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Workmans Comp And Fmla

Workers Compensation Law Discussion

Workmans Comp And Fmla

Postby Folant » Mon Dec 05, 2016 4:06 am

i was hurt on the job oct 29th 2009 with a knee injury,got back to yard and filed injury report the same day.Been on w/c ever since, had surgery on knee jan 20th of 2010 that was approved by w/c, went to doctor appt. on feb 1st and set another appt. for march 8th. and said i would start physical therapy. My question is, i just got a letter in the mail today from my employer saying that they are designating my leave as fmla from the first of january 2010 foward.is that legal? and what can i do.?
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Workmans Comp And Fmla

Postby Daveon » Thu Dec 08, 2016 5:01 pm

i was hurt on the job oct 29th 2009 with a knee injury,got back to yard and filed injury report the same day.Been on w/c ever since, had surgery on knee jan 20th of 2010 that was approved by w/c, went to doctor appt. on feb 1st and set another appt. for march 8th. and said i would start physical therapy. My question is, i just got a letter in the mail today from my employer saying that they are designating my leave as fmla from the first of january 2010 foward.is that legal? and what can i do.?
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Workmans Comp And Fmla

Postby Farnell » Mon Dec 12, 2016 3:27 am

You would have to file a Petition for Increased Benefits Pursuant to Labor Code 132(a) to try to leave your FMLA leave rights untouched, and most need a lawyer for such a complicated petition.

Sadly, the FMLA language states the employer may require the employee to use the FMLA Leave Time for any extended absence(so Work Injuries are NOT excluded in the FMLA statute language).

I cannot find California Workers' Comp case law where a Workers Compensation Appeals Board Judge has ruled on exhausting FMLA Leave being an act of discrimination.  Or not.

So YOU could be the 'Test Case' if you wish, asserting in your petition that use of your FMLA Leave as the result of an industrial injury is an unlawful act of discrimination in retaliation to your request for Workers' Compensation benefits.

The trouble is, you have to show the employer's 'state of mind', that the reason the employer exhausted your FMLA Leave as part of your Workers Comp disability leave was to retaliate and discriminate against you because you reported a work injury.

This is tricky.

The employer will show that EVERY person -- even those NOT hurt on the job -- gone for more than a week uses up their FMLA leave alotment.

Where the employer treats YOU like everybody else, it's impossible to show discrimination.  

But -- maybe --  a judge could find that use of the FMLA for a person hurt on the job is unreasonable when the employee is trying to return to full duty and refused because the insurer's MPN physician refuses to allow the employee to return to work.  

NOW, the really tough part:   Can you find an attorney willing to try that petition and see how for it goes?

Many of my colleagues refuse to prepare, serve and file 132a Petitions because to prosecute a 132a claim takes three times the hours for one-third the fee.  We could make more money working at In-n-Out than we get on most 132a Petitions.

BUT it is a possibility!  IF you a judge agrees with you that the employer using up your FMLA Leave against your will is a violation of Labor Code 132a, you get an increase in your Permanent Disability award PLUS re-instatement of the lost benefit.

You might want to WRITE(never call, always write) the employee, tell them you object to use of your FMLA Leave concurrent with workers' comp temporary disability, that if your FMLA Leave time is not re-instated you will be filing a 132a Petition, that employers are NOT insurer against 132a petitions with regular workers compensation petitions, and it would be most cost-effective to simply reinstate your FMLA Leave than hire counsel to answer and defend a 132a Petition...

That's what I'd do.
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