Recently I was contacted by a gentleman who was referred to me by a friend of mine. He had suffered an injury to his foot and had recently had surgery, and shortly after surgery, while his own doctor was not releasing him back to work, he was contacted by the insurance carrier's adjuster and told that if he did not return to work he might lose his job. Afraid, he immediately went to his doctor and convinced his doctor to release him back to work against his doctor's will. The doctor reluctantly released him back and as soon as he returned to work, still unable to perform his work duties due to the recent surgery he had undergone, he got accidentally stepped on hard by a co-worker and his condition was aggravated. Needless to say he had to once again stop working and now his condition is even worse than before, and his recovery will take significantly longer which will cause him to stay out of work indefinitely at this point.
Although he had a comp Attorney he mentioned he was unhappy with the communication they had. He felt like his Attorney was not representing him as well as he could or should, and he wanted someone new. I was more than willing to help him, however, it seemed his only objective fell outside the scope of my representation. All he wanted was to sue the Carrier/adjuster for "coercing him" into returning to work before he was medically able and consequently aggravating his condition. I told him that not only was that a very difficult action to bring, it was also not something I would be able to help him with since I focus primarily in workers' comp claims and intentional torts are not covered under comp law. But I reassured him that he need not worry about his claim because the getting stepped on incident constituted a new accident, and he would eventually receive the appropriate award for that injury and the aggravation of his condition. Not only that, with proper medical records he would be paid while he was out of work, and regardless of whether or not his employer kept his position open and waiting for him, he would always be covered by his employer's insurance carrier.
He insisted that all he wanted was to sue the Carrier, and got frustrated that I told him his prospective victory was unlikely if he was able to even find an attorney that would be willing to bring forth the action. So, despite my honesty, he decided not to contact me anymore. It's just one of those things about being an honest lawyer, sometimes your client just wants you to tell him what he wants to hear and is mad at you for the truth you deliver.
I decided to write this entry in order to help enlighten those claimants who may have gone or are going through similar circumstances. What happens if the claimant can show that the insurance carrier or its representatives acted intentionally to cause injury, such as emotional distress? Though these claims are not barred they are very difficult to prove. Intentional injuries are not covered by Workers' Compensation Law, and though an employee may bring an action for these wrongdoings against an offending employer or insurance company it will have to be done in civil court, not at a comp hearing.
In order to prevail the claimant is gonna need to show a lot more than just bad faith in the part of the insurance company or employer. He/she must show that the adjuster's or the employer's conduct was so extreme and outrageous that it exceeded all bounds of decency to be deemed utterly intolerable in civilized society. That's very difficult to show and highly subjective.
It is important to highlight the following truths: 1) Absent a contract otherwise, an employer may terminate an employee for any non-discriminatory reason (the discriminatory reasons are the ones banned by Federal Law and NY State, such as age, gender, race, religion, sexual orientation and disability). Though an employer cannot terminate an employee as retaliation for filing a workers' compensation claim, the employer may terminate the employee simply because the employer needs someone to fill in the position that the out of work employee is unable to perform. In other words, the claimant's employer does not need to keep the position open for the claimant while the claimant is recovering from injury. It would be unfair to hold an employer to that when the employer probably needs someone to perform those tasks and its business cannot suffer simply because the employee was injured at work and can no longer perform the task either temporarily or permanently. 2) A claimant cannot sue the carrier or the employer for intentional torts under comp law, and even if they can do so civilly it is do difficult to prove that it either will be hard to find an attorney to represent that claimant in such an action or the claimant will have to pay the attorney hourly only to likely lose at the end.
So what should a claimant do in a situation where either the employer or the carrier says the claimant will be terminated if he/she does not return to work immediately? Rely on the doctor's opinion and put their health first. It is a claimant's choice to let him or herself feel coerced to return to work before he/she is medically able to. The carrier will have to pay for the medical expenses and the wage benefits anyway, no matter whether or not the claimant continues to be employed with that employer. Of course that there are other issues like general health care benefits (for those claimants and claimants' families that get that from the employer), pensions, and prospective employment upon medical improvement. Those are important but not as important as the claimant's health. Returning to work before one is able to will only result in a worse situation, either because the condition will deteriorate causing the claimant to maybe enter an irreversible health condition or because due to an inability to perform the duties as he/she used to the Claimant will end up being terminated anyway.
For more information visit www.medicilaw.com
