If you’re injured on the job, and directly or indirectly threatened that there will be consequences if you file a workers compensation claim, you are in a difficult situation.
The first thing to find out is whether your employer has workers compensation insurance. Most employers are legally obligated to carry that insurance. Failing to carry workers compensation insurance is a criminal offense.
An employer violating the law can face fines up to $2500 and/or one year in prison for each day that the employer does not have coverage for employees. Each day that an employer does not carry workers’ compensation insurance constitutes a separate offense. Generally this offense is a misdemeanor, but if a court finds that the failure to comply with workers’ compensation requirements is intentional, the employer may face felony charges.
An employer failing to carry workman’s comp insurance exposes the company to significant civil liability. Although employers are generally shielded from personal injury claims from their employees, this is the case only if the company has workers’ compensation insurance.
If an employee is injured on the job and the employer was negligent, the employee can sue the company in a personal injury action. If the injury is serious, the lawsuit may be much more costly for the company in the long run.
If the employer does have workers compensation insurance, but is making threats to avoid a claim to save money, the employee has some options.
If a claim is filed, and you are fired as a result, state law could help. If the claim is filed and you’re retaliated against, but in ways short of being fired, state and federal law may help.
Thirty-seven states have statutes that make it illegal to retaliate against an employee for filing a workers compensation claim. Pennsylvania is not one of them. Over the years, judges have created a “common law” claim for retaliation if the employee is fired due to his or her claim. Shick v. Shirey, 716 A.2d 1231 (Pa. 1998).
The common law cause of action exists for at will employees only. Harper v. Am. Red Cross Blood Servs., 153 F.Supp.2d. 719 (E.D.Pa. 2001). The issue of whether the Pennsylvania common law cause of action extends to mere discrimination versus a complete discharge of an employee in retaliation for filing a workers’ compensation claim does not seem to have been litigated in Pennsylvania.
If you file a workers compensation claim and are retaliated against, filing a complaint with the federal Occupational Safety and Health Administration (OSHA) may be an option. The agency, which enforces the Federal Railroad Safety Act (FRSA), along with other federal workplace safety laws, early last year rendered a decision that Norfolk Southern Railway Co. was responsible for $1.1 million in compensatory and punitive damages following a pair of whistleblower complaints that workers were retaliated against for filing workplace injury claims. The company is appealing the decision.
Since August 2007, when OSHA was given authority over FRSA whistleblower complaints, the agency has received more than 1200 such complaints. Sixty percent of them involve allegations that an employer retaliated after an employee reported a workplace injury.
You may fear repercussions if you file a claim, but if an injury turns out to be serious or difficult to treat, you don’t want to be responsible for the medical bills. If you wait a long time to file a claim, the insurance company may claim the injury was not work related and deny the claim.
If you find yourself in this situation, contact our office. We represent workers injured on the job. We can talk about your injury, your employer and your situation. After we discuss your options, you can take the course of action that’s right for you.