California Employment Law
California Employment Law Questions Answered by Legal Experts
I was assaulted by a co-worker in May and that assault resulted in a broken wrist, sprained thumb and PTSD. My work refuses to fire the man that assaulted me. I have filed a WC claim and I have called the police. I have been cleared to return to light-duty work by a hand specialist just this last Tuesday, but the psychiatrist that I'm seeing doesn't want me to return to this job at all as long as the assaulter is still there. I'm on TTD now. My employer called today wanting to know when I'm coming back. I don't know what to say. I'm going broke on TTD, but I really don't feel comfortable returning to this job. My work initially tried to get me to take a severance package (although no amount or terms were stated), but now they're saying they want me to come back. What should I do? If I take a severance payment does my TTD and WC medical coverage end? Am I still covered by one doctor saying that I shouldn't return to work if another doctor says that I can?
Hello and thank you for your question today.
Are you online with me?
First let me say that I am terribly sorry to hear that you are in this situation. Concerning your questions, if you take severance, this will have no effect on your TTD (as long as you are talking about SDI, and not a separate policy through the company) or your WC medical coverage as long as they do not try to sneak in a statement which states that you are releasing the company for any and all liability (it does happen, so be careful). The reason that your work wants you to come back to work, is that you are also entitled to a portion of any lost wages (usually around 2/3rds) for any injury caused to you while on the job as long as you are unable to do that job. The second that you go back to work, you are stating that you are okay to go back to work, and you no longer require payment for the portion of any disability you are experiencing.
Welcome to the chat
Currently, you have the rights to sue the individual for assault, and the right to avail yourself of all workers compensation benefits.
While you retain the former, you would loose the latter due to certain circumstances.
Finally, you mention that one doctor is stating that you can return to work while another is not.
The problem, is that the one that is stating you can return is stating that physically you are healed.
While the one stating you cannot return is stating that you should not return because a person is there. These are two very separate issues.
And while you would still be covered due to medical necessity, i.e. you cannot come back because you are not healed enough to to do so, it will get very difficult given the circumstances.
The best approach here is to do what you have been doing to get an attorney to help you with the claim against the co-worker, as well as make sure the company does not stop any medical treatment you require. If you are having trouble finding someone, consider going to 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 willing to take your case prior to selecting the one you feel most comfortable with.
In the top right you would type in "Workers Compensation Personal Injury California."
On the left hand side, you would then click on the town or county in which you live.
Does all of that make sense?
Yes.Can/Will the insurance company or my work force me to go back at this point because of this doctor split?
So, if the psychiatrist is willing to state that you are incapable of returning to work due to your mental condition, then they would not be able to force you to go back to work. However, if he is simply stating that you are okay to go back, you just can't go back while this person is there, then unfortunately, I must tell you that they would be able to require you to return.
Does that make sense?
So depression or an anxiety order could be deemed work related and thus would allow you to stay out. But, stating that you are just not ready to be around this co-worker would not
To be covered, you would need to be able to prove that the mental condition exists in a diagnosable form, and that that condition is serious enough to prevent you from doing your job.
I've not gotten my copy of the latest psych report yet, but the most recent one I have states under "Treatment Plan": The patient should not go back to work where this particular individual is who physically assaulted him.
The diagnosis is PTSD.
I've been put on medication for it as well.
I understand that. That statement clearly sets out the guideline to follow, but not the diagnosis itself. What kinds of medication are you on?
I'm currently on Seroquel XR.
The treatment for the PTSD through the Seroquel XR medication and ongoing evaluation would go a long way to proving your claim. But for them to approve the leave, it needs to specifically state that you are unable to come back to work at the moment, due to the PTSD, not just that you should not go back to work where this individual is.
So, for example, if the report stated that you still suffer from PTSD and that you are suffering from depression, anxiety, and an inability to sleep, then additional leave would be granted
I apologize if I am being unclear, but I am trying to get across the necessity to show the condition you are suffering from, rather than just the need to not be around this particular person.
They need to see some evidence of extreme anxiety or emotional disturbance to date
Think of it this way. The hand specialist says you can't go to work because you need to heal. They are now saying your hand is better, so you can return to work. The psychiatrist says you can't go to work because you are suffering from extreme PTSD. He is now saying you are okay, just you shouldn't be around this individual. If he states that you are still suffering from extreme PTSD, then you would be covered.
They are two separate injuries related to workers compensation.
