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Question #8: Can my employer fire or terminate me for having an accident?

Employer's can terminate employees for many reasons, but not always legally

I don't have exact statistics, but in more than half of the injured workers that I represent, the question arises:  Can my employer fire me for having a work related accident and claim?  The short answer to the question is, well, yes.   The employer cannot, however, legally fire an injured worker specifically in retaliation for having a work related accident.  Basically, if an injured worker proves that an employer terminates the employee specifically in retaliation for having a work related accident, the injured worker may have a case against the employer. I emphasize "may" because employment discrimination cases in Virginia are very complex.  

Termination after a work accident may impact your workers compensation benefits

In addition, it is critically important for an injured worker to understand the impact of an employment termination, justified or not, on the employees workers compensation benefits.  An injured worker who has been awarded wage loss benefits and has returned to work with the employer on light duty (or with an employer that the insurer has secured for the injured worker) and is terminated for any reason should consider the impact of the termination the injured workers future wage loss benefits.  Termination does not affect the injured workers entitlement to permanent partial disability benefits or medical benefits.  However, the claimant's entitlement to temporary partial or temporary total wage loss benefits could be effected by the termination.  

When does being terminated after a work related accident effect an injured workers benefits in Virginia? 

This has been a hotly contested issue in Virginia.  In the 1970's the Virginia Supreme Court made the decision that an injured worker who is terminated for a cause unrelated to his or her work injury while on light duty is not entitled to receive compensation benefits under the Virginia Workers Compensation Act. After this decision, the Virginia Workers Compensation Commission struggled to determine  how to apply the standard set by the Supreme Court eventually landing on an analysis that, if an injured worker was fired for a "wrongful" or "egregious"  conduct, the injured worker was not entitled to ongoing wage loss benefits. This a simplified view of how the Commission handled cases through the mid 2000's, but is basically how the Commission processed the issue.  To many workers compensation attorneys who represented injured workers, this standard made some sense even if the standard was not always easy to apply to a particular case. 

In 2005, the Court of Appeals clarified, or changed, the law depending on how you look at it.  The Court basically found as follows: 

The employer needs to only show:

  1. That the injured worker's  wage loss came from the injured workers wrongful act. In other words, it was the injured workers conduct, or misconduct, that caused the ongoing wage loss, not the injured workers work related light duty work restrictions.
  2. And, the employer must show that the employee is responsible for that wrongful act.  The employer does not need to show that the act was intentional, willful or deliberate.

While the act must be "wrongful" in some way in for an injured worker to lose his or her wage loss benefits, it is not always clear if particular conduct will be considered "wrongful".  The fact that the injured worker's intentional or willfulness is not required, broadens the types of acts that an employer can terminate the injured worker.  

Tip for injured workers:  If you are on light duty as a result of a work related injury and are back working for your employer pay very close attention to your conduct and the manner in which you engage with your employer.  The current legal climate in Virginia, in my opinion, is not favorable to injured workers who are working on light duty with the employer.  Our law firm has successfully represented many injured workers who have been terminated by employers while on light duty. We have found that it is helpful for injured workers who are on light duty to keep a log of all interactions, good or bad, with the injured workers supervisors.  In addition, it may be advisable for an injured worker to have a witness for any meetings with owners, supervisors, human resource managers or anyone else with the employer who wishes to discuss the employee's conduct at work.  This, of course, is not to disparage employers.  Many employers operate with efficiency and integrity.  However, having a witness for all interactions with the employer can help if an issue arises that requires litigation and witness testimony. As one political figure once said: "trust but verify"

Recently, we represented an injured worker who worked for a large grocery store chain.  He was working on a light duty status with the grocery store and was abruptly terminated.  The employer terminated our client for conduct that occurred 18 months before the termination and after the injured worker returned to light duty work. We successfully negotiated a six figure workers compensation settlement for our client. 

When does being terminated after a work related accident not bar an injured workers entitlement to benefits in Virginia? 

Many times injured workers return to work with their employers on light duty and are terminated because the employer simply cannot accommodate the light duty work restrictions.  Being terminated in this circumstance is vastly different than the situation when an injured worker is terminated for a cause related to the injured worker's own conduct.  If an employer cannot accommodate an injured workers restrictions, many times the injured worker is terminated without knowing what exactly happens next.  Typically, an injured worker in this circumstance should file a claim for temporary total benefits and being to "market" his or or her residual capacity.  

Whether or not an injured worker is terminated for "cause" or simply is released from the employer because the worker's restrictions cannot be accommodated by the employer, it is advisable that the injured worker consult with an attorney who has experience in workers compensation cases and, in particular, has handled  cases in which injured workers are terminated after the accident.  If you find yourself in this situation, our attorneys would be happy to discuss your situation or refer you to an attorney who may be able to help you. We handle workers claims throughout Virginia.  Please do not hesitate to call our firm for assistance. 

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