Asked 9 months ago - Malone, NYFlag
I was injured at work (I'm an RN) at the end of April. I have a problem with my disc at L5 and have a problem with lifting and repetitive bending mostly. My doctor gave me work restrictions to release me back to work. However, my employer says that per the IME report that I can report to work full duty now. I would also like to point out that the IME report even states that I have about 30% mobility in my back! I feel that I can work but not in the same capacity as before. I'm a nurse so I'm certainly employable but it would be a real shame if my employer could fire me for following my doctor's orders. Can they even do that? I mean, what's the sense of seeing a doctor if you're not going to follow what they say?
Dear Madam or Sir in Malone:
Firstly, your employer can always fire you and you can always quit. Unless, you have Union rules or there is an Employment Handbook with rules about terminations, New York is an "At Will" state. It means no job is "saved" until you get back. Remember, the Employer has a space needing filling in your absence.
It sounds like there is a difference of medical opinion between their IME and your doctors. That will require medical testimony and you should have a workers' compensation lawyer help you with that.
If your Employer has "light" work, you may be advised to try and return to that work. However, there should be light work for an R.N. that you can find.
If your "light work" turns out to pay less, you can claim 2/3 of the difference between your AWW and new earnings AS LONG AS YOUR DOCTORS CONTINUE TO SAY you are disabled for the original job.
Remember, the Carrier is going to fight that too since their IME says you can do full duty.
Unfortunately, injured workers lose jobs everyday as a result of the work related injury. The employer is not obligated to hold your job unless there is a union contract which addresses the issue. And the Family Medical Leave Act only obligates your employer to hold a position for 12 weeks.
Employers can do it but (at least in Wisconsin) they could face wrongful refusal to rehire charges on the back end if you are successful in your claim. Since you have an IME that says you can return to work, you should be contacting a local worker’s comp. attorney ASAP because they can use the IME to cut off your benefits until your own doctor releases you to work. Also, since they have the IME they probably will not honor any light duty restrictions.
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
I am not commenting on any workers' compensation aspect of your case. I write to make sure you are aware you may have rights under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). Many on-the-job injuries meet the definition of "disability" under the ADA. If they do, you may be entitled to reasonable accommodation for your disability. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable you to do the main functions of the job, allowing extra time off work for things related to the disability, and more. Also, the employer may not treat you differently from other employees because of your disability. For example, the employer may not refuse to promote you, deny you training or otherwise limit your job opportunities, and the employer may not fire you because of your disability. Rights under the ADA are triggered when an employer has at least 15 employees. Any rights under the ADA are separate from rights you may have under workers' compensation.
Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&pe....
You may also have rights under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). This law allows covered employees to take a maximum of 12 weeks per year of unpaid leave due to a serious medical condition. The 12 weeks can be taken all at once, in increments of fractions of an hour, or anything in between. The only limit is that the total time off cannot exceed 12 weeks in one year. To be eligible under the FMLA, all of the following must be true: (1) your employer has at least 50 employees who work within 75 miles of one another; (2) you have worked for this same employer for a total of one year, even if not consecutively; (3) you have worked for this employer for at least 1,250 hours in the immediately preceding year; and (4) your medical condition meets the definition of “serious medical condition” under the family leave laws. Your rights under the FMLA are separate from any rights you may have under workers' compensation.
Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): http://www.avvo.com/pages/show?category_id=6&pe....
You ask "can they do that?" How fast can you drive on a highway if you know
there are no speed patrols? An employer used to be able to do that. There
are very recent changes in Federal law (February, 2012) that prevent an
employer from firing you if there is ANY job you can do.
If (as in your case) there is a discrepancy in what your current or
permanent restrictions should be, you need an attorney to resolve that
discrepancy. Without an attorney, you don't even know what rights you have,
much less how to enforce them. Don't go this alone. Good luck.
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