Ok. Looking through the three psych reports I have here, the history of the PTSD has been pretty well documented. During my last visit, the doctor stated that he would give me at least 3-6 months on this medication before I'd be better. I've only been taking it for just over a month now, say five weeks.
Workers compensation laws allow some level of benefits depending on the severity of the PTSD as outlined by the doctor. The more severe the case, the more likely you can remain off and continue to receive benefits. However, please keep in mind that it is never easy to win a stress related workers compensation claim, so while the best thing to do is to go on Martindale and get an attorney involved, the next best thing is to make sure there is something in that latest doctors report that states that you are suffering from flashbacks of the traumatic event, or depression, or anxiety, or emotional detachment, or irritability and anger, or self destructive or violent behavior, or obsessive compulsive behavior, or memory and concentration problems, or nightmares, or headaches, or ulcers, or high blood pressure, or vomiting, or diarrhea, or fatigue, or some thing that shows your ongoing condition.
Not just the fact that you shouldn't be around this individual.
Does that make more sense?
He's documented my nightmares, anxiety, depression, sweats, flashbacks and hypervigilence (among other things) that have been ongoing in all 3 of these reports. He lists me as still symptomatic in the latest one that I have. I just had another visit this Tuesday and haven't gotten the current report yet, but the doctor made it clear that I'm definitely still having PTSD based on his evaluation.
Then as long as you are still symptomatic, you can remain off of work for up to 12 weeks (as long as you are covered by the FMLA or CFRA)
Does your employer have more than 50 employees?
We just joined up with ADP.
What do you mean by sort of
They're a co-employer.
Do your checks come from ADP or from this company?
So my actual work has 20 or less employees, but now through this ADP does our HR.
Okay, if ADP does your HR, then you have been acquired by ADP so it is ADP's employee numbers which would grant you protection.
The ADP thing started in the same month I got injured.
So you would be guaranteed 12 weeks of unpaid leave protection.
I got an email saying not covered for FMLA due to not working enough hours.
But I have worked that many hours.
You haven't worked 1,250 hours in the last year?
I did! More than that!
I think ADP might be going be our partnering date...
By our I meant
I still need to call and get that straightened out.
You definitely should, because whoever you spoke to is in for quite a surprise if they start breaching FMLA laws.
At this point, given everything you have said, the best situation is to go on Martindale.com and start calling attorneys in your area. They can help you bring a claim against the individual who hurt you as well as make sure the company abides by the law, does not discriminate against you because of your disability, or retaliate against you in any way for making your workers compensation claim
So, I need to tell my boss that although one doctor has released me the other hasn't. And I probably shouldn't quit just yet.
Unless the severance is amazing you should not quit.
What's a good severance in the case? Is it based on weeks or months?
In this case... Sorry bad typing tonight.
This whole situation makes me sick to my stomach.
Not a problem. Usually it is one week per year that you worked there, but that can vary
I'm just coming up on two years with these guys, so 2 weeks pay (plus I'm assuming maybe my unused vacation)...
Severance is separate from your unused vacation.
You are required to be paid any unused vacation as a wage.
Severance is only guaranteed if it is guaranteed to you in a contract.
Otherwise, it is up to the company.
Regardless of whatever happens, if they fail to pay you the vacation time upon separation from the company, you can make a wage claim with the DLSE and they will make sure you get paid for this time.
You can do that here
Have I fully answered your questions today?
So If I do quit, the TTD stays in effect for as the long as the psych doctor documents the PTSD properly?
Well up to a limit, but yes
What are the TTD limits?
One doctor mentioned some kind of job replacement program.
Is that only for more serious physical injuries?
Or would PTSD qualify?
Job replacement would occur if you were unable to perform the functions of this type of job.
Well technically its job training
It would be very difficult to argue that PTSD makes you incapable of being able to perform this type of job.
That is separate from this company having to give you the same or similar job in the company under the ADA
If I took severance, can I file for unemployment afterwards?
Yes, severance does not count as a wage for the purposes of unemployment.
However you must be ready, willing and able to work in order to claim unemployment
Would the TTD checks stop at that point? Would I only receive the WC medical insurance then?
Good point on the unemployment front.
Also, you would not receive unemployment if you decide to quit so keep that in mind
Even if they offered me severance, is that me quitting? Or am I being laid off?
It depends on the words of the severance. You can be laid off and receive severance, just you have to be careful that they are not trying to sneak in there that you are voluntarily resigning your position.
