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Question of Retaliation for Workers Compensation Decided in Favor of New Jersey Firefighter

Question of Retaliation for Workers Compensation Decided in Favor of New Jersey Firefighter

Between 2010 and 2011, New Jersey firefighter Carl E. Larson filed two separate workers compensation claims for two separate work-related injuries. It took until February 2013, but the Paterson City Council in Passaic County eventually approved both of these claims. The total in workers compensation came to over $105,000.

In many instances, the approval of the applicable municipal legislature would bring closure to a workers compensation case, but soon after the approval of compensation and benefits, Larson needed to take two days off work, unrelated to injuries or workers compensation. This short leave initiated a chain of events that eventually led to Larson’s retirement from the city’s fire department.

As stated in his subsequent lawsuit, this was a retirement that Larson didn’t seek or desire – and in fact, was allegedly forced upon him by the department as retaliation for workers compensation claims in New Jersey.

Circumstances for Retaliation for Workers Compensation

In his original complaint against the City of Paterson alleged that the city’s fire department forced him to retire as retaliation for the two workers compensation claims filed years earlier. The facts that surrounded the claim made by former fire captain, Larson, include evidence that after two days of non-injury related leave, he was told to remain off-duty until he completed for a fitness of duty examination. Then, upon his insistence that he was prepared for such examination, the department would neither facilitate such test nor allow him to return to work.

A few weeks into this stalemate, Larson’s union representative supposedly informed him that the basis for his extended leave was the amount of his workers compensation claims. Larson further claimed that later meeting with the city’s police chief confirmed these allegations, and at this time, the police chief confirmed that the fire department’s legal department found Larson to be a liability because of his workers compensation claims and wanted him terminated from the department. The options presented to Larson were to stay on and risk losing accumulated pay for his administrative leave or retire immediately.

Given the financial inequality, Larson felt his only choice was retirement – a retirement that his resulting lawsuit tied to retaliation for workers compensation.

New Jersey Law on Retaliation for Workers Compensation

In New Jersey, there are robust prohibitions on employer retaliation against employees that file for workers compensation. Within the New Jersey Workers Compensation Act (Act) and New Jersey common law, an employer is not allowed to discharge or otherwise discriminate against an employee that files for workers compensation; those that do can face civil actions in a New Jersey Superior Court. Discharge and discrimination can take a number of different forms under this aspect of the Act.

In such retaliation claims, the employee must prove two specific elements. First, the employee tried to or successfully made a claim for workers compensation. Second, the employee was discharged or discriminated against for making the claim.

Discharge is the more blatant form of retaliation. Typically, this situation arises when an employer terminates employment within days, weeks, or a couple months of an employee’s request for workers compensation. However, constructive discharge is also considered retaliation in New Jersey. Constructive discharge is exemplified by the allegations made by Paterson firefighter, Larson. In these situations, an employee isn’t directly terminated by the employer, but through financial incentive or other harassment is given no choice except resigning or retiring from a position.

Discrimination as retaliation is harder to identify, and often more difficult to prove. Discrimination can include overlooking the employee, if a highly qualified candidate, for a promotion or reducing the responsibilities of such employee. Discrimination could be imposing stricter standards on this employee’s work or giving the employee a negative review, when actual performance was satisfactory. Each of these instances has occurred and been litigated in New Jersey, with success by the employee.

Outcome of Larson’s Case

The New Jersey Superior Court in Passaic County denied and dismissed all claims made by Larson against the City of Paterson, including a claim of retaliation for workers compensation. However, the court of appeals found differently. On appeal, the court recommended that Larson reinitiate his claim of retaliation within New Jersey’s executive branch, specifically with the New Jersey Attorney General’s Office.

This decision by the state court of appeals is not an automatic victory for Larson, who must still re-file his claim to receive a favorable determination. Yet, the decision is confirmation of New Jersey’s willingness to protect injured workers and secure their rights to a no-fault workers compensation process.

If you have questions regarding New Jersey’s law on retaliation for workers compensation, or another aspect of the workers compensation claim process, contact a top NJ workers compensation attorney at the Law Offices of Albert J. Talone. Our Moorestown, New Jersey office can be reached at (856)-234-4023.

 

 

The information in this blog post (“Post”) is provided for general informational purposes only. This information may not reflect the current law in your jurisdiction. No information contained in this Post should be construed as legal advice from The Law Office of Albert J. Talone or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.

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