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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
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Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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A worker on worker comp. for injury for 6 mo.s determined

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A worker on worker comp. for injury for 6 mo.'s determined as job related according to Co.'s Doctor, given pt alternative work and does so for a 2 months, goes to work gets sick, goes to doctor, Surgery needed for illness, misses 2 days work , Informs boss and Dr.'s note given. Co. fires worker for 2 days misseddue to illness. Is this legal? Note:Co.'s HR staff declined to report INJURY until 4 mo.'s after worker reported. ADVISE PLease!
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.
Under the FMLA and the CFRA if the worker has been working for the company for over a year, then the employer would have been required to grant the employee unpaid medical leave for up to 12 weeks. In addition, the law strictly prohibits retaliation based on the original workers comp claim. Accordingly, if the worker believes that they had FMLA leave left, and they were fired, or if they believe the reason they were terminated could be related to the original workers comp claim, then they may want to consider speaking to an employment attorney in their area as it is likely that they have a claim against the company.

It sounds like there are sufficient facts here to get an attorney to take this case on contingency, which means that the employee would owe nothing out of pocket. Accordingly, the employee may want to consider going to Martindale.com and typing in the words employment and the town or county in which they are in.

As to the HR staff not reporting the injury until 4 months after it was reported to them, the second the HR staff had knowledge of the injury, the company was on notice of the injury. Thus, they cannot use the excuse that they did not know. If you have any other questions, please do not hesitate to ask.

Good Luck!
Customer: replied 1 year ago.

He worked for over 4 yrs. always beat goals, but he took fmla time during the initial 4 mo. period.after injury, they still count that time as fmla. used. Not COMP. They did not give him his Cobra info. they mailed it 1 day before deadline, which tied up his illness surgery wait time. he got it fri.12/8/12 Still waitng for OK!. Since they fired him can they play with his workers comp.Medical. and payments? 2 days before firing the Workers comp. Dr. refered him to aSurgeon for the injury. His Adjuster has ignored all attempts to arrange Surgeon's appt. Please note 2 srgeries are possible the illness one is definite---workers comp/?/ Do not know!

Expert:  Brandon, Esq. replied 1 year ago.

His workers comp claim should not be effected, wether or not he was fired. If he is injured at work, then he is entitled to all medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits and any other benefit which could be considered lost wages as a result of the injury. If he is fired as a result of absences in excess of the FMLA leave, then technically, the company is allowed to fire him. However, because they are giving him such a hard time with the workers comp claim, then he has a strong argument that the real reason he was fired was as a result of the workers comp claim, and not because of his excessive absences and thus for "business necessity."

In regards XXXXX XXXXX surgeries, if a doctor is stating that the surgery or illness occured as a result of the initial work related injury, then the surgery should be covered. If not, then it is a separate matter. Because the workers compensation doctor referred him to a surgeon, he has a strong argument that the company found out they would have to pay for a surgery, and thus retaliated against this individual as a result (by terminating him)

Finally, if an adjuster is not doing what they are supposed to be doing, this person really should speak to a workers compensation attorney in his area to make sure he received all of his benefits. Tell him to go to Martindale.com or any other lawyer referral website and find an attorney that specializes in workers compensation and employment actions. It sounds like there may be a claim for wrongful termination, and there are likely penalties for the companies failure to properly deal with the workers compensation claim.

Hopefully this has answered your question. If not, please do not hesitate to ask any follow ups you may have. If I have fully answered your question, please do not forget to click on of the happy faces on the bottom of your screen so that I may receive credit for my time in trying to assist you.

Have a wonderful rest of your day.

Brandon, Esq., Lawyer
Satisfied Customers: 1753
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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