fired while still under workerscomp? North Carolina.

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fired while still under workerscomp? North Carolina.

Post  nckrystalblue on Sun Jul 19, 2009 4:17 am

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Forgive me if posting related topic in existing (old) thread is not permitted...really don't need another LLT type butt chewing Wink

Does NC have any such Tort rule or something similar?

EE was on WC since 7/07 working varied hours w/modified duty. Had surgery 2/08 and was on "filing duty" (at the job's direction) for 3 hours a day 5 days a week for the past 14 months. Suddenly the job tried to put him back to full time work cleaning (not his hired job nor "light duty"). This consisted of manual labor which caused one of the injuries in question. EE was trying to enforce his restrictions by asking for work within those limits but job kept taking advantage of his lack of English skills and lied, coerced and threatened him to do whatever they told him, often at risk to himself and others (have proof of same). His lawyer (no longer of record) also advised him to stick by his restrictions, give them a copy anytime they asked him to work over them and not do anything that was listed. Job fired him for "refusal to work" but he didn't refuse to work, just to do work outside of his restrictions.

Really could use as much info as possible on this matter for next week's hearing.
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Sun Jul 19, 2009 4:40 am

Yes most states have some legal remedy for employees whose employers have retaliated against them for taking workers' compensation action. Many states have legislatively created legal protections for such employees. These remedies may be available through state agencies and/or in court actions. Even where legislative action has not protected such workers, many states' courts have allowed retaliatory discharge lawsuits for exercising workers' compensation rights. Some states allow both statutory and court-created or common-law remedies; other states may only provide for one or the other.
Here is a good W.C attorney in North Carolina http://www.bollingerandpiemonte.com/CM/Custom/Contact.asp
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Re: fired while still under workerscomp? North Carolina.

Post  nckrystalblue on Sun Jul 19, 2009 5:24 am

I've already talked to him and he declined the case as there was prior counsel. Unfortunately this is an issue with most lawyers but there is a legitimate case, we just think it's been messed up by incompetence and/or some type of persuasion or motive from the insurance company to the lawyers.

My question was regarding the TORT rule of Illinois from the thread I originally posted in. Is NC a tort state? Sorry, I forgot where the thread was to get specific quote.
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Sun Jul 19, 2009 5:27 am

All 50 states have tort law I suggest talking to prior counsel if that is what he told you.
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Re: fired while still under workerscomp? North Carolina.

Post  nckrystalblue on Sun Jul 19, 2009 5:46 am

Unfortunately, PRIOR counsel means he's no longer of service.

Nobody TOLD me anything about TORT, I read it in the thread I originally posted in and wondered if it applied in NC too. Do you remember where you pulled this post from so I can go back and quote what I'm talking about?
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Tort Claim

Post  nckrystalblue on Mon Jul 20, 2009 1:54 am

Is "refusing to commit an unlawful act or for performing some act which is protected by statute or public policy" what one is doing when they refuse to do work beyond the limits set by the doctor?

Does this apply in NC and where can I find the statute, rules, info etc. for this?

What does TORT mean?

What is public policy and how is it enforced?

Where can I find the code/rules for "at will" employment and the exceptions?


Hope this helps clear up my question.
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Mon Jul 20, 2009 2:30 am

nckrystalblue wrote:
1. Is "refusing to commit an unlawful act or for performing some act which is protected by statute or public policy" what one is doing when they refuse to do work beyond the limits set by the doctor?

2. Does this apply in NC and where can I find the statute, rules, info etc. for this?

3. What does TORT mean?

4. What is public policy and how is it enforced?

5. Where can I find the code/rules for "at will" employment and the exceptions?
.
1. Neither in most cases. If the employer has a job and the employee has a note from a doctor detailing the restrictions. In most cases the employer can (a) lay off the employee for not being able to perform. (b) Follow the doctors instructions and provide light duty if available. If the employer ignores the doctors note and the employee is subsequently injured it could give rise to a tort claim. Or it would be workman’s comp claim. Only an attorney in your state can determine that.

