Over the last few years, our South Carolina workers’ compensation lawyers have heard many injured workers who called us to ask questions about their claims say something to the effect of, “I know I probably need a lawyer but I’m scared to do anything which might get me fired.” There’s no question that this fear has become more common as our economy has continued to struggle since the reckless banking industry almost ruined the country with a real estate scam that will go down as one of the biggest mass frauds in history. (If you’re wondering why protesters have been taking to the street to occupy Wall Street, it’s because we should all be mad as hell about the criminal fraud perpetrated by some of our country’s wealthiest institutions.) Like most Americans, I remain convinced that our country’s economy will recover with time because I know first-hand the true grit of the American worker from growing up in a blue-collar family and from representing thousands of injured workers at the Joye Law Firm. However, with a national unemployment rate north of 9% and an even higher South Carolina unemployment rate of over 11%, it’s easy to understand why many workers are reluctant to rock the boat.
Realities, myths and considerations about reluctance to hire a lawyer for a work injury
I would like to address some of the realities behind this fear, some of the myths, and some things you should consider if you are an injured South Carolina worker debating whether you should hire a lawyer to help you with your claim.
First, it’s true that we have seen some companies fire their workers as the result of being injured on the job. I once had a roofer who sustained severe fractures of both of his arms from falling off of a roof tell me, “the boss always said, ‘if you fall off a roof, you’re fired before you hit the ground.’” How likely it is that you will be fired due to a work injury depends on the sort of company you work for. Companies tend to be a lot like people (and especially the people who run them) – there are some very good ones, some average ones, and some that are just flat-out sorry. If you work for a company which consistently treats its employees poorly, you are much more likely to be fired because you had the audacity to get hurt. I will say that I have found that the smaller the company, the more likely it is that you will be fired, especially if your work injury was severe. This makes some sense as a smaller company may find it more difficult to cover for an injured worker for a prolonged period of time.
Can you be fired while out of work with a work related injury?
Another myth I’ve often heard injured workers spread is “I can’t be fired while I’m out of work due to a work injury.” Oh yes you can be. South Carolina is an at-will employment state and the mere fact that you are out of work due to a work injury does not prevent your employer from firing you, especially if they claim there was cause for doing so (such as unexcused absences, violation of safety rules, a failed drug test, insubordination, etc.) As an injured worker, you are still covered by the Family Medical Leave Act, or FMLA. Under FMLA, an employee of a company with 50 or more employees (or an employee of a federal, state, or local government agency) may receive up to 12 weeks of unpaid, job-protected leave during a one-year period for the birth of a child; a serious health condition; or the care of an employee’s spouse, child, or parent for a serious health condition. Understand that just because your “serious health condition” was due to a work injury does not prevent FMLA from applying. Once your 12 weeks of job protection have been used, your employer may legally fire you even though you’re out of work due to a work injury.
What happens if you miss more than 12 weeks of work?
Since most workers with severe injuries like herniated discs, a rotator cuff tear, a torn meniscus, or severe fractures will miss more than 12 weeks, why aren’t more injured workers fired while they’re out of work recovering? I’m convinced the main reason this doesn’t happen more often is that employers (and especially workers’ compensation insurance companies) know that their exposure to pay higher disability settlements is increased if the worker does not return to work. Also, one of the ways the insurance company can try to cut off the injured worker’s weekly disability benefits checks is by having the injured worker return to a “light duty” job. Over the years, I’ve seen some absolutely ridiculous “light duty” jobs created, and I’ve also seen instances where the worker was fired “for cause” shortly after they went back to a supposedly “light duty” job.
In addition to the likelihood that an injured worker fired by his employer will be able to recover an increased amount of permanent disability benefits, there is another legal claim the worker may be able to pursue outside of the workers’ compensation claim. This would involve a lawsuit against the employer for “retaliatory discharge.” Under S.C. Code Ann. section 41-1-80, it is illegal to fire or demote someone because they filed a workers’ compensation claim (or testified in a workers’ compensation case) in “good faith.” It is important to note that there is a short one-year statute of limitations for these cases. In such instances, an employee may sue his or her employer for back wages and reinstatement. It is rare to see the employer reinstate a worker who brings one of these cases as most companies will prefer to pay a higher amount for a release and an employment resignation.
Will my hiring a workers’ compensation lawyer make it more likely that my employer will fire me?
One question you may be asking as an injured worker is “will my hiring a lawyer make it more likely that my employer will fire me?” I would argue that there is no proof that this is the case. Understand that in a workers’ compensation claim, 95% of the worker’s attorney’s dealings are with the workers’ compensation insurance company, and not with the employer. I would also contend that hiring a lawyer may actually give you more job security while you recover from your injury as your employer may be less likely to fire you if it knows that you have an attorney protecting your rights.
Whether you should retain a South Carolina workers’ compensation lawyer is relative to your injury
At the end of the day, whether you should hire a lawyer will depend largely on how badly you have been hurt. If you have sustained a severe injury (and especially one requiring any surgery) and you will have future medical treatment needs, it is absolutely critical that you hire an experienced lawyer to help you. The South Carolina Workers’ Compensation Act’s medical coverage provision was made much more complicated by changes to our law in 2007. In my opinion, it is almost impossible for an unrepresented worker to protect his or her future medical rights now without having a good workers’ compensation lawyer to help them. This is true even if you have been able to return to work. If you are in this situation and you’re concerned about how to tell your employer you have hired a lawyer, consider this if it’s true in your case: “I enjoy working for this company and I hope to be here for years to come. I hired a lawyer to help me with my claim because I want to make sure my medical treatment for my injuries is covered in the future. I can’t afford to be without medical coverage for these injuries.”
A second situation where you should always hire a lawyer for a work injury is when you believe there is any chance you may be partially or totally disabled due to your work injury. Very rarely is an insurance company going to voluntarily pay you benefits for permanent, partial or permanent and total disability. Even if this somehow did occur, failing to have an experienced workers’ compensation lawyer will result in a failure to properly pro-rate your workers’ compensation settlement, which could result in your family and you forfeiting the vast majority of your Social Security disability benefits entitlement for many years. That is not a mistake you can afford to make.
If you’ve suffered a serious South Carolina work injury, I urge you to call the workers’ compensation lawyers at the Joye Law Firm. Over the past 40-plus years, we’ve helped thousands of injured workers recover the benefits and receive the medical coverage they need. Just Call Joye by calling (888)324-3100, or you can fill out the claim form on this website. The initial consultation on your claim is free and there is never a charge for our services unless we obtain a monetary recovery for you.