Workers’ Compensation 12 : Retaliation

Q: In the boiler room of the hotel where I worked, I hit my head on a pipe.  When I told the owner’s wife that I needed to seek medical help, she told me, “No, no, back to work.”  Shortly thereafter, I made a claim for workers’ compensation benefits, and right after that I was fired.

 The Workers’ Compensation Board found that my firing was retaliatory.  Once reinstated to my job, I asked for an award of damages, in the form of back pay for the intervening three years, in addition to attorney fees.

After a very long delay, a Workers’ Compensation Law Judge held a hearing and granted my request.  The award also included thousands of dollars in interest from the dates my wages should have been paid, to the date of the damages hearing.  Now, my employer is saying that this award of interest was not authorized by statute.

A: Under section 120 of the Workers’ Compensation Law, it certainly was unlawful for your employer to discharge or discriminate because you had made a claim for benefits.  The Board did well to restore you to employment and to grant back pay and attorney fees.

Ordinarily, in a workers’ compensation case, pre-decision interest is not recoverable.  Most of the provisions of the W.C. Law are designed to provide specified money allowances – not to make you ‘whole’.  Ordinarily, a claimant is entitled only to interest that accumulates after the decision.

But claims based on retaliatory discharge or other forms of discrimination are deemed to be on a pedestal.  There, the compensation may indeed include pre-decision interest: when it comes to discrimination, even though the Legislature did not specify the components of a back pay award, the Legislature wanted you to be made whole.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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