Legal Question in Workers Comp in California

I have been on WC for about a year, When I am considered PandS, do I go back to the same employer where I was injured? Is there a law that says they (emloyer where I was injred) have to hire me back for a period of time, so as not show retaliation for me getting injured? I had only worked for them for 4 months, I am a union member, an electrician, and when the job is finished I go back to the Union hall for another assignment. If there is a law could you tell me the law #. ?

Asked on 5/08/12, 12:14 pm

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1 Answer from Attorneys

Nancy Wallace Nancy Wallace
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THERE IS NO LAW that the employer has to take you back after a work injury.

There is a law that, when you are released by the physician to full duty with absolutely no permanent work restrictions, the employer should let you resume the pre-injury job...

....employers who do not let the worker released to full duty resume the full duty face a petition for benefits under Labor Code 132a, an expensive proposition for the employer.

Employers who refuse to let injury workers resume full duty 'answer' the 132a Petition with a "Business Necessity" defense, claiming it had to fill your position after a few weeks or a few months to stay in business.

It's nearly impossible to prove an employer did not have a Business Necessity to fill you position...I've done it, but it takes an 'insider' in management to testify at a trial the employer did not truly need to fill your position to stay in business.

This scenario sounds like the jobs to which you were sent just lasted a few days or weeks. If you couldn't return in a few days, the employer would have an excellent reason for getting another electrician to finish the work timely...the WCAB Judge would not insist all work on the project stop until you healed fully and were released to full duty again.

You can read about Labor Code 132(a) petitions at www.dir.ca.gov . Then Google Business Necessity defense to 132a, and you'll see how tough it is to prove the decision was retaliation and not a business requirement.

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5/09/12, 9:07 am

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