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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18906
Experience:  Employment/Labor Law Litigation
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Workers Compensation question. This question is asked by

Customer Question

Workers Compensation question. This question is asked by Employer. An employee reports that he had to visit ER because of back pain, brings document from ER saying that he must be 2 days at home and 2 weeks at no heavy lifting. He visited ER in the morning of 3rd day of long weekend that is approx 60 hours after his last working hour. The employees duties involve lifting. The ER did prescribe painkillers and as per employee no Xray or MRI was done - he was instructed to follow up with specialist if pain doesn't go away. FYI For other cases employer uses out of pocket payments if bill is relatively low and WComp if bills stack up to over 5k+. Employer wants to avoid WComp claims for smaller amounts to save on insurance rate increases. Now questions: 1. How to determine work relatedness in such cases? 2. Is the employee mandated to inform employer about the stituation the same day it happens? 3. What if there is no particular incident and the pain in back evolved over time and is a gradual hazard effect? 3. Employee presented employer with the hospital bill. The employer would like to consider lack of work relatedness - then employee will pursue WComp correct? Lastly - Can employer demand doctors clearance for return to work and meanwhile deny employment until cleared?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

1. This is always the argument and it really becomes an issue of fact for a jury to decide if there isn't an agreement on when the injury occurred.

2. There is no law requiring notice, but failing to give notice of the workplace injury when it occurred makes the employee's position more difficult to prove. Ultimately, it is the employee's obligation to prove that the injury is work related. That being said, some back injuries are slow onset. This isn't like a bro***** *****d, which would have been an immediate trauma. The employer can make a policy requiring immediate notification of workplace injuries, but nothing in WC law requires that the employee do so in order to be WC eligible.

3. This is a very common complaint, with repetitive stress injuries. It's harder to prove for the employee, but doctors connect repetitive stress injuries to workplace conditions all the time.

Employer can state that they don't feel it is work related and force the employee to make the WC filing, get a doctor to connect the injury to the workplace condition and obtain a WC settlement for the medical issues (if he can prove the connection).

Yes, it is fine to require a release to work before allowing them to return to work. Nothing in law requires an employer to create a light duty position. The only concern you'd have here is if you have, in the past, created numerous light duty situations for others and are suddenly not doing it here. Then the concern becomes "how does this person differ from the others? Race, religion, gender, age, disability? Then they could argue discrimination treatment). This is the only concern though.