Employer is Eliminating an Injured Worker's Job

[upwaynorth]

My question involves workers compensation law for the state of: Minnesota

I was injured two years ago at work and discs have collapsed in my back. Surgery is an option, but not with a good success rate. I have managed to work a forty hour week without issues (nothing in my file) because it suits me as it's a sitting job. I was recently rated 100% disabled by my doctor because of pain and lack of mobility, etc. My employer is bumping me out of my present job for an "intern" (who will be paid, which makes her NOT an intern, but an employee) and now they are wondering what to do with me. They tried putting me in another dept. with lifting of fifty pounds and I refused as it's in my limitations that I can not do that. The writing is on the wall they want to get rid of me for the new and improved version but with the ADA am I protected in some way as long as I can do the job I had? (I've done it for two years now!) Can they just bump me out of my job and then say sorry, there's nothing else for you to do?

I would appreciate any help.
TIA

JB in Minnesota

[greentree]

you need to discuss with your doctor how you can be 100% disabled and also perform your regular job.
the confusion between the two puts your continued employment in jeopardy.
While ADA requires a discussion of reasonable accommodation, it's difficult to see what is reasonable with someone who is 100% disabled.

you likely will need your doctor to lessen the restrictions down to where you can perform your usual and customary duties but that will lessen your disability rating to less then 100%

you can see from the employer's point of view how difficult it can be to justify paying a worker 100% disability payments while still giving them a full pay check.
In their mind it should be one or the other not both.

[upwaynorth]

I realize the rating is incorrect. At work I merely sit and despite taking pain pills to get through the day, it is home life that is intolerable. I live alone and am now paying people to do the things I once did such as cleaning and yard work. My home is too much to take care of. All along, the importance of a job and health insurance has been paramount to me, so I've done what I had to do to keep my job without interference to my employer at my own cost. To be just yanked out of my job now and be replaced by someone else when I've done an excellent job is so confusing. I was just hoping with a disability rating of some kind I would have some rights against this.

I am not receiving any disability payments, just my regular paycheck. I've never been to an attorney about this because I never feared my job being in jeopardy until now. Should I contact an attorney at this point?

Thank You.

[Conrad Hunter]

You are well past the SOL for any claim under workman's comp, but you might have some other claim. For instance, there might be a requirement that the employer report injuries to its insurance carrier, and the SOL won't apply. I have no idea of wc law in your state. I do suggest you speak to an attorney asap that is an authority in this area of the law and the ADA.

[upwaynorth]

I spoke with an attorney about this yesterday and was very discouraged and am wondering if I should see another. He is an experienced work comp attorney.

Basically, because I had a pre-existing condition - I had surgery for a herniated disc successfully four years prior to my fall at work - he says I really have no case. He said if they offer a settlement to take it and be glad.

I did actually get a check in the mail yesterday and was told when I called that it's the first payment of my settlement.
It will be paid weekly until paid in full.

My doctor rated me 100% disabled, which I know is incorrect. The attorney said based on the amount of 11,900 for the settlement, they have lowered it to probably 12 percent. That's a big difference!

I don't know where to go from here. Is he correct that I probably won't get anywhere pursuing this? My disability is far more than 12 percent. Do I have a right to challenge that? From this point forward then are medical costs for this injury my responsibility and will my health insurance cover it if it was a work comp injury?

I am so deflated from the attorney consultation. Plus, I'm sure they are working to get rid of me at work. The writing is on the wall there. I'm very frightened to be near sixty years old with little hopes of getting another full time job in my small town that offers health insurance. What do I say, hey I can't lift more than five pounds, I can't twist or turn or bend, can't stand more than fifteen minutes. Sure, hire me over these other twenty healthy people.

Is there anything I can do or should I go see another attorney? Thanks in advance if anyone can give me some advice.

[cbg]

In many states attorney fees for workers comp cases are set by statute. So the amount of settlement will not affect how the attorney is paid.

[greentree]

litigation and the legal system is not good at giving advice and helping you make choices as you discovered.

yes, you can litigate the issue of your permanent disability rating and, if you decide to pursue a higher disability rating, you should retain representation.

again, by trying to retain your rating and your job you are probably working in opposite directions.
of course, there are risks as even with a lower rating a job isn't guaranteed.
Control of your job is not in your hands and until you can get some assurances from your employer as to what it would take to continue it is difficult to decide how to handle the rating issue.

are you being realistic about continued employment with the restrictions you posted?
if you were the employer, what would you do with an employee in your situation?

[upwaynorth]

Actually if I were my employee, I would keep me. In seven years I've never been sick, never been late, work weekends and holidays so other people can spend time with their families, and I've never asked for any special treatment because of my injury. In fact, I've never even asked work comp for mileage to doctor visits out of town, scheduled all appts. on my days off never asking for any compensation for missed work, etc. I am completely able to do the job I have always done and have a spotless record with nothing but past glowing praise. We have other employees who quit with no notice, can't be counted on, steal, etc. I work in accounting and sit all day so my restrictions pose no problem It's different at home, of course, where there are things to do, but in the workplace I do fine. So yes, I would keep me if I were my employer because loyalty and a job have always been my top concern.