So it looks like I'm gonna have to sue my employer (legal advice, perhaps?)

On 10/28/2010, I sustained an injury while at work. I’ve gone through drug therapy and physical therapy, but it’s looking like I’m going to need surgery to repair a bulging disk. I’ve been drawing w/c since then, and have not been released to return to work. My employer called me the other day, and told me that they were terminating me SOLELY because of the injury, and that I could reapply when I’m released but I’m not guaranteed of getting a position with the company. I think I have precedent on my side: the same thing happened to another employee (who was off for several months, as well), but they allowed her to return to work before they terminated her for something that happened before her injury. Seems to me that by allowing her to come back to work, but not me, it’s preferential treatment.

As a result, my health insurance has been cancelled (though I have received my COBRA letter). The w/c doctor has closed his file on me, because he’s sent me to a specialist. The specialist doesn’t consider me a patient until I have surgery, so refers me to the w/c doc for my pain meds. The w/c doc says they should come from the specialist, so I’m in limbo there, as well.

I know that Indiana is an “at-will” state. And everything I’ve read online said that an employee can’t be terminated for filing a work comp claim. But can an employee be termed for [ii]continuing* to be on work comp?

IBTL—try these folks for advice of this type. They seem knowledgeable, and they’re a lot more amenable to questions of this type. The usual caveat applies though, of course: on the Internet, nobody knows that you’re a chimpanzee wearing a paralegal hat.

Moving from GQ to IMHO, to underscore the proper caution needed in seeking and giving legal advice here.

I’d definitely talk to a lawyer about suing the bastards.

I’m not your lawyer or an Indiana workers’ comp lawyer or an internet lawyer or even a real person, as far as you know.

But if that was really a hypothetical employer’s position, then no, they can’t really do that. They can say other things that might sound like that, but they can’t just up and fire you for being disabled as a result of a work-related injury. For instance, they can fire you for not being able to do your job and deny that a work-related injury is the reason for the disability, in which case your recourse would be to fight that out with them.

But can they acknowledge that you’re out of work because of a work injury and fire you anyway? Not unless Indiana has laws that are the literal opposite of all the ones I’m familiar with.

You should contact the Indiana Department of Labor. What are you describing seems clearly illegal to me (I’m not a lawyer).

Thanks for the tips and support, guys! What sucks is the 66% I draw onwork comp isn’t enough to pay my bills. And I can’t file for unemployment, because according to the state, you’re not allowed to draw that AND work comp. And unemployment rules state that you have to be able to work, which I’m not.

If you have been deemed to have reached your Maximum Medical Improvement or MMI and you can not perform the basic functions of your job description, your employer may have cause to inform you that you have a set period of time to find an open position in the company where you can perform all functions in the description of that job, or they will terminate your employment status, at will.

I am not a labor lawyer, but was a member of management in another state and have had to break this news to employees, per our corporate HR department’s direction…

Those days are, fortunately in my past…

D-Bear, the specialist I’ve seen wants to do either spinal injections of steroids (which he doesn’t think will be successful), or surgery to repair the disc.

Since nothing has been established by the surgeon yet (as far a setting a surgical date or anything), I assume that I haven’t reached my MMI yet.

Well, the one thing we were warned about (as employers) was to be wary of avoiding violations of the ADAAA. (or AD triple A as the lawyers called it) The tag line in the 8 hour presentation by a labor lawyer was…

“Don’t discriminate. Accommodate.” These laws were very stringent. The company was terrified that failure to accommodate an employee with a disability would result in a law suit.

Reasonable accommodations must be made for employees who had a disability. At all costs…

Might be worth your while to study up on the new ADAAA laws.

I talked to my husband, the construction safety officer who deals with worker’s comp all the time, about this thread, and he said what has pretty much been said already - your company is stupid to fire you now while you’re still on worker’s comp (because they’re going to keep paying you anyway, and open themselves up to a wrongful dismissal suit), but if you can’t do the job once you are as healthy as you’re going to get, they are legally entitled to fire you - a company is not obligated to take extraordinary measures that cause a hardship to the company to accommodate employees.

What HIS company does is a modified work program - they’d have you onsite doing something rather than sitting at home, and probably make some reasonable accommodations to continue your employment if possible. What they NEVER do is fire someone while they’re still on worker’s comp.

Your company is dumb, and you need an attorney.

I would agree this seems extremely dumb of the company to do, though I don’t know the rules for Indiana. I can’t imagine that would ever happen here in California where our state bird is the lawyer.

I’m not sure if this matters from a legal standpoint, but I presume they had to give you physical paperwork or at least an e-mail officially dismissing you, and does that paperwork say in writing that the dismissal is due solely to the w/c, or did you only hear that part over the phone?

While I’m sure the phone call is probably lawsuit worthy enough on its own even without paperwork to back it up, I’m not sure what happens when it turns into a “he said, she said” if the reason for the termination is only discussed verbally.

(Florida) workers’ compensation paralegal here.

Florida’s system is pretty typical, and while the employer can fire you, the insurer (or employer, if self-insured) has to keep paying you if you are terminated due to your injury (though at the compensation rate, which here is 66.7% of your average wage). This extends up to the point you reach maximum medical improvement. At that point, you could file an unemployment claim.

The employer might have a better leg to stand on if you were terminated as part of a general layoff, even if you were selected for the layoff due to your injury.

Typically, an employer wouldn’t fire you, they’d have you work light duty, because firing you severely impacts their risk rating (and hence their future workers’ compensation insurance rate). On the other hand, if your employer doesn’t believe they will be able to accommodate the restrictions you would be assigned, it’s not going to make much difference since they’ll have to terminate you anyway.

The preferential treatment thing doesn’t really apply. The employer is not obliged to treat injured employees identically, unless the injuries themselves are identical, and not even then if they can assert a compelling reason for not doing so (economic difficulties, and so on).

This might be a good opportunity for you, incidentally. Most states offer retraining programs for injured workers, and you’d be paid vocational disability benefits while attending school.

The downside is that to qualify for training, you generally need to be literate but uneducated. A high school graduate with no college degree has the best chance of being accepted. Transferable skills are also a hit against you. Even then, though, you would probably be eligible for job placement assistance.

Your options are probably the following:

  1. Get a lawyer, litigate your claim. If you’re old, you might be a permanent total disability candidate.
  2. Get a lawyer, litigate your comp claim and file a retaliatory termination suit. That would raise the value of your claim for settlement, but probably wouldn’t go anywhere at trial.
  3. Suck it up. I don’t recommend this one, especially in this job market.

Bear in mind that there are two things you can’t do if you settle: (1) undergo the surgery, unless you undergo it prior to settlement, of course, and I wouldn’t advise that; (2) go back to work. The employer will certainly require you to voluntarily resign.

None of this is legal advice. I’m not your attorney. I’m not an attorney at all. Get well soon.

Thanks for the support and advice (and a special thanks to Really Not All That Bright for spelling things out like I’m four. I need that sometimes).

I had a consultation with two attorneys yesterday, and they will be doing research into my situation. Not exactly sure where it’s going, but I’ve started things rolling.

Nobody can be required to voluntarily resign.

It might sound like a contradiction in terms, but it isn’t.

If I gave you a dollar in exchange for an apple, and refused to give you a dollar if you did not give me an apple, would you say you were not voluntarily giving me an apple if you decided to do so?

ETA: I think the issue may be that you are reading the statement out of context. I am saying he would be required to resign as a term and condition of any settlement.