Saturday, February 19, 2011

Retaliatory Discharge and Temporary Benefits

In a recent Industrial Claim Appeals Panel decision I'll call Gaines there was a retaliatory discharge of an injured worker. The worker was hurt and complaining about the employer not filing a report of injury or providing further medical help. As a result she was taken off the work schedule. Since she was not working and attributed it to the reprisal for her work injury she sought temporary benefits. The hearing judge denied her such benefits saying a reprisal is not a reason for temporary benefits. She appealed and the Panel agreed that the reprisal alone is not a proper statutory basis for temporary benefits but then remanded the case to the hearing judge to address whether her possible restrictions from the injury should entitle her to temporary benefits. Apparently this was not fully looked at by the hearing judge. There was evidence of restrictions but the judge did not adequately address that issue. The reasoning here appears to say that a claimant has to show both a medical problem and loss of wage due to an inability to work or restrictions which impair that ability. A reprisal alone is not enough. However such a reprisal may result in a separate civil claim for retaliatory discharge. The point being made is there is a distinction between a reprisal for having a claim and actual time and wage loss due to an injury. Let's say you fall out of your chair, complain it hurts even if temporary and want to file a claim. Your boss then just takes you off the schedule. So you are fully able to work but in reprisal they give you no hours. Under the Gaines case, as I read it, you'd receive no temporary benefits because you can work and really have no injury. It may be wrongful but your loss of pay is due to reprisal not to the injury. My preference is that this loss due to reprisal or retaliation be able to proceed in the workers comp case rather then in a separate civil case. The reason is that any separate civil case can take many months but the worker is receiving no income directly due to a work injury incident. But my preference is not the law. It takes disability not just reprisal to obtain temporary benefits though in Gaines the remand was to force the hearing judge to decide the disability issue.

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