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WHEN TO SUE IN CIVIL COURT FOR NOT BEING ABLE TO WORK DUE TO A JOB INJURY AND WHEN TO SUE IN THE WORKERS COMPENSATION SYSTEM
May 12, 2014, California Employee Lawyer, Karl Gerber, was interviewed in his Sherman Oaks office about common questions employees might have when they are considering suing their employer.
Interviewer, Sara Justice: I need to understand more about the workers compensation calls, how to screen and how the process works?
Employment Attorney, Karl Gerber: Alright, so let’s talk about that. Do you have any specific questions that would help you screen the call better and understand how workers compensation works?
JUSTICE: Yes.
GERBER: Tell me what your questions are.
JUSTICE: What does an employee’s workers compensation lawyer have to do to be coordinated with employees’ employment lawyers working on their wrongful termination case or discrimination case?
GERBER: So are you asking me why our firm, as the employment law firm doing the employment law case, should be coordinated with the workers compensation lawyer?
JUSTICE: Correct.
GERBER: Oh, well, that’s a good question, Sara. Well, I guess I would start off by saying that workers compensation is not the same thing as the type of cases in which we get involved suing for a loss of a job whether it’s wrongful termination or discrimination for a disability or a family medical condition. In workers compensation, a lot of times it is maybe more so the lawyer’s interest than even the client’s interest to keep the client on disability for a very long period of time. If an employee is on disability for years, just think about it. Could an employer keep someone’s job open for three years? For two years? Even for a year? A lot of businesses, they change what they’re doing, changing business conditions could lead to them not being able to have that job held open for the injured worker for that length of time. Now, I guess some of the other problems are, what if the workers compensation lawyer is trying to maximize the recovery in the workers compensation system by saying the employee can’t do that kind of work anymore? Because you have to understand, if somebody in the workers compensation system gets a very high disability rating because they can’t do their normal job anymore, like, driving, let’s say, then they might be entitled to more money under the workers compensation system. But if they are a driver for a delivery company, like Arrowhead or something like that where they have to lift bottles and they’re not able to do their route anymore, Arrowhead might not really have a job to give them, because a driver for many years may not really have experience in other things, so that might create a great scenario in workers compensation, but it creates a horrible scenario for reasonable accommodations in disability, you know, employers have to make reasonable accommodations for disabilities. They can modify a job for a short period of time, but asking an employer to modify a job forever is not necessarily a reasonable accommodation especially if the employee doesn’t have comparable skills. Another reason why I believe that workers compensation cases need to be coordinated with the loss of employment case is I have seen many situations in which the workers compensation lawyer may be actually waiving the employee’s rights to sue for wrongful termination or disability discrimination. There is a settlement in the workers compensation case, and in the release, some crafty defense lawyer or insurance company writes in that all claims are being released. Well, guess what that means. It means that those employment torts like wrongful termination, disability discrimination, family medical leave, those are all being released, and it makes it very difficult for me to prosecute that case in a normal court system. So those are just some of the reasons why I think there needs to be coordination with the workers compensation lawyer and the employment lawyer. I guess I would also add that it is always helpful if the employment lawyer has a good working relationship with the workers compensation lawyer so that if there is a need to obtain medical records in that case, it’s easy to get them. Because sometimes the medical records in the workers compensation case help the employment case.
JUSTICE: Well, what if a workers compensation lawyer puts the employee on leave for longer than is allowed under FMLA?
GERBER: That is also a good question, because in workers compensation, someone could be on leave for a really long time, and that happens a lot. But it might be more than the 12 weeks allowed by family medical leave and if that’s the only right that this injured worker has, his family medical leave, then there is no case in the civil court system for them losing their job if they need to be out of work for let’s say six months but the medical condition they have is a disability. So let me help you try to understand this. If someone has a disability which is a permanent condition, a history of a condition, a record of a condition, the employer has to let them be out for more than three months to heal, to have medical treatment, that kind of a thing. But if it’s not a disability because it’s going to go away in six months, let’s say it’s a broken leg and it takes two months to heal, and surgery takes six weeks to get because other measures are tried first. If that’s the injury and the employee needs about three and a half to four and a half months out of work, they may not have a remedy for suing when they get fired and may just be in workers comp, so some of those situations, as bad as it sounds, it may be better for the employee to try to get back to work within that three-month window for family medical leave so they don’t lose their job.
JUSTICE: What if an employee is fired due to a work injury? What can you do for them?
GERBER: The workers compensation lawyer definitely can sue for what is called a 132a violation. The law changed in 2012 that prevents now employees from suing for wrongful termination if the only basis of the wrongful termination case is they were fired for a work injury or filing a workers compensation claim or seeking medical treatment in the workers compensation system. However if they were fired from a work injury that also constitutes a disability or a violation of family medical leave rights, then there still would be a wrongful termination case.
JUSTICE: What if an employee is fired due to a restriction the workers compensation lawyer places on them?
GERBER: The question becomes, is that restriction something because of a temporary medical condition that is likely to go away in a few months? If that is the case, the remedy for the employee is going to be limited to workers compensation. If the medical restriction was something that was only going to last for less than three months, then they may have a family medical leave act, in California, a CFRA leave violation. So it’s very important to determine if the employee is at an employer that has 5 employees, they’ve been working there for a year or more, and that they’ve worked 1,250 hours in the last year. Those are the three big requirements for getting family medical leave. If they don’t qualify for family medical leave, and the restriction that happened because of the work injury is because of really a disability, because maybe somebody’s knee is never going to be the same, or they’re not ever going to be able to lift 75 or 50 pounds again, then it has to be evaluated whether it’s a disability case under what a lot of people refer to as the Americans with Disabilities Act but in California is a right under the Fair Employment and Housing Act.
JUSTICE: In order to avoid conflicting advice with a workers compensation lawyer and to protect the employee’s legal rights to their job, what do you suggest?
GERBER: One, I’d suggest that there’d be coordination between the workers compensation lawyer and the employment lawyer which is something we try to do, and there are workers compensation lawyers who have worked with us for years, and if they are willing to represent the employee in the workers compensation case, we’re going to be able to get medical records, we’re not going to have a workers compensation lawyer or a doctor suggesting erroneous medical things like people be on leave forever or try to collect all sorts of disability when they may not be entitled to it. That’s going to help. But I think at the end of the day, there has to be some sort of leave available for the employee in the system that we work in, the civil system, and if there isn’t a leave right in the civil system for family medical leave or for disability, that’s something that just needs to be thought about, but again, understand, workers compensation may be aimed at keeping somebody out of work a very long period of time and trying to prove that they are permanently disabled. That may be the case, and if it is the case, then it may be the appropriate remedy but if someone is likely to at the end of the day, get workers compensation and get rated with a disability rating at nine or ten percent, let’s say nine or ten percent totally body disability, that’s not that high of a rating and they are not going to get a huge amount of money the rest of their life for that. If they have lost a job or career that they had for 20 years, and they’re never going to make that kind of money again, that’s something that you need a case for an employment lawyer to sue in the civil court system and so there really needs to be an evaluation of what the workers compensation injury is, whether it’s permanent, whether the employee is going to be able to work within their career. There needs to be an analysis of what the benefits they might get in a workers compensation system but if the employee needs medical treatment because they have no other way of getting it, or insurance is just not covering it all, they may really need to be within the workers compensation system, and their health may be more important than anything else. Those are good questions. If you have any more, feel free to ask.
JUSTICE: Thanks.
Karl Gerber has represented more than thousands different employees in employment disputes in binding arbitration and court since 1993. He is licensed in four states and maintains multiple offices in California, and Boston, Massachusetts.