Can I be fired or terminated after a work injury or workers compensation claim? Not in Wisconsin because of filing a workers compensation claim. Of course the employer will never admit the termination or firing is due to the worker’s compensation claim.
If an injured worker is released to return to work after healing from a work injury, the employer is required to take the worker back if the employer has a position available that the returning worker can perform. The employer does not have to create a new job. The issue in a refusal to rehire workers’ compensation benefits claim is whether employer actually had a job available within the returning worker’s restrictions. Another issue is whether the injury is work-related, because if the employer or insurance company denies the injury is work-related and the judge agrees, then there can be no refusal to rehire claim under worker’s compensation. There may be a union issue if applicable, but probably no employment law claim as Wisconsin is an at will employment state. Another other option would be a potential discrimination claim under state or federal law.
Another situation is the injured worker is given permanent work restrictions at the end of healing, the employer says it has no job within the restrictions but the employee agrees. Then, the injured worker can make a loss of earning capacity and/or vocational retraining claim. In fact, the loss of earning capacity claim is only available if the employer does not take the injured employee back at 85% of the date of injury wage rate. On occasion, the employer offers a job ostensibly within the returning worker’s restrictions, but in fact the work is more strenuous. In these situations, the employer should advise his doctor, employer and attorney and if appropriate stop working. However, a good faith effort is necessary in most cases. For vocational retraining, the employer cannot have a job for the injured worker at approximately 90% of the date of injury wage rate. Then the injured worker goes to DVR, the Wisconsin Division of Vocational Rehabilitation, to investigate retraining options. Under either the loss of earning capacity or retraining situations, the first step is for the injured worker to present himself to the employer with his restrictions so then the employer must make a decision whether to offer a job or not.
In Milwaukee, Wisconsin McCormick Law Office attorneys have our client present his restrictions even if fired or terminated after a work injury. The best results in getting the most benefits occur after the employer refuses to offer a job within the permanent work-related restrictions.
