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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17150
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I am an intensive care nurse with a large well known hospital

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I am an intensive care nurse with a large well known hospital in Birmingham, Al. I have worked for this hospital for going on 10 years. I was attacked by a patient back in December 2012 and punched in the face x2 and sustained a concussion and have been diagnosed with PTSD by 3 different doctors since the event. I have filed for workers comp and been denied, then they resubmitted the paperwork and I was denied again. Now my supervisor seems to be scrutinizing everything I do to call me in to HR to "counsel" with me about things that are common place occurrences in out area. It would seem that they are trying to stress me to the point that I either quit, or they can continue to scrape up things to try to fire me. All this has been going on for 6 months now, and I have filed the paperwork for fmla due to my stress level and they claim that due to management changes I have to have the paperwork resubmitted to my doctors to fill out again. All the while they are trying to get me to come in to HR to be counseled at which time I feel that they will "fire" me. I really don't know what to do. I have been a nurse with 30 years of experience, have been in management positions over the years as well and I can see the "writing on the wall" with the way things are being done. I have been having such a hard time maintaining my calmness now at work that it is difficult for me each and every time I go in. What should I do, I cannot quit work as I am single and do not have enough money to just stay home until I can get over this. Please advise me what I should do and the steps I should take to keep them from firing me. (I have never been fired in my career and have always been in good standing with my employers) This is really unfair for me to get hurt on the job and them deny me workers comp pay. Any help you can give would be greatly appreciated. Sincerely, XXXXX XXXXX
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. Can you tell me if you have consulted with a WC attorney about your WC claim? How long has your employer had your FMLA request and certifcation paperwork and did your doctor use the forms the employer initially gave you? Have you requested intermittent FMLA or or a certain period?

Also, I need to confirm that you understand that I am not allowed, either by this Site TOS or my State Bar Association, to provide you with a legal opinion or legal advice, since we cannot form an attorney-client relationship, and can only provide legal information as it relates to the general subject of your question. If you understand these limits please reply with the information that I requested. If not, you will need to consult with a local attorney who can provide you legal advice.

Customer: replied 1 year ago.

I have not consulted with a WC attorney at present. I have given my information to the Alabama Labor Relations/Workers Comp representative Joseph Ammons and he feels that since I was physically injured and suffered emotional/psychological injury that they cannot disallow my WC claim.


I did fill out the paperwork for FMLA, submitted it to HR Benefits personnel and had my doctors fill out the papers as they requested on the forms that were given to me. Now they are saying that due to management changes I will have to have my doctors fill out "their" paperwork. St Vincents is who I work for and they are now managed by "the Ministry" as it is called. I don't see what is the difference, FMLA is federally mandated is it not so the paperwork forms should be the same

Customer: replied 1 year ago.

St Vineents has had my fmla paperwork since March, and I was requesting intermittent fmla.


 

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for the aditional information. I agree with the WC representative that you spoke to. I am befuddled by your employer's WC insurance carrier's action by denying the claim. Something really doesn't make sense since based on the facts you provided you were assaulted on the job. Under Alabama WC law in order for a psychological injury, like PTSD, to be compensable, an employee must suffer a physical injury to the body, and the physical injury must be the proximate cause of the psychological injury. It sounds like that was the case here. I would strongly recommend that you sit down with a local WC attorney to discuss your case. They are only paid out of your award, so you should not have to pay anything up front for representation in pursuing your claim further.

I see that you posted after I received your initial reply that they have had your request since March. That most definitely violates the law and you should file your complaint with the DOL or find an attorney to assist you.

As for the FMLA, I don't see where you answered my question about how long ago you submitted the paperwork. However, the employer only has 5 days, unless they can substantiate a legitimate reason, for processing your FMLA request and give you an answer. You didn't say whether or not you were asking for intermittent or a specific lenght of time of straight leave, but either way the 5 day rule is the same. If your employer is delaying your ability to take time off for FMLA, you can file a complaint with the Wage and Hour Division of the U.S. Department of Labor, the agency that enforces FMLA. Or, you can sit down with a local employment law firm that handles FMLA issues and discuss filing suit against the employer for violating the Act.

It would probably be a good idea for you to consult with a local employment law attorney anyway, since it appears, as you say, that the employer is building a case for possible termination and you may have a legitimate discrimination or retaliation case you could bring against them either now, or if you are terminated.

In the meantime, you will want to cooperate as much as possible, and as you have been, remain professional. You might also want to keep a journal or a log of the actitivies at work related to counsellings, your WC claim and your FMLA, so you have those to help with your case, should you need to file a complaint with the EEOC or file suit.

Please let me know if you have any specific follow up questions. I would be glad to assist you further if I can.
Customer: replied 1 year ago.

So do I understand that I would need 2 different attorneys to handle this.


Do most of them take a cut of the amount of the award as I do not have money up front to pay anyone.

Expert:  Marsha411JD replied 1 year ago.
Yes, unfortunately, WC attorneys are very specialized. Although you might be able to find a firm that has both WC attorneys and employment law attorneys. As I mentioned, the WC attorney is only paid out of your award, meaning if you don't get any money, they don't get paid. So, you would be fine there. With employment law attorneys though most of them want at least a small retainer up front. Not only because employment law cases are time and cost intensive, so attorneys, like everyone else, cannot front everyone's expenses, but also because they want to know that the client is invested in the process. But you can speak to the attorney about fee arrangements. All attorneys set their own fees and payment arrangements.
Customer: replied 1 year ago.

If they are found to have violated the fmla law by not processing my paperwork in a timely manner then what to I stand to gain by suing or further more what do I stand to gain by pursuing this at all. I am extremely frustrated and stressed to the breaking point. Could I just take time off without having the fmla securely under my belt (as I know you cannot be fired while you are on leave) and possibly use my short term disability until this case is settled?


 

Expert:  Marsha411JD replied 1 year ago.
You do not want to take leave until you have at least filed a complaint with the Wage and Hour Division of the U.S. Department of Labor. You don't want to complicate your position by leaving without permission. Of course, if they will give you regular sick leave you would be alright while either your attorney or the DOL straightens things out with the employer. You would have the attorney initially to contact the employer and let them know that they are violating the FMLA and that you will sue if they do not immediately approve you or if they let you go. Ultimately though if you need to take time off from your health, then you should follow your doctors orders. But, I strongly urge you to get an attorney involved now to try to "manage" the employer away from taking any more adverse actions in your case.

STD does not protect your job, only FMLA does.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17150
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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