A reader asks:

I have a work comp case currently ongoing for two years now. I was in a car accident while on duty for work. I just finally had my Anterior Cervical Discectomy and Fusion on May 21 2013. That is 2 yrs and 36 days after the accident. Now my company is telling me it is using my FMLA during my recovery time. My FMLA is only 12 weeks per year. According to my doctor he won’t even consider light duty prior to 16 weeks post op. Can I lose my job while I’m off? I’ve been with my company 18 yrs. Why they using FMLA for a work comp time? I’m very worried and confused.

The answer to his question is that yes he could lose his job, but it would illegal to do because he filed a workers’ compensation claim.
What he’s missing on though, is the fact that having a workers’ compensation case filed actually increases his chances of keeping his job, especially with a big injury like this.
Let’s assume that he’s not going to be back to work until January. With an injury like this he’s likely to have permanent restrictions.  If he still has a job to go back to, the case will have value.  But if he has no job to return to and suddenly can’t find work making close to what he used to make (this is called a wage differential) then suddenly the case could be worth a few hundred thousand of dollars.
For clients that want to keep their job, we make sure that the insurance company knows that the employer is making these threats.  That allows them to make clear that if the worker is let go for missing too much time, not only might they face a wrongful termination lawsuit, they increase the value and cost of the workers’ compensation claim dramatically.
So in the end, usually we are able to get the insurance adjuster or defense attorney to convince the employer that it would be a terrible idea to let the employee go.  That doesn’t guarantee anything of course and we only do it if it fits the goals of our clients, but it’s really another way that a good law firm can add value to a case that isn’t really obvious.
For you as the injured worker, the most important thing is to communicate with your attorney when these things happen and make sure that they are aware of your goals.

We are workers’ compensation attorneys who help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.

By Michael Helfand