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  1. #1
    Join Date
    Mar 2008
    Posts
    8

    Default Wrongful Termination And Workman's Comp

    My previous post was about my termination however now my partner was terminated the very next day.

    My partner (produce manager at a grocery store in Maryland) slipped and hurt his knee badly at work before the end of his shift (thursday, March 27). At 6:30pm he called work and asked someone at the office to contact the assistant manager of the department to come in early to cover his shift in case his knee didn't improve.

    At 3:30am the next day (Friday, March 28) he called and spoke with the manager on duty and told him that he was not able to come in that day due to his knee. We then went to the emergency room to have the knee looked at. Doctors were unable to determine whether his patella tendon was ruptured or not due to excessive swelling so they gave him a note excusing him from work until tuesday, April 1st so they could do an MRI to determine the excess of his injury. He was then given 2 pills for the pain and was prescribed oxycontin and was told to take 2 when he got home.

    After taking him back home I went in to work and handed the store manager his doctor's note and explained what had happened. I then went on to work in my department. Later on in the day I was telling a co-worker that I tried calling home to check in on my partner and suspected that he was knocked out from the pain killers because he did not answer. Just as I was saying that the store manager interrupted and said that he too just tried calling to check on his condition and suspected that I was right in saying he was probably knocked out.

    On Monday my partner had gone in to work to fill out workman's comp. He was called into the office and was told that he was fired due to failure to inform management of what was going on with his condition, however, they did fill out workman's comp. We thought the doctor's note was sufficient...wouldn't any further information regarding his condition protected under HIPPA?

    Today was tuesday and he was supposed to get an MRI, but could not because workman's comp had not been processed yet and since today is the 1st of the month his health insurance through work is no longer active.

    Was this wrongful termination? Will workman's comp cover only his health expenses? In case this leads to surgery he is not able to start looking for new employment...will workman's comp pay him for the days until he gets a doctors release?

  2. #2
    Join Date
    Feb 2008
    Posts
    1,179

    Default Re: Wrongful Termination And Workman's Comp

    Since this is a WC case, the health information is not covered under HIPAA.

    How many employees are there within a 75 mile radius? Has your partner worked for at least one year and 1250 in the last year? (Trying to check to see if he is eligible for FMLA which is 12 protected weeks...including benefits)

    What is the normal call out procedure? Did he/you follow that?

    What is the normal WC claim procedure? Does the employer require immediate notification?

    What state are you in? Some states WC insurance protects the employment status more than other states.

  3. #3
    Join Date
    Mar 2008
    Posts
    8

    Default Re: Wrongful Termination And Workman's Comp

    How many employees are there within a 75 mile radius?

    I'm not sure of the exact number but there was at least over 100 employees at the time.

    Has your partner worked for at least one year and 1250 in the last year? (Trying to check to see if he is eligible for FMLA which is 12 protected weeks...including benefits)

    He has worked 2 3/4 years with this employer, 6 days a week over 50 hrs regularly.

    What is the normal call out procedure? Did he/you follow that?

    Yes, he followed the procedures for calling out.
    Normal call out procedure is to call a.s.a.p. and to speak with any available manager at the time to inform them of the absence to ensure proper coverage.
    At the time the available manager was the grocery dept manager which he contacted at 3:30 am. Then I followed up by making 2 phone calls while my partner was being tended to by the emergency room staff. I spoke with my partner's assistant manager and with my co-worker to inform her that I will be late...at this time the store manager was at her side and I asked her to relay the information to him which I heard him acknowledge in the background.
    Also, after getting my partner back home I rushed to work and hand delivered the doctor's note to the store manager which excused my partner from work until further notice on Tuesday, April 1st. I then explained to the store manager what happened and notified him that he was given 2 pain killers at the emergency room as well as taking 2 more before I left him at home and that he may be knocked out.
    My partner then called personally on Sunday and spoke with an assistant store manager telling him that he will be in the following day regarding filing for workman's comp.


    What is the normal WC claim procedure? Does the employer require immediate notification?

    He was actually contacted by the WC people today and was interviewed over the phone. He was told that they were conducting an investigation and will notify him of their findings.

    What state are you in? Some states WC insurance protects the employment status more than other states.

    We are in the state of Maryland.

    Thanks in advance for you attention.

  4. #4
    Join Date
    Feb 2008
    Posts
    1,179

    Default Re: Wrongful Termination And Workman's Comp

    I would be concerned that he wasn't offered FMLA, because it sounds like the employer is covered and the employee is eligible. The employer had enough information to know this was an FMLA covered situation. By terminating him, they took away his protected rights to FMLA. He needs to be talking to the state dept of Labor.

