Category: Workers’ Compensation

Can I be fired while I’m on workers’ comp?

Workers' Compensation

It’s a common mistake and many people think they cannot be fired while they are on workers’ compensation. While it is illegal for your employer to fire you in retaliation for you filing a workers’ compensation claim, few employers are stupid enough to tell you that’s what they are doing. The flip side of the coin is that you don’t have immunity while you’re on workers’ compensation. So if there is a layoff when your company is downsizing you can be laid off despite your status in the workers’ compensation system. Similarly if your employer cannot accommodate your restrictions they aren’t required to hold your position indefinitely. They can replace you. Finally, if you mess up you can get fired for cause.

You should be cautious as more than one shady employer has fired an injured worker and claimed it was for cause when the facts were pretty debatable. For instance, we represented a retail employee who taught Sunday school regularly and was about as devout as they come. Following her injury she was assigned to work as a greeter. She was fired for allegedly using the “F word” to a customer. This was almost impossible to imagine happening. The proof of this? An anonymous letter to the store manager. At the hearing when asked why the store would believe such an outrageous accusation from an anonymous source, the manager defended it and said she believed the “anonymous source” because it was her own daughter. The Manager admitted to asking the daughter to write the letter and instructed her not to sign it. Yet the manager clung to the story that the underlying offense really occurred.

My human resources person said I had to use my vacation and sick time before they will pay me.

Workers' Compensation

No, that is not what the law says. North Carolina law says that you do not get paid for missing work the first week but you begin getting paid the second week. If you miss the third week – or if you get a rating to an injured body part – they have to go back and pay you for the first week.

If you do use vacation or sick time for that first week the insurance company is still obligated to pay you for the first week if you meet the eligibility for it. While they may claim that this is double dipping or a windfall to you that isn’t how the law sees it. You are using up a limited resource – your vacation time, sick time, or personal time off – and thus you didn’t get it for free. Oddly enough we see this misinformation coming from CorVel and state and local employers quite frequently.

I work for a temp agency at a different company. How’s this going to work?

Workers' Compensation

It’s not unusual for some companies to use a temporary employment agency to hire and place workers for a period of 90, or even 180, days before you become a permanent employee. This makes sense to them from a business point of view. Your workers’ compensation claim will be against the temp agency. Everything should proceed just as it would for any other employee. The only difference is that when the doctor puts you on light duty the company to which you were assigned is probably not going to accommodate you. The temp agency will either assign you to a different company or they may even have you do light duty in their office. If the temp agency isn’t placing you be sure that you have a written record (copies of notes or emails) documenting that you are asking them at least weekly if they have anything available within your restrictions. You’re entitled to be compensated for this period out of work. But we’ve seen a lot of temp agencies claim that the injured worker never made themselves available for work. Don’t fall into that trap.

The adjuster is here to help me, right?

Workers' Compensation

Absolutely not. The adjuster has only one job: to make her company profitable. The way she does that is by limiting how much she spends on your case. This doesn’t mean she’s going to be hateful and evil to you. That rarely works – although they do it sometimes. Rather, she’ll likely be pleasant but doesn’t follow through with things that cost her company money. Things like mileage reimbursements prompt scheduling of medical appointments, and ensuring that you’re weekly checks included credits for overtime, bonuses, and per diems.

What about the adjuster hiring a rehabilitation nurse? Our impression is that this is a calculated maneuver on her part. Yes, the nurse costs money. But if the nurse is effective the doctor may order less treatment and return you to work sooner than he ordinarily would. All of that saves the adjuster money.

Keep in mind that your adjuster is probably under pressure from her supervisors to close out files as quickly as practicable. She’s also probably getting an earful from a lot of injured workers. If she’s been around any length of time she may well be feeling a little burnt out or jaded as to the complaints of workers’ compensation claimants.

The other thing to understand is that your adjuster is a professional. She knows the ins and outs of workers’ compensation. She undergoes rigorous annual training and periodic updates on the law. She is a professional. You are probably very very good at what you do (or did). But you aren’t a workers’ compensation professional. Putting it bluntly: you’re no match for her. You won’t even necessarily know where’s she’s cutting you short if she does. And this is without her even turning to a defense attorney to assist.

The bottom line is that workers’ compensation is one of those areas where you can be underwater without even knowing you are. That’s how complex the law is. It is never ever a mistake to call a lawyer. You may not need to hire one. But you do need to speak with one.

How is my pay calculated?

Workers' Compensation

Your weekly checks – if you’re totally out of work – are called temporary total disability checks (TTD). If you think about it this makes sense… it isn’t permanent but you are completely out of work. These TTD check are two-thirds of your average weekly wage (AWW, and subject to maximum amounts for any given year). You’re AWW is the average of what you earned over the last 52 weeks with that employer taking into account overtime, bonuses, absences of less than a week, raises, etc. It’s extremely common for an insurance company to set your AWW at your base pay and ignore any overtime, per diems, etc. But it’s critical to get this figure right. It’s the key to your entire claim. With that in mind, it may not be wise to trust the adjuster to correctly determine the amount.