I have worked for the same retail company for 18years as a stockroom supervisor on 8/13/11 i was injured unloading a truck, i got workers comp and had an m.r.i. the doc found i had a partial bicep tear in my left arm,the doctor recommended therapy with no work for 3 months.then he gave me more therapy till 2/31/2012....he found i still needed surgery it was scheduled for the first week of march.when i went to get cleared for the surgery they found i needed a sleep study and other tests which workers comp does not cover,due to alot of red tape dealing with my insurance i have had to wait till 4/26/12 to have the sleep study done.back to the job ive only been working 6 to 8 hours a week and yesterday i found out that i was demoted and i lost my full time status.......Can my employer do this.
I am sorry to hear aboutyour injury. Basically, unless you have a contract, employment in New York is "at will" meaning that you can be hired, fired, demoted, promoted for any legitimate (non-discriminating) reason. So in short, yes, the employer can do this to you. If you beleive it is discriminatory then speaking to an attorney may be helpful.
As to the injury -- there may be a chance you can have your sleep study covered by workers compensation, but the most important thing is to have it done so you can get your surgery and move on with your life! Good luck.
EVERY case is different. The answers provided here are general and not related to the specifc facts of your case. I am not your attorney and if necessary you should seek legal counsel.
You have some complicated issues in your situation and it is strongly suggested that you obtain a consultation with an attorney who is experienced in handling workers' compensation claims as soon as possible. If your injury is confined to the biceps area and does not actually involve your shoulder, then it does not fall under the NYS Workers' Compensation Board Medical Treatment Guidelines and your doctor will have to request authorization for surgery from the workers' compensation carrier. This should be done immediately as the carrier may want you to have an examination with their IME before they answer. If they refise surgery then this will have to be determined by a workers' compensation law judge. If the sleep study and any other pre-op workup is necessitated by the work related injury and surgery required to repair it, you may ultimately be able to have the workers' compenation carrier cover these expenses. Asyou are working fewer hours due to the work related injury, you should be able to make a claim for reduced earnings and receive partial workers' compensation payments along with the reduced salary you are receiving. You will need your doctor's reports to support this claim and proof of lower earnings. About a year after the surgery, you may be entitled to a schedule loss of use award for permanenet loss of function of your arm due to the work related injury and surgery. Unfortunately, there is nothing in the NYS Workers' Compensation Law that requires the employer to preserve your position while you are out of work due to a compensable injury. The employer is allowed to replace your function in a reasonable manner in order to maintain a stable workforce. What Section 120 of the NYS Workers' Compensation Law does prohibit is discrimination or retaliation against you because you have filed a workers' compensation claim. This is often difficult to prove absent some sort of smoking gun. However, there may be some remedies for you outside of the workers' compensation law if your employer has violated an employment contract, collective bargaining agreement, civil service rule or has unlawfully discriminated against you on the basis of certain protected categories such as disability, age, gender, race, religion, etc. You should consult with an employment law attorney if you wish to look into these possibilities and keep in mind that there are time limits for filing any of these claims for workers' compensation benefits and/or discrimination. Good luck.
This answer does not constitute legal advice nor does it create any attorney client relationship. It is provided for general purposes only and you should not rely upon it in making any decisions. You should consult with an attorney licensed in your state who is experienced in the area of law involved in your question.
You have exceeded the FMLA time required by law and case law, however, it sounds as though you may be a victim of disability discrimination and as such, I suggest you meet with an experienced employment attorney immediately to discuss your options and statute of limitations.
All initial consultations should be free.
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