I called all agency I could find on internet.

THE WCB advised me to file WC Discrimination papers. When I was fired due to being injured, I filled the papers. Had a hearing on August 16,2002. Judge told me to get a lawyer and postponed untill 11/22 can't find a lawyer can you help?

1 answer  |  asked Nov 2, 2002 2:24 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Workers' Compensation Discrimination

Let's look at the basic fact pattern first. An employee gets injured on the job. The employee files with the New York State Workers' Compensation Board to get her medical bills paid. When an employee files for WC benefits, the Board will notify the employer. In this case, the employer receives notification and then immediately fires the employee.

Under this set of facts, two different things are going on. First is the employee's claim for benefits. To get these benefits, the employee has to file a set of papers. To help obtain the benefits, the employee can hire an attorney or another type of non-attorney advocate. This type of help is pretty easy to find.

The second thing that might be going on is Workers' Compensation discrimination. It is illegal for an employer to fire (or take any other adverse action against) an employee because the employee has filed a claim for Workers' Compensation benefits. The fact pattern given suggests, but does not prove discrimination. To prove discrimination, you need to show that the reason for the firing (or other adverse action) was the WC filing. Sometimes the timing of the claim and adverse action is enough proof. Sometimes, it isn't.

To raise a claim for Workers' Compensation discrimination, you need to file another set of papers. There are attorneys that can help you with this type of claim, but they are hard to find. Most Workers' Compensation attorneys don't handle discrimination claims, but a very few do. Employment attorneys, like me, regularly handle discrimination claims, but even among these attorneys, not all handle Workers' Compensation discrimination.

In some states, you can bring Workers' Compensation discrimination claims in court. Not in New York. In New York, you bring the claim before the Workers' Compensation Board.

The Workers' Compensation discrimination law in New York State is not particularly effective because it is written in such a way as to actually discourage attorneys from taking these cases.

Even worse, the Workers' Compensation Board does a poor job with these cases. They are unlike the usual cases before the Board, and the Board's procedures make no allowances for the special needs of these cases. Further, the Board seems particularly hostile to these claims, meaning it is usually very hard to win these cases.

I'd be willing to discuss the facts of your discrimination claim with you. However, you need to understand that I will not take your case unless you have a particularly strong case.

posted by David M. Lira  |  Nov 4, 2002 09:57 AM [EST]

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