    Unfortunately, I don't think that protects your termination, only that of your partner.

  5. #5
    Join Date
    Jul 2005
    Location
    Texas
    Posts
    254

    Default Re: Wrongful Termination And Workman's Comp

    Quote Quoting hr for me
    View Post
    I would be concerned that he wasn't offered FMLA, because it sounds like the employer is covered and the employee is eligible. The employer had enough information to know this was an FMLA covered situation. By terminating him, they took away his protected rights to FMLA. He needs to be talking to the state dept of Labor.

    Unfortunately, I don't think that protects your termination, only that of your partner.
    The OP needs to file a complaint with the Federal DOL not state as they enforce FMLA

  6. #6
    Join Date
    Apr 2007
    Location
    Il.(near StL,Mo.)
    Posts
    5,252

    Default Re: Wrongful Termination And Workman's Comp

    Agree, FMLA is a federal law.

  7. #7
    Join Date
    Feb 2008
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    1,179

    Default Re: Wrongful Termination And Workman's Comp

    Quote Quoting mlane58
    View Post
    The OP needs to file a complaint with the Federal DOL not state as they enforce FMLA
    You are very correct....I mistyped that one!

    And here is the regulation that talks about unforeseeable need for leave:
    "When the approximate timing of the need for leave is not
    foreseeable, an employee should give notice to the employer of the need
    for FMLA leave as soon as practicable under the facts and circumstances
    of the particular case. It is expected that an employee will give notice
    to the employer within no more than one or two working days of learning
    of the need for leave, except in extraordinary circumstances where such
    notice is not feasible. In the case of a medical emergency requiring
    leave because of an employee's own serious health condition or to care
    for a family member with a serious health condition, written advance
    notice pursuant to an employer's internal rules and procedures may not
    be required when FMLA leave is involved.

    (b) The employee should provide notice to the employer either in
    person or by telephone, telegraph, facsimile (``fax'') machine or other
    electronic means. Notice may be given by the employee's spokesperson
    (e.g., spouse, adult family member or other responsible party) if the
    employee is unable to do so personally. The employee need not expressly
    assert rights under the FMLA or even mention the FMLA, but may only
    state that leave is needed. The employer will be expected to obtain any
    additional required information through informal means. The employee or
    spokesperson will be expected to provide more information when it can
    readily be accomplished as a practical matter, taking into consideration
    the exigencies of the situation."
    http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.303.htm

  8. #8
    Join Date
    Mar 2008
    Posts
    8

    Default Re: Wrongful Termination And Workman's Comp

    Update:

    thanks to everyone for all the input! My partner and I went to see an attorney today and he took the case. I did mention the info regarding FMLA (including the info regarding the company's own call-out procedures).
    The attorney said he would contact my partner's previous employer so at this point we are just waiting to hear back from him.

  9. #9
    Join Date
    Mar 2008
    Posts
    8

    Default Re: Wrongful Termination And Workman's Comp

    Thanks for the info HR For ME.

    Here's an update of what has happened so far.

    Someone from worker's comp called and interviewed my partner yesterday and said that they will conduct an investigation. Later on in the day a former co-worker of mine informed me that management had her talk to the worker's comp regarding the investigation...asking what she knew ect. I thought it was odd because she works in a different department/different bldg from my partner. I do not know if they spoke with the 3 other people that we informed from inside the actual grocery store (one of which was my partner's assistant manager). My partner had called the night before and at 3:30 the next morning, meanwhile I called and spoke to his assistant manager while we were at the emergency room twice as well as calling my co-worker twice.

    We've heard word from friends that management was telling people that my partner was fired for a "no call no show" and I believe that is what they told the investigator for workman's comp as well so I printed out a copy of our home telephone records showing the times/dates/duration of phone calls that we made to work to alert them of the absence.

    We have yet to hear from worker's comp on their decision and my partner is under too much pain so we went ahead and used our health insurance through work (it turns out that we have until the end of april to use it). He is now scheduled for surgery on Monday. A tendon was torn and needed to be fixed.

    I'm not so much concerned for my termination because I start a new job next week, but my partner and I believe that his termination was not only unfair, but also illegal.

    Could anyone provide advice on where to go from here? Would speaking to a wrongful termination lawyer be our next step? Or should we pursue workman's comp?

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