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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34067
Experience:  Retired (mostly)
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injury at work

Resolved Question:

I was injured on the job on 09/19/2012. I fell approx. 14' off the back of a semitrailer full of asphalt when the rope snapped that was used to roll back the tarp over the load. I had a brief lapse of consciousness, don't remember standing up, 2 employees at the plant helped load me into the secretaries private vehicle and I was transported to the hospital approx 10 miles away. I spent 3 days in the hospital with head trauma, 7 broken ribs, a punctered lung, torn rotator cuff, and a compressed spinal c7 and t8. I still have memory loss. I have been off work for 8 months. I have been offered a new job starting in June. Should I accept this job, or continue with workmans comp, I'm concerned about forgoing a settlement.

Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

If this is a new job with the same employer, then you could agree to accept the job on the condition that if your prior injuries cause you to be unable to perform the essential functions of the job, then the employer must pay you the settlement that you would have received had you not accepted the job opportunity. The deal could be set to expire after some certain amount of time, e.g., 5 years.

And, the employer must agree that it will not terminate your employment during that period of time, except willful and malicious or grossly negligent conduct on your part. That way, the employer can't get out of the deal by hiring you and then firing you six months later on a pretext.

Hope this helps.
Customer: replied 1 year ago.

This is a new employer, sorry should have said that!

Expert:  socrateaser replied 1 year ago.
If the new employer knows about your current situation, then I wouldn't accept the job without the employer waiving the "at will" employment laws, and giving you a contract where you cannot be terminated for at least X years, except for willful and malcious or grossly negligent conduct. Otherwise, once again, you could give up the settlement and lose the new job.

If the new employer is not willing to do this, then you are taking a huge risk, because you could end up with nothing. Moreover, this new employer's offer could be a trick, set up with your old employer to try to get you to give up on the workers' comp claim or to prove that you are not nearly as injured as you would like others to believe.

I would think that you would be no less employable after negotiating a final settlement on the workers comp, as you are currently. So, I don't see how the benefits outweigh the risks here.

Hope this helps.


socrateaser, Lawyer
Satisfied Customers: 34067
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi again, I so appreciate your time. The new job is a part time position with the Forest Service, they have been looking at me since last year, and I was employed with them before in 2010. Let me approach this from a different angle, do you believe I would have a lot to gain by NOT accepting employment at this time?

Expert:  socrateaser replied 1 year ago.
I have a judicial temperament. That means I try not to take sides in a dispute. Instead, I try to objectively consider the facts and law and draw a reasonable conclusion.

In your case, you have had a substantial injury. You are entitled to benefits for the amount of permanent injury that you have received, once you are determined to be permanent and stationary (or, if you accept a settlement before that assessment is made). I don't have the physician's actual or reasonably likely final report, so I don't know what you're likely to get if you stay with the workers' comp claim.

What I know, is that the job you are being considered for is "at will" employment, which means that you can be fired at any time.

You may enjoy working (most people actually do -- they just hate their boss -- except when they are their own boss, in which case, they just hate themselvesCool). I grant you that feeling good about yourself and having a job, frequently is the best sort of recovery path. But, in my opinion, the manner in which you have characterized your situation, suggests to me that you are jumping the gun, and you could end up with a job that you cannot perform, and nothing from workers' comp.

Unfortunately, I don't have sufficient facts with which to draw a reasonable conclusion here. All I know is that you're injured, and you have the alternative of a workers comp claim and a new job. Based on that limited information, if it were me, I would want to deal with the "bird in the hand" before I started to pursue the one "in the bush."

I feel that you would prefer that I give you the opposite answer -- but, I cannot. I don't have sufficient facts to draw a conclusion that would affirmatively suggest that you give up existing rights for a speculative future.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34067
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I found your replies to me very informative as well as enlightening. I agree with what you had to say, I just didn't want to face it. It was like looking myself in the mirror and finally having to face what I see. I know I'm not anywhere near 100% yet, and that it will take quite some time if ever if I am again. Thank-you for your honesty and for sharing with me the benefit of your knowledge. Susan

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