SUSPICIOUS TIMING: ‘LAID OFF’ AFTER ASKING FOR WORKERS’ COMP
QUESTION: A careless co-worker drove a Hi-Lo right at me several weeks ago, forcing me to dive out of the way or be run over. Luckily, he ran into a pile of crates, and not me – but I landed badly on my arm and shoulder. I asked if I could get any medical coverage through work, since I was injured on the job. My supervisor said he’d check it out. A couple of days later, I was laid off due to “overstaffing.” I’m now out of work, and looking at some big medical bills – the doctors say I need surgery on my shoulder. Is there anything I can do?
ANSWER: Under Michigan’s Worker’s Disability Compensation Act – usually referred to as “workers’ comp.” – an employer with at least three workers is generally required to provide an employee who is injured on the job “reasonable medical, surgical, and hospital services and medicines.” MCL 418.315. Your employer can’t get out of paying for your injury by laying you off. If you are unable to work for at least seven days because of your injury, you are also entitled to compensation.
It is the employer’s responsibility to file a report with the Workers’ Compensation Agency. When employers fail to file, as in your case, injured workers can report the injury themselves. A form WC-117, and instructions on how to file, are available on the Agency’s website: https://www.michigan.gov/wca/0,4682,7-191-60870—,00.html.
From the facts you’ve outlined, however, it looks like you may have an additional gripe against your former employer: It sounds like you were retaliated against for asking about workers’ comp – and that’s illegal. An employer is prohibited from taking an “adverse action” (termination, demotion, etc.) “because of the exercise by the employee … of a right afforded by [the WDCA].”
According to a 2012 case, Cuddington v. United Health Servs Inc., injured workers don’t have to say the magic phrase “workers’ comp” to exercise their rights. Asking about the availability of a medical benefit, as you did, may be sufficient. And that, combined with your supervisor’s knowledge of your request, and the suspicious timing of your layoff, may be enough to establish a case under the law. The last thing you need to make your case is evidence that your termination and your “assertion or exercise of a right under MCL 418.315(1) were causally connected.” When an adverse action follows close on the heels of a worker’s assertion of rights under the WDCA, the causal relationship is often presumed.
In the Cuddington case, a delivery driver was injured when he lost control of a van on icy roads. Although an ambulance was called to the scene, he chose not to go to the hospital. During the night, he began to feel a lot of pain, and went to a doctor the next morning. When he called in to report his absence, his boss’ wife told him: “[Y]ou ain’t hurt, if you were hurt you would have went in the ambulance to the hospital last night. If you don’t come into work, you are blanking – blanking fired.” He went to the doctor – and was terminated. The Michigan Court of Appeals ruled the driver had presented enough evidence of retaliation for his case to go to trial. (Unfortunately, at trial, the jury ruled against him.)
So why sue? A worker who wins a lawsuit against a retaliatory employer can expect to receive damages, costs and attorney’s fees – which could amount to thousands of dollars.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
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Troy, MI 48084
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