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Is the employer required to hold the injured party's job or their position? If so, how long will the hold it?

Willow Grove, PA |

I have an employee who was injured at work. There is reason to believe that the injury is not as severe as this person claims it is. An investigation is in affect and I would like to know if I can fill the position or if I am left short handed.

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Attorney answers 3


The Workers' Compensation Act does not prevent you from filling the position of an employee who is out with a disabling work injury. Other legal obligations may come into play, such as the employee's rights under the FMLA, if your company is subject to that law. If the worker is only disabled from his pre-injury job, but is "able and available" for some work generally in the market place, he may be eligible for unemployment. Also, replacing a worker who is pursuing a claim for workers' compensation benefits may make it more difficult for you to take that injured employee back if he is medically released to light duty or full duty, which is often the best way to limit your exposure on the workers' compensation claim.

I would also hasten to mention that I have never yet heard of an employer who did NOT feel that, in essentially every case, there was "reason to believe that the injury is not as severe as this person claims it is." In my view, the system is slanted toward catering to and/or creating that impression among employers. For example, insurance companies compel employers to adopt a list of approved "occupational medicine" doctors who invariably define all work injuries as narrowly as possible, consistent with the insurance company's preferences. Every herniated disc or rotator cuff tear is described only as a "strain and sprain." If an orthopedic injury cannot be called a "strain" it will be dismissed as a "contusion."

Adding this kind of insult to a work injury can inspire some workers to try to overstate their injury, if only because a less strenous assertion of injury is likely to be downplayed all the more by insurer-referred workers comp doctors. More commonly, legitimate injuries are downplayed.

As an employer, ask yourself whether it is possible that the injury may be MORE severe than the insurance company operatives (including insurance company approved doctors) may wish to admit.

Giving your employee some benefit of the doubt may be better for all involved and save you an unnecessary dispute. Your insurance company contacts, if asked, will tell you that injured workers tend to win in these disputes. Is that because our workers' compensation courts are corrupt or ineffective? Might it instead be because these claims are frequently more legitimate than the insurance company initially acknowledges?

As an advocate for injured workers, I feel strongly that insurance companies do employers a disservice when they mistrust every injured employee, and attempt to downplay every injury and diagnosis.

Give your employee some benefit of the doubt. If you are unable to hold his job open for business reasons, replace him if you must. But be certain that any contest over his right to workers' compensation benefits is truly legitimate and not just the knee-jerk response of an insurance carrier with an improper agenda.


I suggest that you contact your business attorney and get his opinion as to what you may legally do in this instance. Filling the job shortly after the injury may be viewed as a form of retaliation for filing a workers comp claim, which could subject you to additional liability. I suggest you speak with your own attorney.

Legal Disclaimer:

Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to insure proper advice is received.


If you employee 50 or more workers and this particular employe has at least one year of employment with your company then they have rights with regard to job retention under the Family Medical Leave Act (FMLA). Otherwise, you may fill the position. However, as long as no work is available and he is still under restrictions then he is entitled to continue to collect wage loss benefits. In addition, as long as he requires medical attention, he is entitled to reasonable, necessary and causally related medical care.