View Single Post
  #6  
Old 12-01-2007, 07:33 PM
LBP LBP is offline
Senior Member
 
Join Date: Aug 2005
Posts: 446
Default

Hello NJWC,

One thing you stated confused me a bit...maybe a typo? You mentioned your employer was hostile torwards you BEFORE your injury? Did you mean AFTER you were injured and after you filed a workers comp claim? Makes a big difference in the facts

Another question...you've stated you already had a Charite surgery. Congrats. Hope your recovery is going well...hope you're just going through routine recovery. Do you have a timeline when you are expected to return to work or do you have complications that will prolong that process? Will you have work restrictions?

For a general reference at findlaw.com it says:
Workers' Compensation - Employers' Responsibilities
Employer's Duty Not to Retaliate

Although workers' compensation laws provide remedies to injured employees, they also protect employers, as they are designed to be the only remedy that injured employees may seek from their employers. Even so, employers often appear to frown on employees who file workers' compensation benefit claims, and some blatantly discriminate against such employees. To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers' compensation laws, and allow employees to bring civil actions against their employers for the tort of "retaliatory discharge."

If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers' compensation laws, he or she may have a claim against his or her employer for retaliatory discharge. In a retaliatory discharge suit, the employee must convince a judge or jury that it was more likely than not that he/she was wrongfully terminated. However, the employee does not have to prove that the workers' compensation claim is the sole reason for the discharge. The test is usually whether the employer's action is rooted substantially or significantly in the employee's exercise of rights under workers' compensation laws.

Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers' compensation claim is filed. An employee's cause of action may be successful even though all the employee did was give notice to the employer of a claim.
see: http://injury.findlaw.com/workers-compensation/workers-...ics-employer(1).html

Do you feel comfortable discussing this issue with your wc attorney? Are you healthy/mobile enough to meet with a discrimination attorney? I would highly recommend doing a free consult with an employment discrimination attorney. Bring notes of your timeline, when you were injured, when you filed wc claim, when/who/and how they were hostile towards you. This is assuming the hostile behavior was after you were injured and/or after you filed a wc claim.

Good luck in your recovery. You might not feel very lucky right now but getting ADR surgery paid for is no easy feat! Your health is always more important than a potential lawsuit like this but it sure doesn't hurt to be proactive and have your ducks in a row going back into a potentially hostile environment to protect yourself and your livelihood.

JUST an FYI...when filing a discrimination (retaliation) type complaint you are required to exhaust your administrative remedies. Often times this does not mean you must personally file a complaint on your own without the help of an attorney. If you hire an attorney they usually have you complete the required form(s) with the appropriate agencies and then request a "right to sue" letter. This is all assuming you get to this stage and assuming you have fed or state statutory claim vs. a common law claim. Start researching plaintiff side employment lawyers in your area! google them...read up on them to see whose good in your area. another resource is to look at a webpage for the new jersey state bar.

Best of luck. Sorry I cannot do more, but I am not permitted to give legal advice to you.
__________________
Injured 9/01
Annular tears L4/5 & L5/S1
denied adr by insurance for 2 level charite as well as hybrid fusion at L5/S1 with Charite at L4/5.

New ins paid for 2 level lumbar prodisc surgery on 4/7/08 (at age 39) with Dr. Westerlund, at Core Orthop
Reply With Quote