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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33167
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I was injured at my previous employer with a back injury. had

Customer Question

I was injured at my previous employer with a back injury. had therapy and an epidural in the spine. now have a new employer and the injury is back, had another injection, and dr. put me on restrictions. new employer will not have me return to work without being 100%. workers comp co will not pay for time off but will pay for all dr. fees. is my previous employer and their comp carrier required to pay for time not working?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Tina replied 3 years ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

On what basis is the employer refusing to pay for your missed work time due to this condition? Have you intiated a new workers' comp claim with the employer?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 3 years ago.

my current employer wants me at 100% with no restrictions. I went to QME and he put me at not lifting more than 25 lbs. when the injury happened I had a 10 lb. lifting limit. liberty mutual says that my new employer should give me modified work since I now can lift 25 which is more than the limit I had when the injury happened, my current employer wants me at 100%. so I am currently off work. this is workers comp claim, thanks

Expert:  Tina replied 3 years ago.
I see. Thank you for clarifying the situation for me, John.

It appears this is a new injury or an aggravation of a previous injury for which your current employer should provide WC benefits to you.

While the employer can refuse to provide modified duty where they do not have that available, they must typically compensate you for the time missed due to the injury or aggravation of the injury you previously sustained, so it does not appear they have reasonable grounds to deny compensation to you.

In addition, the facts you have described may involve unlawful retaliation for filing a new worker's comp claim, which is prohibited by state law. The fact that your restrictions were greater when you sustained the new injury and the employer was permitting you to work indicates they do have work available and are unreasonably refusing to permit you to return to work which could constitute retaliation.

Because it appears there may be two violations of law involved here, I would promptly retain a local worker's comp attorney, and look for one who also takes worker's comp retaliation claims. WC attorneys usually work on a contingency fee basis so there should be no fee unless they prevail on your behalf.

The state and local bar associations can provide attorney referrals for you if you need one.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 3 years ago.

this injury is from my previous employer and their workers comp company is paying, the QME stated that this is a injury from my previous employer, they are paying for all medical but not for time off from work. my current employer is not liable for anything

Expert:  Tina replied 3 years ago.
Hello again, John.

In most cases, an aggravated injury would be treated like a new injury for purposes of WC benefits. While the QME may have indicated that this involved a pre-existing condition, if your new job aggravated it, then they would typically be liable to pay you benefits.While your current employer/insurer may claim they are not liable, in most cases they would be and you need to retain an attorney to refute their claim.

See the following publication by the state of CA (Aggravating a pre-existing condition constitutes a new injury--Page 9):

http://www.calhr.ca.gov/Documents/workers-compensation-preview.pdf

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina


Expert:  Tina replied 3 years ago.

Hello again,

I wanted to thank you for using JustAnswer, and to inquire whether my answer was helpful in clarifying your understanding of the law even though it may not have resulted in the outcome you were hoping it would.

Is there anything else I can assist you with?

If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-tina/

Thank you very much and all the best to you.

Tina