Both employers and injured workers are unsure about the law on firing an injured worker who is actively treating with a doctor on an accepted workers’ compensation claim in Nevada. Most people know that an injured worker cannot be fired simply because he or she files a claim for workers’ compensation benefits. There is an old case from the Nevada Supreme Court that allows an injured worker to sue his employer for money if he can prove that the employer fired him for filing a workers’ compensation claim. Not too many employers are apt to make the mistake of not having some other reason, real or not, for terminating an injured worker. In the past, I’ve only encountered one employer who wrote on a termination notice that the employee was fired because he "filed a comp claim".
Most job terminations instead result from an injured worker not wanting to work temporary light duty work that the employer offers to accommodate the physical restrictions given by a doctor. If the temporary light duty work is mindless, and it’s a hassle for the injured worker just to get to work, bad feelings quickly develop between the employer and the injured worker.
It may seem like the light duty job is punishment for getting hurt at work and filing a claim. And maybe the employer’s light duty work program is a thinly veiled threat to employees not too file claims or to get hurt at work. But, the law only says that permanent light duty job offers cannot be demeaning and degrading. Permanent light duty jobs have a completely different set of rules.
Employer can create "special jobs" just for injured employees with open compensation claims and point to statistics that show that injured workers on light duty get better faster. That means that the employer can have a policy or rule that injured workers who refuse temporary light duty (and who don’t have any FMLA, or vacation or personal time left) can be disciplined, including fired.
In general (and you should seek individual legal advice for your circumstances), Nevada employers can and will fire employees who are working light duty jobs after their job accidents if they have a good reason for firing the employee. Again, common reasons given by employers pertain to the employee for not showing up for light duty work, calling in sick too many times, and not performing the light duty job.
The present statute allows insurers to deny compensation benefits to injured workers who are fired while working temporary light duty, if the insurer denies compensation benefits within 70 days after learning about the job termination. Benefits should only be denied if the injured worker was fired for gross misconduct., but insurers routinely deny benefits for any kind of job termination and bet on the employee not appealing.
Employees who complain that their injuries prevent them from going to work at all, need to be aware that their employer is entitled to rely on the treating physician’s progress report . If that report says the patient can work with restrictions, and the employer offers such work, the injured worker won’t win any battles that depend on self-serving statements of his inability to work light duty, Employers, and hearings and appeals officer will rely almost exclusively on the physician progress report. For example, if the progress report doesn’t restrict the number of hours an employee can stand at work, the employer can assume that the employee can stand for his entire shift.
The injured worker must make sure that the treating doctor is aware of what kind of work the employer is likely to offer so that they injured worker can request restrictions that make sense. Instead of complaining to the employer that he cannot do temporary light duty work, the injured worker should quickly return to see his physician to discuss any necessary additional restrictions. Meanwhile, the employee should try to do the light duty work. Not showing up for light duty work may get the employee fired, and it will be a legal fight to get benefits.
I have had a lot of success in obtaining compensation benefits for employees who are fired during temporary light duty. Employers and insurers don’t always know or follow the law. However, an injured worker doesn’t want to go without a paycheck or a comp check while filing an appeal. The best course is to show up for the temporary light duty job, get any necessary additional restrictions from your doctor, and to quickly get a free consultation with a lawyer to discuss your particular case. While you still may have to do some kind of temporary light duty eventually, your attorney may be very helpful in guiding you through these problems.
–Written by Virginia Hunt, Hunt Law Office