You’re Fired! Work Comp and Retaliation Claims

In the wrong circumstances, the filing of a workers’ compensation claim can create an adversarial relationship between the employer and the employee. This is based on a number of self-apparent reasons, which are compounded in some instances by the primary denial of benefits. In other cases, the escalation of ill will between the employer and employees frays out of control and results in the employee being terminated from their employment during the claims dispute process.

 

 

Statutory Safeguards for Injured Employees

A variety of state and federal laws and rules protect employees when they claim a disability or injury in the workplace. One common protection is frequently found in individual workers’ compensation laws that allow an injured worker to bring a civil lawsuit if the employer retaliates against them for alleging a work-related injury. Under these anti-retaliation statutes, employees can receive the workers’ compensation benefits they otherwise would be entitled to, plus additional compensation. This monetary amount is usually set forth in statute and enforced by civil courts, and not under an administrative process.

Understanding Work Injury Retaliation

The requisite elements for bringing a work-injury retaliation vary in each jurisdiction. Always consult with an attorney if you have questions. The general rule for an employee to bring such claims and make the prima facie case for a retaliatory discharge include the following elements:

• The person in question must be considered an “employee” for purposes of the workers’ compensation act;
• The employer must make an adverse employment decision or termination against the employee; and
• There must be a “casual connection” between the employee and the adverse decision.

If these elements are properly demonstrated, the employer will typically have the ability to rebut the presumption of retaliation to provide a legitimate reason for the discharge, or other evidence demonstrating a non-discriminatory reason for their action. Some information used by employers include:

• Documented unexcused absence by the employee that is consistent with how other employees are treated;
• Information concerning acts of misconduct or prohibited actions by the employee; or
• Failure to accept work within restrictions as outlined by the treating medical doctor.

It is important to document the rationale for termination and treat all employees equally.

Avoiding Work Comp Retaliation Claims

Avoiding claims and allegations starts with proactive leadership at the employer and includes a role for the claims management team. Effective strategies for reducing your exposure and the cost of claims starts with you:

• Develop an effective response to all work injuries. Every person injured within a workplace is a human being and should be treated as you would like to be treated.
• Assist injured workers and respond to their questions. Effective claims management teams and interested stakeholders at employers can build good will and confidence with an injured party by responding to their concerns. They can also do the little things to make them feel important by sending a “get better soon” note or card.
• Provide a non-legalistic to answer when communicating with injured workers. Remember, you deal with workers’ compensation on a daily basis. Explaining benefit eligibility and the rationale for medical decisions can only be communicated effectivity if the person receiving the information understands it.
• Sometimes an employee may need to be terminated while out of disability due to a work injury. When this takes place, it is important to be aware of applicable state and federal laws concerning employment practices, document all actions and reactions fairly and accurately, and be consistent when dealing with all employees—regardless of an injury or disability.

Conclusions

Retaliation claims in workers’ compensation claims are not common. They can be costly if employment practices are inconsistent and not compatible with applicable laws regarding these matters.

Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is the founder & lead trainer of Amaxx Workers’ Comp Training Center, which offers the Certified Master of Workers’ Compensation national designation.

Contact: [email protected].

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.