Two Cases In One Injury? Can I Have A Workers Comp AND a Third Party Case?
Harassment From Workplace
I talked to a new client yesterday and she brought up a point that I thought was a great thing for you to know if you've been hurt at work so I thought I would share it with you. So her situation is that she got hurt at work she was breaking up ice in a big ice machine and felt something pop in her arm or in her shoulder and now she can't raise her arm up and that usually means a problem with the rotator cuff. It could be partial tear, could be serious tear, could be surgery case or could just be therapy. But no matter how serious it is, that's not really her question, her question is;
Can I sue them or can I do something about the harassment because as soon as I reported the work injury my supervisors' attitude changed towards me. Everybody at the offices attitude changed towards me and now they're treating me like I'm a jerk. They're being very aggressively negative towards me. One of them made a really rude and hurtful comment.
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She can just tell everybody's treating her differently at work so here's what I told her. If we have a worker's comp case filed and they fire you or if there's harassment involving racial discrimination, sexual or gender discrimination, you're a woman and you work with a bunch of men and now they treat you badly or if it's racial or if it's even sexual orientation or anything like that. Those are things we can file a lawsuit.
It's against federal discrimination laws to discriminate against somebody on that basis. But there's also something called retaliatory discharge, which means you get fired for filing a worker's comp claim. If they fire you and push you out of the company for filing a worker's comp claim, that sounds good. Then we can sue them and we can hold them to account for their bad behavior.
Difficult To Sue
However, the bad news is, it's actually difficult to sue for a retaliatory discharge. We need clear proof either from one or more witnesses or a document saying that we're getting rid of this guy because he likes to file workers comp or we're getting rid of this woman because she filed a worker's comp claim. That's pretty rare because most companies know that they're not allowed to do that explicitly. What they do is, they come up with some pretext for firing you.
Controlling Your Employment File
For example, they control your employment file. What they'll do is, they'll put five or six disciplinary slips in there that you've been late five times or six times and they had to let you go. I've had cases where I strongly suspected that the company was just making up a reason to let somebody go. But the problem is, to prove a retaliatory discharge case, you actually have to have evidence that links the exact reason you were fired to you, filing a worker's comp claim.
That's tough to do. Because even if you prove that, the company then has the right to present evidence that there was some other reason and if there's some other reason, the judge might throw your retaliatory discharge case right out of court.
If Harassment Continues, Leave.
So, as a result, lawyers who handle retaliatory discharge cases look at them very carefully to make sure they think they can prove them. That still doesn't mean that you file the case and the other side can still come up with some nonsense evidence.
My point is it sounds good but it's actually pretty difficult so what I told this lady is that she should focus on getting better. And if the abuse, the harassment, and the bad treatment continues, she should get out of there and find a different job.
Focus On Your Medical Care
You shouldn't be treated like that, and if the if the harassment and the bad treatment reaches a certain level, then we definitely can sue on it. But if they're just giving you a little bit of a hard time, that's not something we can sue over. Better that we get you your medical care, make sure if you're off work you're getting paid and make sure that you get a lump sum of money at the end of the case that fairly pays you for the injuries sustained while you were on the job.
This may not be the answer some people were looking for, but it's really the truth and that's what I actually tell my clients.
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I look forward to hearing from you if I can be of assistance to you and your family if you have been hurt at work, and what I can do to help.