2. I have already given that to you, review the statutes I linked.

3. http://topics.law.cornell.edu/wex/tort All 50 states have tort law however in most cases on the job injuries are trumped by the workman’s comp statutes. However firing an employee in some states as I previously wrote for filing a W.C claim could give rise to a tort with common law remedies. Illinois has it codified in statute North Carolina may not. So do not post an Illinois statute on North Carolina thread.

4. Public policy is enforced through the courts. When there is no current statute a Judge has with in his discretion to find for the plaintiff or defendant as a matter of public policy. For a very loose example: it is illegal to discriminate against a minority if the employer has 15 or more employees under federal law. Say an employer discriminates against a minority but only employs 10 people. The judge has in his discretion to wave the 15 employee cap and declare the public policy of the state bars discrimination of minorities therefore the case would move forward as a violation of public policy, and not a civil rights dispute.

5. See answer to #2 for further research go to the local law library and ask the law librarian they are very helpful. Or as I previously told you find an attorney.
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Re: fired while still under workerscomp? North Carolina.

Post  nckrystalblue on Mon Jul 20, 2009 3:31 am

Sorry if I'm asking for the same information in different posts. Sometimes it's easier for me to keep straight that way. This case is in itself a more than full time job, not to mention I HAVE a full time job and 3 kids to contend with on my own. There just aren't enough hours in the day to do all I need to never mind to read everything I'd like to.

1. Neither in most cases. If the employer has a job and the employee has a note from a doctor detailing the restrictions. In most cases the employer can (a) lay off the employee for not being able to perform. (b) Follow the doctors instructions and provide light duty if available. If the employer ignores the doctors note and the employee is subsequently injured it could give rise to a tort claim. Or it would be workman’s comp claim. Only an attorney in your state can determine that.
Regarding (a) the ER did not choose to take this route although it would be within their rights.
Regarding (b) the ER followed the Dr.'s instructions for 14 months and had him work 3 hours a day filing papers. This was obviously make work for him as the office staff normally did that work. The ER DID ignore the notes from the beginning and he was subsequently injured. This is the restriction he was trying to have met that caused his termination. (See post about restrictions) He originally tried to pursue it as a WC claim and they paid for 3 visits but stopped all treatment when he was referred to a specialist. After that, the ER tried to convince him he had no injury because he had no claim therefore he had no restrictions and could do whatever he was told to do.

3. http://topics.law.cornell.edu/wex/tort All 50 states have tort law however in most cases on the job injuries are trumped by the workman’s comp statutes. However firing an employee in some states as I previously wrote for filing a W.C claim could give rise to a tort with common law remedies. Illinois has it codified in statute North Carolina may not. So do not post an Illinois statute on North Carolina thread.
I realize I posted an Illinois statute because I was referring to it to see if it might have a similar law in NC. I know that their codes don't apply here. I have only heard of TORT with regard to auto-accidents and didn't really know what it meant.

Obviously the employer is not going to say "You're fired for filing a claim" so how does one prove that their behavior and the real reason you were fired is because you got hurt and cost them money?

Really, we would LOVE to find a lawyer willing to fight for this EE's rights on all aspects of this case but he has been left in the cold by 3 so far after they all took his case, told him he has a good claim, that the ER was breaking rules/laws and that they would have to pay in the end for what they were doing to him. We really believe there is something going on and everyone is working together and hiding critical information but we don't know exactly what or why. We've uncovered some information even the lawyers didn't know about and when it was presented to them they said "what do you want me to do about it?" It really feels like everyone is playing games with this guy and his life is turned upside down b/c of his injuries. They stopped his checks and now he's not working, his savings are tapped out, his family is out of country and his only work skills are manual labor type jobs which he cannot do any longer.

I'm here asking questions because I need information since we're doing this alone right now. I'm doing research but I agree that we really need a lawyer who will fight tooth and nail to the end. We just really don't know what else to do or where else to turn. We're not afraid to fight we just don't know the rules of the game.
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Mon Jul 20, 2009 3:38 am

I understand your frustration but this site is limted, we cant take a case to court for you all we can do is try explain the law and get you pluged in to the right people, or places. If you have been rejected by three attorneys something is wrong. Your case is either weak or something is being overlooked.

