Legal Question in Workers Comp in California

Laying off employee who was injured

My employee just told me yesterday that he was injured 3 months ago at work. He never mentioned it before. We have been laying off employees (10 in the last 2 weeks). I think that he heard through the grapevine he would be laid off, I believe this is why he is coming to me now and claiming he injured his shoulder 3 months ago on the job. He is a wood sorted at work. He also does side jobs on his time off. He builds patio covers, fences, decks, wood furniture etc. He moves furniture and does manual labor at his side job. We sent him to our doctor and the doctor was also leary of his claim. The employee asked the doctor to release him for full duty, so the doctor did. Now the doctor wants him to go to physcial therapy, yet remain at work and continue to sort lumber. Can I still lay off this employee as I had planned on doing? Or will this be a potential lawsuit?


Asked on 9/26/08, 12:54 pm

1 Answer from Attorneys
David Lupoff Law Offices of David B. Lupoff

Re: Laying off employee who was injured

Of course you can lay him off, and yes it can be a potential lawsuit. He can hire a applicant's attorney who could file a 321a claim (comp's version of a wrongful termination/discrimination claim) against you and at the end of the day, it all boils down to witnesses and evidence. Unfortunately, a 132a is not usually covered by your comp carrier, but many times the comp carrier's attorney tries to include it at the time of settlement.

I recommend you turn this over to your carrier as required by law anyway, and let it take its course.

Good luck.

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Answered on 9/26/08, 8:27 pm


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