I DO NOT WANT TO FILE A WORKERS COMPENSATION CLAIM BECAUSE I FEAR I WILL GET FIRED

Posted by Ruben MontoyaJun 17, 20220 Comments

I hear too often that our clients did not want to file a workers compensation claim because they feared they would get fired.  Most of this clients are now doing so because they were actually fired.  The first thing to know is that when you suffer an injury it is your RIGHT to file a workers compensation claim.  As any other right it is legally protected.  If anyone takes any action against as retaliatory behavior for filing a workers compensation claim once you suffered an injury they are infringing on a right.  Therefore they will be liable for civil damages as well in civil court.  So now you have two lawsuits 1) Workers Compensation and 2) Employment claim.  

What happens if I did not report an injury before I was fired? This becomes for difficult to overcome.  The scenario that the workers compensation will try to implement is that you did not file a workers compensation claim because you are injured you filed it because you were fired.  This is very common.  In fact it is a legitimate defense called "post termination defense".  How can we prevail if I did not report it prior to my termination? We gather evidence such as medical records showing an injury occurred that day, we attain witnesses, etc...  We have to gather evidence to show a judge that in fact you suffered the injury and you did not file it because you were scared of termination.  As you can see this will be a lot easier if you report it.  Let me give you a scenario: 

Scenario 1: Worker (W) gets injured on the job.  He does not report it to employer in fear of getting fired.  There was two witnesses that saw the accident.  There was video surveillance at the location.  He goes to the doctor and reports that he is having pain to certain body parts.  He returns work but due to the injury and the restrictions with it he is unable to perform to the standard of the employer.  Due to such lack of productivity W gets fired.  He now wants to file a workers compensation claim.  In this scenario we have three ways to establish that applicant did in fact suffer an injury (1) witnesses; (2) video; (3) medical evidence.  We would subpoena all three and establish injury.  What if W never went to doctor, no witnesses, no video. 

Scenario 2: Same facts as above but there was no witnesses, no doctor, no video.  This would be more difficult.  Now we have to proof after the fact that W is injured and that it had to be due to his job duties.  This takes numerous months (years) to do so since we will need the treating doctor and the PQME (panel from the state in which a doctor is chosen) to determine that indeed W suffered a work injury.  

Scenario 3: W suffers injury.  Reports injury by text, email or some type of written format.  There is an accident report done.  We now have a workers compensation claim.  The employer than fires W.  W now has a workers compensation claim and an employment case against employer due to the retaliatory behavior and wrongful termination.  

At Montoya Law we will review every fact provided to us to make sure that applicant exercises every right due to his job obligations or behavior by employer thereafter.  Remember this is your right. So if you are injured report your injury immediately by text, email or any other written way.  Then call us and we will take care of the rest.  Stay safe and as always we are at your service.