ER is that Employer or Emergency Room. Try not to use abreviations that are not familiar.
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I'm not fighting with anyone but myself...

Post  nckrystalblue on Mon Jul 20, 2009 4:36 am

by JoeC (McGruff)
I understand your frustration but this site is limted, we cant take a case to court for you all we can do is try explain the law and get you pluged in to the right people, or places. If you have been rejected by three attorneys something is wrong. Your case is either weak or something is being overlooked.

ER is that Employer or Emergency Room. Try not to use abreviations that are not familiar.
EE = Employee ER= Employer
sorry thought that was standard; funny though I had that same thought as I was submitting post.

I don't expect anyone here to try this case for him. I wish I had the knowledge to do it myself. I certainly have the passion for it. Explanation of law, statutes for reference and research and viable resources is what I'm looking for. We're trying to figure out exactly what is going on and what we can do about it.

I agree that something is wrong. Nobody has said the case is weak, has no merit, might be lost at trial or anything like that. By all 3 he was encouraged to keep up the fight. This last lawyer was even given a review before our initial consultation so he knew what he was walking into. He said he's fought the defense attorney before and won, not to worry. He still took the case and left 4 months later after hopefully not damaging the case beyond repair. (legal malpractice - researching merit of such a case)

What is being overlooked is:
1. The actual initial injury is not resolved and is getting worse (possible malpractice being researched on Dr and Nurse Case managers); 1a. Refusal of insurance company to authorize further treatment (WC statute violation? not sure...researching)
2. The employer caused a 2nd injury and treatment was denied after 3 visits to their Dr. and a referral to specialist (intentional harm - either 2nd WC or Tort as discussed) Insurance company didn't follow WC protocol for this issue even though it was reported to ER in timely manner.
3. ER repeatedly treated EE with disrespect, harassment, threats, refusal to make reasonable religious accommodations (after doing so for 4 years) and a few other things that could fall under disparaging(?) treatment...not discrimination, but the other one(EEOC and/or other agency actions being researched)
4. EE has been terminated for refusal to work when he only wanted work within his restrictions (wrongful termination or WC exception to At-Will)
5. ER appealed Unemployment (state law) and info submitted does not support refusal to work - EE has to appeal wage determination due to NC statute (forget #) stating that base year can be calculated prior to injury.

and I'm sure there's more that I didn't list here simply because it's after midnight and I'm trying to figure out how I'm going to wake up for my job in 4 hours when I'm not yet sleeping :/

I've said this case was complex and it's getting more so every day. At first we tried to keep one lawyer to do everything but then we felt it was too much for them to handle at one time and have considered breaking each action apart. We've consulted several attorneys to handle the WC aspect and the biggest obstacle is that there were prior attorney's on the case. I know the above seems like a lot but it's not just someone feeling cheated and wanting revenge. He has proof for all of his claims.

My posts are not submitted with any level of frustration or anger in my creating them and I hope they are not coming across that way. I am frustrated in that he is being taken advantage of by so many people and I'm helpless to stop it.

Hope everyone had a great weekend and has a good week ahead. Night.
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Mon Jul 20, 2009 4:51 am

No I don't believe your trying to start a fight, but I can tell by your responses you are going down a lot of dead end roads. It may not be that complex you may be over complicating it. Did you sign an agreement with this lawyer? Did he quite or did you just go off looking for other lawyers?

The thing about lawyers is what a client may think is a huge deal (like this religious angle) the lawyer for reasons he does not have time to delve into just dismiss it. Well you got to work with these guys and not second guess ever thing they do, spending hours on the Internet looking for reason why its important because a lawyer dismissed it is a waste of time. Bottom line if the lawyer says its not important it's not important. Clients have a problem understand that especially if they loose or their case is not accepted. I suggest you go back to the lawyer you started with and try to pick up the pieces and do what he tells you.
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Re: fired while still under workerscomp? North Carolina.

