Legal Question in Workers Comp in Pennsylvania

Sorry long question? I was injured at work April 2013. I followed all protacol for workers comp injury. I worked until Aug 2013 when I was taken out for work for prep for surgery, (Lumbar) When I went out of work I received a letter that my Leave was workers comp related NOT FMLA so they held my weeks vacation pay. I already knew this so OK. I went through the surgery and was working through surgery recovery and therapy and Pain management as the pain I was having before surgery was still active. I had a Nerve test done and found that I had nerve damage on my left side and I am continuing treatment and therapy. In August of 2014 I received a letter from my employer that they were terminating my employment because I have exhausted my 12month FMLA leave of absence. Now read back and you can see that they clearly made me aware that my leave from work was workers Comp related NOT FMLA!!

So the question I have is my termination legal or not?


Asked on 10/12/14, 4:42 pm

3 Answers from Attorneys

Drew Quinones Drew Quinones, P.C.

Call me for a free consultation. 267-210-8752

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Answered on 10/12/14, 4:58 pm
ANDREA G. TILLIS Law Offices of Andrea G. Tillis

Hi, First of all, even if you were on FMLA, an employer cannot terminate an employee who is on FMLA, unless the employer can show that the employee's position was phased out and no longer necessary. But, even then, the employer must show that he made a good faith attempt to place the employee in another position with comparable pay and comparable seniority.

Most employees are “at will” employees, meaning that their employer can terminate them for any reason or for no reason, as long as it is based on misconduct of the employee and not in retaliation for filing a workman's comp. claim. In fact, most State Workers’ Compensation laws provide that it is unlawful for an employer to terminate, discriminate, discharge, or retaliate against an employee who has filed a workman's comp. claim. An employer is required to keep the employee on during their workers’ compensation claim until they have fully recovered from their injury, or reached "maximum medical improvement" which refers to the point at which the employee's condition relating to the workplace injury is not likely to improve with further treatment.

Even where an employee has permanent work restrictions, the Americans with Disabilities Act, requires his employer to make what is called, "reasonable accommodation". This means that the employer must make reasonable efforts to accommodate the employee's work restrictions caused by his injuries. If, after an employee reaches maximum medical improvement, the employer cannot accommodate the employee's work restrictions, only then is the employer permitted to terminate the employee.

Your employer might not have reviewed their records to see that they sent you a letter regarding your workman's compensation claim when they informed you that you were terminated. If you think that it will do any good, you might want to remind your employer that you were out of work because of a work related injury and you have their letter to prove it. On the other hand, you might want to file a claim against your employer, using their letter as evidence against them.

Kindest regards,

ANDREA

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Answered on 10/13/14, 4:35 am
Terrence Valko ERISA Disability Lawyer

You have a nice federal employment lawsuit plus a workers' comp case to settle. As I understand you are in the Harrisburg area, call Ron Calhoun and tell him I sent you there.

Good Luck,

TV

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Answered on 10/13/14, 5:54 am


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