Legal Question in Workers Comp in California
My fiance suffered a right shoulder injury while working for her employer (one of the biggest utility companies in the country) that ultimately will require surgery (bone spurs in the shoulder and shoulder impingement).
Initially, the injury was progressive until it became unbearable and the employer put her on medical leave to hopefully quickly resolve. Immediately she began seeing the company appointed doctor who dragged their feet through the diagnostic procedure (refusal to give an MRI until after months of jumping through hoops) and continued to throw ineffective physical therapy sessions at her to appear on paper they were taking necessary action to resolve.
After unsuccessful Physical Therapy treatments, she then went to a specialist (within the same network her insurance company approves) to expedite resolve, who went on to give an MRI and proper diagnoses. Immediate request for surgery by new doctor was denied by the employer's insurance provider. 4 1/2 months after her last day of work, she receives a letter from her employer that she is now terminated (according to employer handbook, you must be given 6 months).
Ultimately an attorney is retained, who then had 'medical care' released to them and their doctors. A neutral doctor was ultimately summoned by both sides (employer & client attorney) who saw the case one sided in my fiance's favor after examining and questioning her. Eventually the employer and insurance provider finally agree to approve surgery (is this an admission that she was injured from her job duties?), which the procedure will be done the next month.
My question is, with the "wrongful termination", what is the likelihood of her being brought back to the same job or company? It's a great company to work for and she'd love more than anything to be back working with them, as soon as she's recovered but she is currently "terminated".
Jay
1 Answer from Attorneys
Calif. Labor Code 132a states that if an employer unreasonably discriminates (retaliates) against a worker just because they requested Comp benefits, the employer must reinstate the worker plus pay a fine.
A finding by a WCAB Judge that the company violated 132a is a misdemeanor crime.
THE PROBLEM IS PROOF. She must PROVE the reason she was terminated was retribution for requesting Comp benefits.
All employers defend they have a "Business Necessity" of keeping positions filled to stay alive in today's economy. Proving the company did not truly need to fill that post after 4.5 months would likely require a top-level manager or executive to 'rat out' that the company didn't really need to fill her position.
Once a top-level manager testifies under oath that her position had to be filled or the company would lose too much money, the wCAB Judge has to presume that is true unless and until a more reliable witness is produced to testify that the company didn't really require that position need be filled.
You can see these 132a Petitions are nearly impossible to prove.
Still, your attorney must file the 132a petition and get it served right away on the agent for service of process... the agent should be served and the petition filed within one year of the termination.
If the 132a petition is timely filed and served, it's a good bargaining chip... if the physician releases her to full duty with zero permanent restrictions, your attorney can request she be reinstated at the company in exchange for voluntary dismissal of the 132a petition.
Most companies pay a LOT of money to be certain Injured Workers never show up at the workplace again.
Most companies love to be able to warn workers that if they get hurt and report it as industrial, they just disappear and never work there again (this makes 1000s of people treat their work injuries as private injuries with their private insurance).
Knowing the company won't want her to return, and knowing the physician is unlikely to write that she has zero permanent work restrictions with a post-surgical shoulder (they don't want post-surgical shoulders to perform repetitive overhead work or heavy lifting), it is not practical to presume she can return to that company.
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