Workers Comp And Health Insurance

[kayin]

I was hurt at work on Sept 28th 2010. I Had told store manager and the manager under her that I didn't have anyone to help unload the 1300 piece truck we had coming. I told them this 3 days prior to truck and kept reminding them. They didn't get anyone to come in till 7 am truck came in at 5 and I was hurt by 6am. I smashed my right hand(100%  ok now) and I hurt my shoulder(SLAP Tear and impingement) I went to the Dr on the 29th and they gave me limitations of lifting no more than 5 lbs. I went back to work awaiting MRI approval. I worked till Nov 9th and then a manager came in from another store since our manager was out sick and he told me I had to go out on WC disability. I was rather shocked! I was doing just fine and they were fine with me that whole month! Anyway I went out on WC, That manager said I was all taken care of and that the wc case worker would contact me the next day she never did so I had to finally contact her. So everything was going along ok, I was depressed about not being able to go back to work but my Dr said I probably just needed a Cortisone shot. We waited to see what the MRI said and thats when I went back in and he said I had to have surgery(That was in the middle of Dec 2010) I wasn't scheduled for surgery till Jan 14th! I take all my letters from the Dr into work after every appt. and give them an update. I told them I will have restrictions when I come back and was told by the manager above me that that will be ok. They just didn't want me there during the holiday season but now that that was over it would be ok. I am now being told that I might not be able to go back with limitations! My Dr said I can go back this next week but he will say no use of Right arm at all! They wont let me come back then. So that has me worried. I have worked for the company for 10 years! Anyway I have some other medical conditions that I have to take daily meds for and I needed to go to the Dr and thought to myself... I wonder if I still have medical Insurance. So I went in to ask the manager and he said Yes you do! So I didn't worry about it. Then I get a letter in the mail telling my my insurance was cancel since I was Terminated Nov 22 2010! I went into work to find out what was going on, They said I needed to call Payroll, I did and they told me that they didn't put me out on disability so they terminated me. I find this out in February 2011! They said I had to have the store manager rehire me and then I had to call my wc and file a short term disability claim. I call my case worker and tell her and she says thats through them also but I have to call another number. I call them the man takes all my info down and he says I now have to call Ca state Disability, I call them tell them the situation and they tell me they will send out the paperwork. I get it and it says DO NOT file if you are on WC! So I call and talk to someone at my wc and they say, NO you are not supposed to fill that out! SO I don't. they say after I am approved for the Short term disability and they rehire me they will take care of the rest to get my insurance and everything else(Stocks I'm buying and Profit sharing) fixed and back to date, So I get a notice from my Profit Sharing telling them that I am not fired I am on WC, she took a look and said  in the system I am still fired! This is so frustrating to me I am not able to sleep anymore and am having migraines almost daily! I cant afford my migraine meds or my Thyroid meds cause they also canceled my Prescription through where I work(Drugstore) I got a letter about my short term disability saying I was approved till Feb 22nd 2011 but that was it, so now If the Dr doesn't let me go back this month or my company wont let me come back till I have less limitations I wont have Health insurance! The money from the short term should have paid all that stuff, but since it might not help me now if I don't get to go back, will they send me a check for that? Should I get a Lawyer? I am so scared I am going to do something wrong! I have never been without a job! I am worried beyond belief! Thanks for your time!

ANSWER: You need a lawyer.  All these events needed to be put in writing back in November.  Sadly, when you are not earning a paycheck, the payments for health insurance are to come from your pocket directly to the Human Resources office of the employer.  Again, that agreement to continue to pay cash for the Health Insurance needed to be IN WRITING.  Apparently the employer told the Health Insurance company that on Nov. 22 you stopped making your contribution towards the insurance premium so to switch you to COBRA.

Sadly, there is no remedy for being upset with the Workers' Compensation system or an unfair employer, so you get no consideration for worrying.

Please hire a CERTIFIED SPECIALIST in Workers' Compensation law.  There are a lot of guys doing a lot of advertising who let secretaries practice law without a license.   Meet face-to-face with the actual lawyer before signing anything.  Do not sign black forms a clerk brings to a house; no attorney will see your claim until it's too late to file the 132a Discrimination portion of the claim!

