comp benefits anyway, the employer cannot cut it off. So they have lost a good employee. Their loss.

If it turns out that due to your injury, you will no longer be able to do the same type of work you used to do, please contact the Vocational Rehabilitation services part of your state agencies. This may be with Human or Social Services or the Dept. of Labor, but they offer retraining and job placement assistance for people who are in your situation. They may even be able to send you to college to get a degree in something you can do and not worsen your health problems. Good luck to you.

[bamboozled]

It is illegal to fire someone who files a WC claim. In CT, it is 31-290(a), not sure in your state. If you get fired, call for a hearing and tell the commissioner. They advocate light duty if and when you are returned. In the meantime COMMENTER is right, you have not been returned to even light duty so benefits should continue.

[Zigner]

Originally Posted by bamboozled

It is illegal to fire someone who files a WC claim.

Please don't post blatantly false information.

Sec. 31-290a. Discharge or discrimination prohibited. Right of action. (a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.

It is NOT illegal to fire someone who files or has filed a WC claim.

[bamboozled]

There you go...you posted the beginning of the law, but not the complete law.
DISCHARGE OR DISCRIMINATION PROHIBITED.....it is sanctionable so it is not untrue....
You have zero manners.....and I was right. You can enforce this in a higher court IF the employer fails to rehire or offer "light duty"...I went down that road already and I won a lump sum and disability retirement so being retaliated against for filing a WC claim.
Have a lovely day.... and read on....

(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.

(P.A. 84-300, S. 1, 2.)

Cited. 216 C. 40. Cited. 219 C. 1. Cited. 221 C. 356. Cited. 226 C. 475. Employer does not violate this Sec. when it discharges employee solely on the basis that employee, who claims a continued inability to work, fails to return to work following a compensable injury despite having been cleared to do so by his or her treating physician. 258 C. 724. Plaintiff failed to establish prima facie case of employment discrimination under statute by failing to present sufficient evidence that she had exercised any rights afforded to her under the act and by lack of evidence in the record to support workers’ compensation commissioner’s finding that the principal or vice principal knew that plaintiff was exercising her rights or that they intended to discriminate against her for exercising her rights. 270 C. 751.

Cited. 24 CA 362. Cited. 28 CA 660. Cited. 33 CA 490. Cited. 34 CA 708. Cited. 40 CA 577. Cited. 43 CA 1. Reaffirmed prior rulings that plaintiff has burden of proving discrimination by a fair preponderance of the evidence. 52 CA 570. Where plaintiff offered no evidence to raise an inference of discrimination and failed to present a genuine issue of material fact as to the reason for termination, trial court properly found that a trier of fact could not find discriminatory intent as required under the statute. 64 CA 263. Plaintiff must present sufficient evidence that there was a causal connection between the exercise of his right to workers’ compensation benefits and the termination of his employment. Statute does not create liability for all torts and does not create a statutory basis for the abrogation of governmental immunity as to other torts. 108 CA 710.

Subsec. (a):

Section contains no requirement that any particular word be used in terminating an employee’s employment. Standard for proof of a retaliatory discharge. 49 CA 66.

Subsec. (b):

Cited. 219 C. 314. Subdiv. (1) cited. 232 C. 91. Subdiv. (2) cited. Id.

Subdiv. (2) cited. 41 CA 116. Subject matter jurisdiction cannot be waived by consent and therefore a stipulation between plaintiff and defendant cannot deprive commissioner of jurisdiction over plaintiff’s claim. 49 CA 114.

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[Zigner]

All the extra work could have been saved had you realized that, in your earlier post, you said "It is illegal to fire someone who files a WC claim". When, what you MEANT to say is "It is illegal to fire someone because they file a WC claim".

I'm sorry if you can't communicate your thoughts effectively. And, Thursdays are my zero-manners days.

ETA: You were NOT correct.

[mlane58]

Originally Posted by Zigner

Please don't post blatantly false information.

Sec. 31-290a. Discharge or discrimination prohibited. Right of action. (a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers' compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.

It is NOT illegal to fire someone who files or has filed a WC claim.

Are you not taking your meds today? Whether the word is because or whatever--it is most certainly illegal to terminate someone for, because or since they filed a workers comp claim. Whether it is state law or public policy it is illegal. Stop with the word games.

[bamboozled]

Originally Posted by mlane58

Are you not taking your meds today? Whether the word is because or whatever--it is most certainly illegal to terminate someone for, because or since they filed a workers comp claim. Whether it is state law or public policy it is illegal. Stop with the word games.

Talk about splitting hairs and then the attitude. I know this law perfecftly since it happened to me and I won without going to court. Also, the commissioner sanctioned the WC person for the state and really hollered at them for not giving me light duty when I proved through job postings, it existed.
Thanks for watching my back. Why must people be so rude when we are all here just helping one another. This too shall pass.
Good luck to the original poster.....know the laws and you shall prevail. Commissioners in my opinion are pro-claimant, especially when they see you trying to work, not trying to milk the system~
Can't we all just get along already???

[Zigner]

Originally Posted by mlane58

Are you not taking your meds today? Whether the word is because or whatever--it is most certainly illegal to terminate someone for, because or since they filed a workers comp claim. Whether it is state law or public policy it is illegal. Stop with the word games.

MLane -

Bamboozled CLEARLY stated that you CANNOT fire someone who files a WC claim. That statement is patently false. It's NOT word games.

From his/her own post: Plaintiff must present sufficient evidence that there was a causal connection between the exercise of his right to workers’ compensation benefits and the termination of his employment.

A person who files a WC claim CAN be fired for an unrelated reason. That is an EXTREMELY important point to make.