One of my employees filed for workers comp more than a year ago for an on the job injury as a mechanic. His doctor told him that he could not return to work without restrictions. We did not have any other positions that could accommodate his injuries. Now his doctor has told him that he can return to work without any restrictions and that he has fully healed. We have hired a replacement and do not have any positions available to him, so he has hired an attorney and is threatened a 132(a) claim. Are we obligated to give his old position back to him?
There are many factors that need to be considered. For instance, how many employees do you have, etc. I suggest you consult with a local experienced work comp defense attorney, one that handles 132(a) claims. Use the find a lawyer tab on AVVO or you may want to try cwcdaa,org (CA workers' comp defense attorneys association). You could also ask the attorney that represents you in the underlying action if they have any recommendations.
Labor Code 132a says you cannot punish your employee for getting hurt on the job, seeking WC benefits or for hiring a lawyer. It does NOT say that the employee is entitled to life-time employment. You are allowed to continue running your business. You must treat that injured worker the same as you would treat any other worker who is out on medical leave for a year. If that means hiring some one to replace him because he's been out of work for a year, you can do that. LC 132a is not a risk that is covered by insurance but you should be talking to your WC insurance company about this.
There is no obligation to give the old position back. Business necessity is a defense to a Labor Code Section 132a claim. So, if you had to commit to a new mechanic out of business necessity, you may have a strong defense. Also, there is the issue of whether you discriminated against him because of his work injury. Were there any derogatory comments made concerning his work injury that were said? I recommend consultation with an attorney. All the facts need to be examined.
I agree with my colleagues. What I see frequently is that Applicant Attorneys will include a 132(a) claim no matter how strong/weak this claim may be. If it is a weak claim it usually gets dismissed once it gets closer to trial.
I think that Applicant attorneys like to keep the 132(a) claim hoping that it will result in some extra money upon settlement of the case or as leverage for negotiations.
If it is a strong case though, it will likely end up being tried.
Your Defense Attorney will likely handle this. Just make sure to provide them with a complete personnel file. THis should include all correspondence from Applicant's doctor, written warnings, etc.
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