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If my doctors release me to return to work but employer sends me to their doctors who say I cant go back, what happens?

Asked in Los Angeles, CA - 8 months

I have been out on stress leave and the doctors have determined i can return to work with minimal restrictions. employer has told me in the past that they will send me to their doctors to "get rid of me". How can that happen? If doctors say I can go back and then employer sends me to their doctors who say I cannot go back what recourse do i have?

Attorney Answers (3)

Marilynn Mika Spencer

Marilynn Mika Spencer

San Diego Employment / Labor Attorney

Licensed in CA

Answered 8 months ago. 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 California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and/or 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 FEHA, or under the FEHA and 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 FEHA are triggered when an employer has at least 5 employees. Rights under the ADA are triggered when an employer has at least 15 employees. Any rights under the FEHA or 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... and my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment....

You may also have rights under the California Family Rights Act, Government Code section 12945.2 (CFRA) and/or the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA). These laws allow 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 family leave laws, 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 CFRA or 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....

If you don't have your own workers' compensation attorney, you need one. Your employer's workers' compensation department is there to protect the employer. Your employer's workers' compensation insurance is there to protect the employer. Who is representing YOU? To find a workers' compensation attorney, please look at the membership list of the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.
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George Ellis Corson IV

George Ellis Corson IV

Orange Workers' Compensation Lawyer

Licensed in CA

Answered 8 months ago. I am commenting only on the WC aspect of your case. The Panel QME will probably control if you do not have an Attorney. If they have NOT fired you yet, you should get an Attorney to keep them honest. The Employer can get a Fitness for Duty evaluation at their own cost, but it won't help them if I have the Post-Term discrimination case. Sadly, if your claim was denied then your job is probably more important than the small sum you may get. Minimal limitations will probably also make it hard to find an Attorney, but a Labor Code section 132a Termination Claim might goose the value enough to spark some interest.
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Ruben Alonso Montoya

Ruben Alonso Montoya

ANAHEIM HILLS Workers' Compensation Lawyer

Licensed in CA

Answered 8 months ago. If the PQME states that you can return to work with restrictions, you may go back to work. However, if due to your psychiatric injury you are determined to not be able to conduct that type of work due to company policy and they send you to doctor to determine such. You send that doctors report to PQME and he should determine that you are TD. Now that is only commenting on the WC area. Consult with adequate representation before anything else.
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