132a Petition (California) (California)

[socalinjured]

Thanks Steve,
Can they deny my return based solely that they dont want to take the chance I will hurt myself again in the future?
Even if I have taken a Functional Capacity Eval, and exceeded the lifting requirements of the job description by the employer?

It appears they can basically do whatever they want, regardless of my tenure with the employer (over 12 years).

[postscript2]

Hi Socalinjured:

I am going through this very dilemma, however I haven't filed the 132A yet. Most AA's are quite cautious when filing as it could be construed as "frivilous" to file one for a few more bucks.

I was told in very certain terms, that there has to be a UNIFORM POLICY regarding termination of injured workers. If not, then that could certainly be a basis for continuing to pursue it as I refer to it as "picking and choosing." You've received many good answers. I'm just telling you from an Adjuster's view, having seen and dealt with hundreds of these, very few prevail. I don't actually recalling seeing one prevail over the last 20 years, but that doesn't mean it can't happen.

All employers should have "civil/house" counsel that handle the 132A complaint apart from the worker's comp defense attorney due to the conflict of interest. In most cases, as the others have already mentioned, it will settle via C&R and you will be asked to resign voluntarily as a condition to the monetary payout.

Nothing can make up for 12 years tenure with the same employer, loss of seniority and benefits! I really feel for you!!! The thought of having to start over in this tough and uncertain economy is enough to scare anyone. Have you already been terminated, or just "threatened to be terminated??? Have you reached maximum medical improvement and this is the only issue remaining???

Don't answer anything you aren't comfortable sharing over a public forum. Best of luck. P.S. I was told by Corporate Offices that it was a business decision to let me go as I was "inactive" and they needed to get rid of around 200 jobs due the recession, so as for me, it's up in the air.

Take care,
LCS

[rosellavera]

I'm going out on a limb here, but for the past five years working for DA firms, all I can tell you is that when a 132(a) petition came across the Sr partner's desk there was a lot of panic and chaos. Apparently, this was an issue feared by the partners in the firms I worked at.

[rbaird]

In one case over a 16 year career, I did find a violation of 132(a) and awarded reinstatement and back wages, but this was a public entity employer and the unusual context of rejecting the testimony of the employer's risk management person (lay person, no foundation for opinion as to lifting requirements and direct conflict in witness testimony with an adverse credibility determination). This was extraordinary. WCALJ's are reluctant to award reinstatement because it may be a difficult enforcement issue and because informal retaliation which may not be remedied is a likely result. As to how employers respond to a 132(a), an employer's general liability policy may provide costs of defense (attorney fees) and usually, there is a potential conflict of interest and so separate defense attorneys. (This is related but not identical to the idea of paid coverage for independent counsel in coverage issues--the Coumis doctrine.) Please understand I am not offering any advise specific to your situation, and I understand it may be difficult to cut your losses with 12 years of employment but from what I see, the social darwinism favoring employers has not yet run its course.

[Granny]

Hi, I am new to this forum but I should have known about it a long time ago. I have been an injured worker since 6/98; been with my employer since 1/80 (yeah, 29 years), I last worked 10/03, had elbow surgery and haven't been back to work since. My PTP P/S'ed me 3/07, the AME just P/S'ed me 4/09. My workers comp attorney's assistant (who is NOT an attorney) said 'they' don't handle matters re RTW but continues to advise me that the WC attorney has told her that they see no reason my employer has not had a RTW meeting with me. One of my questions is pursuant to 132(a) should I have been granted a RTW meeting after my PTP P/S'ed me or after my claim is settled or after the AME P/S'ed me? By the way, I'm in Southern California and am employed by a County agency. The other question I have is if I am going to (possibly) be asked to resign, is there a danger in my applying for an early (regular) retirement? My medical retirement, that would have given me half my (substantial) salary for life, with benefits) was denied due to a tiny loophole that favors the employer. Yeah, I have been without ANY income at all since March of 2007. Oh, yeah, my TTD payments stopped in March 2007 and I haven't received any PD payments. My claim pre-dates the new 2004 legislation. Sorry to be so verbose, but I'm just glad to find a forum that may be able to answer some of my questions, since my attorney's assistant can't and I haven't been allowed to speak directly to my attorney since approximately 2002. Is that legal? I know it's not fair. Thanx, Granny

[stevepsca]

You have a lot of questions there... most not under 123(a), unless you feel you have suffered discrimination and/or harrassment in the work place, due to your claim of WC benefits.

One of my questions is pursuant to 132(a) should I have been granted a RTW meeting after my PTP P/S'ed me or after my claim is settled or after the AME P/S'ed me?

You should have addressed the RTW issues in 2007 when your PTP determined you had reached P&S/MMI. There is still varying opinion on which party initiates the interactive process. The labor code does mandate a valid job offer if possible reasonable accommodation can -be made .

Statutory Requirement To Engage in Timely, Good Faith, Interactive Process

Prior to the passage of AB 2222, employers were required under the FEHA to make a reasonable accommodation for the known physical or mental disability of an applicant or employee, unless that accommodation produced undue hardship to the employer's operation. AB 2222 adds an additional statutory obligation for employers - - namely, to engage in a timely, good faith, interactive process with employees to determine effective reasonable accommodations, if any, when an applicant or employee with a known physical or mental disability or medical condition requests one. What does this mean to employers?

It is now an unlawful employment practice for a California employer to fail to engage in this interactive process. Once the employer has notice that an employee is claiming a disability (even before a disability determination has been made), the employer must engage in a dialogue in a timely manner with the employee to determine what kind of a reasonable accommodation can be made. As evidence of compliance with the law, the employer should document this "interactive process" in writing.
http://www.rjop.com/publish29.html#1a

More here http://www.rjop.com/PDF/AccommodationsI ... rocess.pdf

Oh, yeah, my TTD payments stopped in March 2007 and I haven't received any PD payments.

Why was there such a gap between your 07/MMI and AME evaluation/MMI report. ?
IF the AME addressed the MMI status of your PTP, and determined you were not MMI until 09, you could be due TTD for the unpaid period. Your DOI is 1998, you are not subject to the 104 week cap.

Have you received a PD/WPI rating to your injury...?
That is what determines the amount of indemnity you are due. The PDA's should begin within 14 days of TTD stopping. Have you received the NOPE/Notice Of Potential Eligibility of benefits from the CA ? That will tell you why the actions have been taken. And what you could expect next.

The other question I have is if I am going to (possibly) be asked to resign, is there a danger in my applying for an early (regular) retirement?

What 'danger'...?
Generally you would not be requested to resign unless you settle the claim by a C&R. If you take the indemnity bi-weekly, the medical remains available...and you RTW if the gods are willing.
Did you appeal the medical retirement denial ? Oft times those 'loopholes' can be shut. But you need the medical evidence tu uphold your contention you should be granted that retirement.

My claim pre-dates the new 2004 legislation.

Hummm...partially. There are many areas of your claim that could be affected by SB899..The information here .http://www.dir.ca.gov/dwc/WCFaqIW.html might help with some of your questons.

BTW...it might be a good idea to start your own thread... you'll receive more relevant response.