Michael Burgis & Associates, P.C.

Can you claim retaliation if your workers' comp gets denied?

As an employee in California, you have a right to protection from retaliation in workers' compensation cases. If you file for compensation after an on-the-job injury, they cannot retaliate by cutting your hours, cutting your pay or firing you, for instance. The law works this way so that you feel confident enough to file when you think you have a valid claim. Otherwise, the mere threat of retaliation may force workers to stay silent just to keep their jobs.

But what if the case goes forward and your workers' comp gets denied? Can you still file a retaliation claim?

A bogus claim

Let's start with an extreme example: A person who makes a bogus claim. He gets hurt at home while doing house work. The next day, he comes to work and fakes an injury. He then files for workers' compensation to cover the costs so that so he can avoid paying the medical bills himself.

After filing, but before the company can determine if the case is valid, they fire him to get out of paying for treatment. This is a clear retaliation, and had you been in this situation you would want to sue. Can you do so?

Interestingly, you can. It makes no difference that your initial case was bogus or frivolous. The company still violated your rights by retaliating. For that, you can sue the company, even if your initial claim for workers' compensation gets denied because they discover it did not connect to a real on-the-job injury.

Key details

What you're really looking at here is the importance of some key details. The first is that you have legal protections against retaliation no matter what. Remember, in the example above, the company thought the man had a legitimate claim. That's an illegal firing on those grounds.

You also have to think of the order of operations. The company may argue that they did not break the law because they fired someone over a false claim. That could be true if they found out it was false first and then fired that person as a result. But if they terminate someone's employment in advance, though, that's a very different situation. The order of these events becomes crucial.

Your rights

Most people would never file a bogus claim. That being said, this is simply an illustration of how far your rights as a worker  extend. If you feel like your employer has violated those rights in any way, you must know all of the legal steps you can take.

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