When phoning for a Certified Specialist in Workers Comp, before meeting, get the agreement that this attorney DOES file and prosecute 132a violations... many attorneys take the injury part of the claim then tell the client to get another attorney for the 132a(wrongful termination) and no attorney will take the 132a without the injury portion also.

Sorry you work for such a terrible, unprofessional company!!!

---------- FOLLOW-UP ----------

Thank you so much for your quick response. I saw the Dr yesterday and he said I can go back to work but no use of right arm(Thats how I worked for 1 month after I was hurt and it was ok with them) They told me after Christmas I could come back with any limitations! I wish I had gotten that in writing cause now they say I have to be 100% to come back! I never got anything asking me to pay for my insurance myself which I surely would have done. When I found out they had terminated me in the system so I lost my Ins. I called and they said oh well you have to file for a short term disability they said that will pay your insurance! They never told me that at all ! Now since my short term disability only went from Nov to Feb I still cant get insurance cause they wont let me go back to work! So Now I am waiting for the payroll dept. to call me to get a check for my short term disability mailed out to me. They cant pay my insurance since I am not going back so that money should come to me correct? They "rehired" me in the system after I found out I lost everything(Insurance my stocks and my profit sharing) Do I still need to file a 132a? Thank you for your advice! I just want to go back to work! I've worked there for 10 years! It really hurts them doing this to me. Thanks again!

ANSWER: An employer has the right to refuse to create modified duty.  The employer can insist you be released with no restrictions before accepting you back to work(no matter what verbal offerings were made earlier).

When an employer refuses to provide temporary modified work, the COMP INSURER owes you Temporary Total Disability, if you're in California.     You have no obligation to request private disability insurance to pay.

If you're in California, you should have filed for an Expedited Trial to get an award of Temporary Total Disability indemnity due from the Workers' Comp Carrier(NOT the Employer, the employer's Comp Insurance) by now.

Since you probably can't figure out how to do that on your own, you really need a certified specialist.   You need to find a Certified specialist in Workers comp to file a DOR for an Expedited Trial, plus file a 132a Petition for the termination before one year passes.

Sorry, I'm not grasping your question 'they can't pay my insurance since I am not going back so that money should come to me correct'.   

You REALLY need the 132a petition litigated right away to find your stocks and profit sharing; that should not just disappear as the result of a work injury(not in California, anyway).

---------- FOLLOW-UP ----------

Another and last question....... Since I told my store manager and then also the manager under her, that I was going to be the only one unloading the truck 3 days prior then 2 days prior and reminded them on the night before and they still didn't get anyone to help is that a case for This.... employer negligence called serious and willful? They had some other manager from another store come in at 7 am truck comes in at 5 am and I was hurt by 630 am.... That manager told me that he told them he could come in at 5 am and the store manager told him no come in at 7 am ! And she knew full well I was going to be the only one unloading the truck!

[wesley64]

Sadly, there is no 'Negligence' in Workers' Comp; it is the nearest we have to a no-fault system.  

There IS 'Serious & Willful Misconduct" of the Employer; you have to PROVE that the Employer KNEW you would get hurt.   Proving what is in the employer's mind is almost impossible.  You need an OSHA safety rule violated, or a memo from a person of authority that an employee would soon be injured if the situation wasn't remedied.  

Here, the employer could say they had no idea you would be hurt just because you were unloading a truck alone.  Workers unload trucks alone every day and don't get hurt.  

I cannot see from these facts how you would prove that the employer was certain you would be hurt and sent you into harm's way anyway.

Given the facts noted earlier point out a classic LaborCode 132a violation, you should put you time and efforts into proving the 132a violation(and not pick a battle nearly impossible to win).

You're going to have a VERY DIFFICULT time finding a Certified Specialist willing to take the 100s of hours it will take to prosecute your 132a claim...spend your energy finding a lawyer for the 132a and then discuss with them any possibility of proving that the employer KNEW you would be hurt unloading by yourself.