FILE A WORKER’S COMPENSATION CLAIM?
In our experience, once an employee is injured on the job the employer will often look for an excuse to fire the injured worker. If you are late, spend time on personal calls, take unscheduled breaks, or fail to follow a supervisor’s instructions you will be fired. In order to try to avoid this you should attempt to be the model employee.
An alternative tactic which some employers will take is to make the injured workers employment so dismal that the employee will quit. Under most circumstances if the injured worker voluntarily limits his or her income they are not entitled to wage loss benefits. Therefore, if you quit your job you will have no wages from your employer, will likely not be entitled to worker’s compensation wage loss benefits, will not likely be entitled to unemployment benefits, and will have no income unless you are independently wealthy. Not many of any of our workers’ compensation clients are loaded with money, therefore, it is imperative that you be very careful in your dealings with your employer following your industrial accident.
To be blunt, as far as Florida Workers’ Compensation Benefits are concerned it is much better for the injured worker to be fired by the employer than it is for you to quit your job. Under certain circumstances you may be entitled to wage loss benefits even you are terminated from employment. After you are fired the workers’ compensation adjuster is very likely to file what is called a Notice of Action Change asserting that you are not entitled to wage loss benefits because you were terminated for cause. I do not know if it is due to calculated dishonesty or just lack of knowledge of the law but just because an injured worker may be terminated for cause that does not necessarily preclude the worker from collecting wage loss benefits. If an injured worker is terminated for cause and cannot find employment due to his or her accident related work restrictions then that worker is entitled to Temporary Partial Disability Benefits.
In addition, if you are injured on the job and your authorized treating physician has you on light duty work restrictions you are entitled to Temporary Partial Benefits if your employer cannot accommodate your work restrictions. This is regardless of whether or not your employer is holding your job for you or not.
An instance when an injured worker is not entitled to Temporary Partial Disability Benefits is if you are terminated for misconduct. Again, don’t allow your worker’s compensation adjuster to trick you into believing that your termination was for misconduct when it was not. Showing up late for work or taking an unauthorized smoke break does not constitute misconduct. In fact, very little amounts to misconduct in the eyes of the law. Things like stealing from register and getting into fights amount to misconduct. Many times what you might think amounts to misconduct is actually termination for cause as there is no set line for what amounts to misconduct. For example, getting into a single angry verbal confrontation while on the job might not be considered misconduct but getting into several verbal confrontations on the job would likely be considered misconduct. Because there is no clear line as to what constitutes misconduct, if this issue is raised in your worker’s compensation case you should seek competent legal advice.
If the employer cannot contrive a way to fire you, they will do the next best thing. They will fire you without a fabricated excuse. One of the most frequent justifications is “business has slowed due to poor economic conditions” and the employer is forced to lay people off. Often only the employees on workers’ compensation are let go. Often the lay-offs are not based on seniority. These sets of facts reek of retaliatory discharge and may not only expose the employer to a claim for wage loss benefits but also a claim of wrongful termination in retribution for filing a worker’s compensation claim.
If you are truly terminated as the result of a business downturn the adjuster will commonly deny payment of wage loss benefits using the excuse that the benefits are not owed because the wage loss has nothing to do with the work related accident. Again, the adjuster is trying to trick you by misstating the law. If you are laid off or terminated due to an economic downturn you cannot sit around the house, do nothing and wait for the workers’ compensation to pay you. However, if you are laid off or terminated due to the poor economic conditions and you conduct a good faith job search and are unable to locate employment due to your work restrictions you are likely due wage loss benefits. We advise all of our clients to keep a thorough job search log so that we can prove to the Judge of Compensation Claim that you took reasonable steps to find a new job. We also advise our clients that much of the job search can now be done online. Most large companies accept online job applications and some of them will only accept online job applications.
Lastly, if your authorized worker’s compensation doctor has placed you on a no work status and you are laid off or terminated you are owed Temporary Total Disability Benefits. This is regardless of the reason the employer let you go. Under these circumstances there is no defense for the non-payment of benefits. Nonetheless, we have seen many instances where insurance adjusters deny payment of wage loss benefits. The most common instance where we see this denial is the situation where the injured worker returns to work on a light duty status, gets laid off or terminated, and, thereafter, the doctor changes the injured worker from light duty to no work status. If your doctor takes you completely out work then you are owed wage loss benefits regardless of what the insurance adjuster says.
Rue Ziffra is a workers comp attorney in Daytona. Find Worker Comp Lawyers in Daytona.
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