[deedlebug]

My husband has been off for a knee injury which resulted in a total knee replacement. Prior to that, he had a back injury which resulted in a lumbar fusion. He has been release by both doctors to return to "full active duty". He spoke with his boss who told him that the company headquarters would need to request his insurance records and after reviewing them would be able to make a decision. In the mean time, the WC insurance adjuster told me that his benefits would stop effective June 22, 2005. So now he has no form of income and no idea whether he has a job with his company or not. The local newspaper had a classified ad today for a position which is the exact job my husband was doing. My questions are this: 1) Does the company have to put him back to active duty if the doctor has given him full release? 2) If we hire an attorney for this matter, can my husband find employment elsewhere in the meantime so that we can have income to pay our bills?? :?: We live in New Mexico. Thanks

[aaron]

1) Does the company have to put him back to active duty if the doctor has given him full release?

Typically, the company has to offer him the position if it remains open, or the next available equivalent position if it is no longer open. If they have hired somebody to do the job, they don't have to fire that person when the injured employee is able to return to work.

2) If we hire an attorney for this matter, can my husband find employment elsewhere in the meantime so that we can have income to pay our bills?

His finding new employment shouldn't affect his ability to make a claim; it might reduce his damages, but if he doesn't find alternative work he might be accused of failing to mitigate his damages. These are issues you should discuss with the NM workers comp lawyer.

[deedlebug]

My husband spoke with his employer after my last post and was told there was no decision yet. He showed the help wanted ad to his boss and his boss said "yeah, I need help". My husband said "Well, here I am - ready to go back to work". The boss said "but they won't let me put you back to work until they review the records". My husband said, " I guess you'll be hearing from my attorney then" and he left. My husband then consulted with an attorney who told him to give them a couple of weeks to decide if he could go back. Today he talked to the boss and was told that when he told them he was going to an attorney, as far as they were concerned, his job was terminated!!! Doesn't this fall under wrongful termination and other possible violations?? Just because he consulted with an attorney to try to get his job back?? He did not tell them he quit!! He just wants to go back to work. And they said if he wants his retirement, he'll have to call the company owner and request it himself!!! He should have been able to fill out the request at his local office. He has an appointment with an attorney this week...

[aaron]

A threat to sue your employer could qualify under typical state law as grounds for termination of employment. Your husband should speak to his lawyer about the situation, describe exactly what occurred, and see what rights he has under the laws of your state.