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N.J. Nurse Fails to Demonstrate Workers’ Comp Retaliation after Absence-Fueled Termination

05 Oct, 2023 Frank Ferreri

judge 1587300 640
                               

Montclair, NJ (WorkersCompensation.com) -- Terminating a worker right around the same time she engages in workers' compensation activity could raise the potential for a retaliation claim.

But as was the case in Wong v. Clara Maass Medical Center, 2023 WL 5769432 (D.N.J. 09/07/23), an employer can answer back such charges by showing that it warned the worker to get back to work and only took action when she didn't comply.

Two months prior to being terminated from her position at a medical center, a registered nurse suffered an injury at work that allegedly left her with a number of "persistent and disabling symptoms."

The injury occurred when the nurse entered the building and collided with a revolving glass door. The nurse was examined, and the doctor concluded that "there was no acute pathology" that would keep her from returning to work.

Nonetheless, the nurse took paid time off to seek treatment, and a CT revealed that she had a "disc bulge," and she was diagnosed with a "head contusion."

The nurse's personal doctor placed her on restrictions, indicating that she was to remain home and was unable to work or attend school. Later, she returned to work in a sedentary-duty capacity.

According to the nurse, her employers did not adhere to a light-duty schedule for her and asked her to:

+ Make rounds.
+ Stand on her feet for extended periods of time.
+ Asked to make a "long trip" to the basement to pick up medication from the hospital's pharmacy.

Eventually, the nurse underwent an MRI, which revealed three small central protrusions and two herniated discs in her spine.

After the hospital's carrier notified the nurse that no further treatment was authorized, she did not report to work, claiming that she was experiencing symptoms.

Due to her absences, the nurse was terminated. She continued to receive treatment, and so did her father, who was hospitalized at the hospital where the nurse had worked.

Allegedly, the nurse and her father were subjected to racist comments while her father was under the hospital's care, which included allegations that:

+ Another nurse asked the nurse "if it was acceptable, in her culture, to look directly into a person's eyes when speaking to them" and whether her father spoke English.
+ A doctor approached her and asked her if she wanted to hear a “famous Chinese proverb by a famous Chinese person" and went on to say, with a feigned accent, “Life is cheap, toilet paper is expensive.”
+ Another doctor confronted the nurse in the hallways, said that he was "border patrol," and made references to Donald Trump.
+ Still another doctor “put his hands together like a steeple, like he's praying and then he bowed and he was hunched over, he leaned over and he was kowtowing.” This doctor also referenced in a "mocking manner" a "Dr. Chen Cheng Chung."

The nurse sued, alleging that the hospital retaliated against her for seeking workers' compensation benefits.

New Jersey law prohibits employers from discharging employees because they file a workers' compensation claim. To establish a workers' compensation retaliation claim in New Jersey, a worker must prove:

(1) That she made or attempted to make a claim for workers' compensation; and
(2) That she was discharged in retaliation for making that claim.

In granting the hospital's motion for summary judgment on the nurse's claim, the court held that there was insufficient evidence from which a jury could conclude that the nurse was discharged in retaliation for exercising her rights under the workers' compensation statute.

According to the court:

--> The nurse initiated her workers' compensation claim on Feb. 19, 2018, but she was not terminated until April 25, 2018.
--> Between when she initiated the claim and when she was terminated, the nurse was: 1) repeatedly cleared to return to work; 2) encouraged to return to work; and 3) warned that her continued absence from work would result in termination.

Although the nurse argued that some of the doctors who examined her were dismissive of her symptoms, the court explained that there was no evidence that the doctors participated in the decision to terminate her.

"Even assuming the truth of [the nurse's] contention that a doctor or doctors took a dismissive attitude, that would not be sufficient to demonstrate that [the nurse] was terminated for setting in motion, if not actually filing, a workers’ compensation claim," the court explained.

Thus, the court ruled in the employer's favor.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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