Post  nckrystalblue on Tue Jul 21, 2009 2:11 am

JoeC (McGruff) wrote:No I don't believe your trying to start a fight, but I can tell by your responses you are going down a lot of dead end roads. It may not be that complex you may be over complicating it.
Dead ends they may be but at least we discovered where they led and know we left no stone unturned. If we do all we can do, then we have done our best and are equipped to fight a good fight, if not a fair (equal) one.
Did you sign an agreement with this lawyer? Did he quite or did you just go off looking for other lawyers?
Yes there were agreements with all 3. Only the last was signed in my presence but I did have occasion to meet the one prior. The last two both quit. Last one quit 3 days after he got fired after telling him it was good for his case if they did (but not to provoke them). We didn't want new lawyers we just wanted the existing lawyer to defend his rights and listen to what he was saying and explain the law and rules, to keep him involved in the process not try to push a settlement when medical treatment was (is) still necessary. He only sought new counsel after they quit.

The thing about lawyers is what a client may think is a huge deal (like this religious angle) the lawyer for reasons he does not have time to delve into just dismiss it. Well you got to work with these guys and not second guess ever thing they do, spending hours on the Internet looking for reason why its important because a lawyer dismissed it is a waste of time. Bottom line if the lawyer says its not important it's not important. Clients have a problem understand that especially if they loose or their case is not accepted. I suggest you go back to the lawyer you started with and try to pick up the pieces and do what he tells you.JoeC (McGruff)
The "religious angle" came about during events leading up to the termination, not as a direct part of the WC matter. And it's only relevant because the employer had previously made the "reasonable accommodation" from the start of his employment but made it an issue when trying to provoke him to quit. We did work with the lawyers and we didn't second guess everything they did - they did NOTHING. I did all the research and found the errors in the medical reports, the inconsistent and ever changing diagnoses. I got the rules for the nurses and showed how they were negligent in their handling of the case (didn't show for apts, told the dr what to do, lied in their reports). The lawyers were told this previously, said they needed to be fired then did nothing even when given physical proof.

The reason I'm "spending hours on the internet looking for reason why it's important" (which I'm not, I have a full time job and other business here as well not just this case. Just because I'm signed in doesn't mean I'm at my computer 24/7) is because there is no lawyer doing the work. They never "dismissed it as a waste of time" because it was never relevant until AFTER they quit. I have no problem with a lawyer saying something is or isn't relevant if they're actually doing something besides billing for work they don't do. As for "going back to the lawyers you started with and picking up the pieces and do what he tells us..." they never told us to DO anything. In fact the last two never TOLD US ANYTHING- period- unless we asked and then they got upset because we asked what was going on. He's spent 2 years waiting, listening to the nurse, adjuster and job to have his injuries treated... the lawyers knew, the job knew everyone knew and nobody acted to do anything to protect his rights or stop the supervisor.

Why have rules and rights if no one will enforce them? (just me resenting the state of government)
I realize you do not know every detail, but I think you are off base with this last post. We have the right to understand the process and what is being asked of us. It is not my nature to blindly follow because that is the accepted norm. I have a brain that is not linked to the collective and I like to make informed decisions. That doesn't make me any more or less right or wrong than any other human.

So, rather than continue the thread arguing over who's version of reality is more real.... let's just agree to disagree on this point and still maintain some respect for each other.

Sleep it's past my bedtime... l8tr
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Re: fired while still under workerscomp? North Carolina.

Post  JoeC (McGruff) on Tue Jul 21, 2009 1:33 pm

Hey thats great you want to learn this stuff your right it is interesting. I suggest you invest $30.00 and purchase Hood, Hardy and Lewis' Workers Compensation and Employee Protection Laws in a Nutshell, 4th edition.
http://www.westacademic.com/Professors/ProductDetails.aspx?productid=128546&tab=6
Once you absorb that Westlaw has 100's of tittles on the topic including: state specific titles, annotated codes,treatise, and all kinds of good stuff. Check out the book section of this site.
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