Workers’ comp: Retaliation for seeking medical help is a definite no-no
November 13, 2012
Article courtesy of SBAM Approved Partner ASE
By Michael J. Burns
The Michigan Workers’ Compensation Act (WDCA) has consistently protected employees from discipline or discharge for filing a WDCA claim due to a work-related injury. A recent case underlined that stance for anyone who may still doubt it.
In the case at hand, Raymond Cuttington vs. United Health Services, Inc. (October 25, 2012 Published), the Michigan Court of Appeals said, “The primary purpose of the WDCA as a whole is to ‘promptly deliver benefits to employees injured in the scope of their employment.’ ” The question in this case was whether or not the WDCA protected an employee for seeking out medical services from an injury received while at work.
The plaintiff, Raymond Cuttington, was a service and delivery technician whose job required him to deliver and set up medical equipment. One day as he was returning from a delivery he got into an auto accident. He called his employer, whose owners came to the scene of the accident. They found Mr. Cuttington in the ambulance with a split lip and some facial abrasions. They advised him to go to the hospital. However, Cuttington decided he was good enough to go home, declining care and a trip to the hospital. Later that night he experienced pain in his shoulder and neck. In the morning his wife called in to inform the employer that he would not be in and, speaking to the secretary, told the employer that Cuttington was going to his doctor that morning. The owner called back a few minutes later and spoke to the him about not coming to work, and when Cuttington explained he had some pain the owner advised him to see a doctor. However at that point the owner’s wife got on the phone and told Cuttington to get to work, that he was not injured, and threatened to fire him if he did not come in to work.
Cuttington declined and went to his doctor, who, it turned out, could not see him that morning due to a medical emergency. Cuttington had the doctor’s office call his work to explain what happened, and went home. He came to work the next day and was fired by the owner. Defendant-owners disputed this version of events and argued that Cuttington failed to call in and did not present a doctor’s excuse in accordance with the company’s employee manual.
Cuttington then filed for Workers’ Compensation and brought a wrongful termination lawsuit against the company. He stated he was exercising his right under the WDCA by seeking medical treatment for a work-related injury, and United Health Services violated the Act when it terminated him in retaliation for exercising that right.
The lower court ruled in favor of the company, holding that because Cuttington did not file for Workers’ Compensation until after he was discharged, the WDCA’s protections did not apply.
When the Appeals Court got the case, it looked specifically at the components of the WDCA that applied to employee protections. It pointed out that MCL 418.301(13) provides the following:
A person shall not discharge an employee or in any manner discriminate
against an employee because the employee filed a complaint or instituted or
caused to be instituted a proceeding under this act or because of the exercise by
the employee on behalf of himself or herself or others of a right afforded by this
act. [emphasis added].
The Court, seeing that Cuttington’s filing of a claim did not precede all retaliatory discharge claims but followed them, outlined four conditions that Cuttington would have to establish evidence of to make his case for retaliatory discharge:
(1) The employee asserted a right to obtain necessary medical services or actually exercised that right
(2) The employer knew that the employee engaged in this protected conduct
(3) The employer took an employment action adverse to the plaintiff
(4) The adverse employment action and the employee’s assertion or exercise of
a right afforded under MCL 418.315(1) were causally connected.
The Appeals Court took note that the fourth element above was typically hard to prove; but in this case the evidence that the owner’s wife threatened to fire Cuttington because of his injury was sufficient to raise a question of fact that United Health Services must then disprove. The Appeals Court sent the case back to the lower court for a new ruling consistent with the Appeals Court’s ruling.
In its ruling the Appeals Court made an important legal distinction. An employee does not have to actually file a Workers’ Comp claim in order to be protected by the non-retaliation component of the WDCA. It upheld the precedent that a cause of action for retaliatory discharge cannot be based on the anticipation of exercising one’s Workers’ Comp rights. However in this case Cuttington was already exercising his right to seek medical services; therefore, the “anticipation” defense was not applicable.
The takeaway for employers is this: Beware; under Michigan Workers’ Comp law, the courts will construe the exercise of one’s Workers’ Comp rights very broadly when an employee alleges retaliatory actions by the employer.
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