However, you have an argument that if they state that you have to quit or be fired, that quitting would constitute good cause in this instance. However, if you were to be fired, you would have number of claims against them
Such as retaliation and discrimination.
So that choice is up to you.
The ADA has advised me to get a restraining order against this person.
As for your earlier question, mental disability gets tricky. To receive TTD you have to prove that you are suffering from some work related condition that is making you unable to come to work. Unemployment states that you have to be ready willing and able to work, so while you can technically collect both simultaneously, you have to be careful how you word it, because you cannot be to ill to work to receive TTD, and perfectly well to work to receive unemployment.
The ADA is a law.
the district attorney
You can get a TRO against this individual
Do you feel that your life would be in danger if you were to go back to work?
If so, then you should definitely get a TRO against them
This guy is easily twice my size.
He's also an ex-con.
As a violation of the TRO would result in additional damages against the individual.
We'd still have to work in the same building if I go back.
Use the same bathroom, etc...
I'd see this guy every day.
The incident happened in my office, next to my desk.
A judge would take all of this into consideration. You could get for example a 100 foot restraining order
I think having to stare at theconcrete floor that you landed on after being assaulted everyday probably wouldn't be very fun.
I definitely understand your concerns, and if your condition exceeds "wouldn't be very fun" into causing anxiety attacks, etc. you would still be protected.
Most definitely. Shaking as I type this.
As for the restraining order, if this person accidentally finds themselves in the same elevator as you you can allege that they violated the restraining order.
The restraining order will be modified to allow this person to continue to work for the same employer, but it will be on this person to stay away from you, and not the other way around.
My boss is concerned that because I have to have some amount of daily interaction with this guy (he's our shipping/warehouse guy) that I won't be able to do my job properly. He has to ship out every order that my department produces, every day.
While that is a legitimate concern, it holds no bearing to your legal rights. Your TD benefits keep you receiving lost wages as long as your injury prevents you from doing your usual job. If your boss refuses to allow you to come back to the original job, then that boss can be liable for retaliation for you filing a workers compensation claim
I've met with him once since the injury. He berated me and tried to get me to say it was my fault or that I was equally responsible for the incident. He kept telling me how I felt!
He asked "Do you honestly think it's a good idea for you to come back here?
With a TRO, this person can no longer speak to you about anything. If he is the one who caused the incident, he is the one who has to suffer. Not you.
He added "You'll have to see this guy every day and you cant expect me to fire him, he's worked her for seven years."
Yikes. Can't. Here.
Has this person every injured anyone else?
Because if so, there may be additional claims against the employer for negligent retention and hiring.
I'm sure at some point. Not sure what he was in prison for exactly. He's an ex-gangster guy though.
He's definitely a bully.
When you speak to an attorney in your area, you should definitely bring this up.
Because you may be able to bring the employer in on your claim.
I have to loan him some of my employees on occasion because he scares his help off all of the time.
And sue them directly
That would not necessarily be sufficient unless other employees had complained to the company that they are afraid that he will engage in physical violence against them.
It would be in your best interest, however, to get a TRO. Then, if he violates the conditions he can be arrested and charged with a crime
It is not a defense that you work together, or even that you were okay with the violation.
At the end of the day, firing you will result in a ton of problems for the employer. Firing this individual will not as he is likely an at will employee.
But again, what to actually do is entirely up to you.
I think you've given me some good jumping off points to pursue with a lawyer. I will check out Martindale. I'm just really worried that I'm going to end up going back to this place before it's sorted out.
I've never had anything like this happen to me and I don't know very much about the WC or civil litigation process.
Well hopefully I have given you enough information to get you pointed in the right direction. While the legal process can be complicated at times, it does tend to work in the benefit of the victim.
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.
Have a wonderful rest of your evening, and good luck! While you may not need it, it's always good to have anyway.
Thanks. You have a good night as well. Thank you for your time.
Not a problem. If you ever need to ask for me again, please feel free to do so here:
I just hit a wrong button and meant to copy my answer...
Now I don't see it.
Once you provide a positive rating you should be able to print it, copy it, or do anything else you would like with it.
Until then, however, they tend to prevent such actions.
I think I hit the save and exit. Can I bring our chat back up?
Oh, ok. Thanks!
Click a rating and then save and exit again. It should bring up the chat in its entirety
Ok. Thanks again.
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