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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1845
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I was found to be 6% disabled in my right shoulder after undergoing

Resolved Question:

I was found to be 6% disabled in my right shoulder after undergoing surgery. I was out on a workers comp claim.The doctor released me to return to work as of March 8 2013. I contacted my H.R. person who informed me that since the doctor gave me some restrictions they could not accomadate me at work unless the doctor gave me a full release. So I have lost pay and all medical insurance for my husband and myself.My husband is disabiled with M.S. and also fighting prostate cancer, I have health issues that will make it hard to get private med.ins. I have worked for Raleys for 21 years, my thought is if the place I work is the reason for my medical problems shouldnt they allow me to return to my job with out my doctor changeing his diagnosis. Thank you, XXXXX XXXXX (calif)
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Employment-LawExpert :

Welcome to the chat.

Employment-LawExpert :

First, let me say that I am terribly sorry to hear that you have found yourself in this situation.

Employment-LawExpert :

It is a shame when an employer feels they can treat an employee in a manner such as this.

Employment-LawExpert :

Concerning your question, under the ADA, and Unruh civil rights act, your employer must allow you to return to work with a reasonable accommodation as long as you can still perform the major functions of your job.

Customer:

yes

Employment-LawExpert :

So, you can ask your employer specifically if you can return to work with restrictions.

Customer:

yes

Employment-LawExpert :

If they are unwilling to accommodate you, you can either file a claim against them for discrimination, or you can remain off work and file for TD, supplemental job displacement benefits, or PD.

Employment-LawExpert :

If you would like to go back to work, however, the best course of action is to get your doctor to release you to work with a list of reasonable accommodations concerning your injury. Accommodations which allow you to perform the "essential functions of your job"

Employment-LawExpert :

He should set out clear and specific limits of your job tasks while recovering. This could include no repetitive bending, no stopping, a change in your schedule, your assignments, your equipment or any other working condition.

Employment-LawExpert :

The only caveat is that the employer does not have to accommodate if that accommodation consists of an "undue hardship" on the employer

Employment-LawExpert :

How long have you been out of work?

Employment-LawExpert :

I am trying to make sure you are still covered under the FMLA or the CFRA

Employment-LawExpert :

If so, your employer is required to keep your job open, and pay you for any lost wages while you are out of work as a result of your injury

Employment-LawExpert :

You at no point have to "change diagnosis"

Employment-LawExpert :

This is unfortunately a technique some employers use in order to try and pay out less.

Employment-LawExpert :

When were you injured? Before or after Dec 31, 2012?

Employment-LawExpert :

Are you still there?

Customer:

Iwas hurt on 11-11-11 and they have not terminated me yet. I went out on 6-14-12 had surgery on 7-10-12.

Employment-LawExpert :

That changes things slightly. The good news, is that because you are not being offered regular, modified, or alternate work, your weekly benefits will be increased by 15% once an offer is made. Additionally, if you are requesting to work, and it is the employer that is refusing to allow you to work, they are definitely opening themselves up to a retaliation claim based on filing your workers compensation claim, or a claim based on retaliation of your disability.

Employment-LawExpert :

The bad news, is that there is no more legal protection for your job. So, you may want to consider doing a couple of things. First, make sure to get something in writing from them stating that your job has not been terminated, and that it is there for you once you reach 100%. Second, go speak to an attorney who specializes in "workers compensation" and "employment law "as soon as possible. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. In a case like yours, the attorney would take your case on contingency, which means that you would pay nothing out of pocket. If the company has stopped giving you pay or medical insurance, and you could have done your job with a reasonable accommodation after 12 weeks of you being off the job, then you stand a very good chance of being able to recover and be reinstated in your old position. However, keep in mind that an employer is legally allowed to terminate you after the 12 weeks as long as they can point to a legitimate business interest.

Employment-LawExpert :

But, if they did not terminate you prior to your request to come back to work, then they have likely opened themselves up to a number of claims.

Employment-LawExpert :

Does all of that make sense?

Customer:

yes, what a major hassle to keep a job you love and are good at, the stress is unreal. THANKS

Employment-LawExpert :

Not a problem. It is definitely a pain to have to deal with an employer trying to beat the system, but there are laws in place if you are willing to avail yourself of them. Have I fully answered your question today?

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your evening.

Customer:

yes

Brandon, Esq., Lawyer
Satisfied Customers: 1845
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Brandon, Esq.
Brandon, Esq.
Senior Counsel
334 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.