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Should I file A Stress Claim?
#1
Ok, here's the deal without going into too much detail. My job has been violating state and federal laws. I pointed out these violations to my boss. My boss retaliated by writing up a bad performance review of me. I handed in my official notice of resignation a couple of weeks later. I needed surgery for an unrelated work condition. The surgery would require me to be off work for several months which is why I resigned. My resignation was never processed. Instead I was talked into staying with my current employer by the Human Resources Department. The Human Resources Department offered to put me out on a paid medical leave of absence if I withdrew my resignation. I agreed. Less than a month later, (two weeks before my surgery) my boss proceed to write up another performance review of me. (I had worked a total of three days between the two performance evaluations, the rest of the time I was out on medical leave.) This time around my boss recommended that I be fired. I filed a written grievance with the Human Resources Department for retaliation and disability discrimination (my medical condition is classified as a disability.) It's been a over two weeks now since I filed the written grievance and the Human Resources Department has not responded nor have they proceeded to process my bosses recommendation. In the meantime, the situation (being retaliated and discriminated against) has caused me a tremendous amount of stress just prior to having to undergo a major medical procedure (surgery.) Should I file a Workman's comp claim for the stress since the stress is directly related to the retaliation and disability discrimination occurring at work and has the potential to greatly affect my surgical outcome and recovery? The stress also makes it far more likely that the medical condition which I am having surgically treated will reappear again shortly after the surgery.
 
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#2
P.S. I should probably clarify. My performance was in fact good despite my bosses claims. I have performance reviews conducted by others to prove it. I also have written documentation showing the reporting of state and federal laws and that my boss was aware of these violations. Providing documentation to support claims of retaliation and discrimination is not an issue. I am an excellent record keeper. I am just wondering if the situation would in fact qualify as a stress claim?
 
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#3
Laws vary from state to state, so without knowing your state it is difficult to comment. All I can say is that here in PA that would be a difficult case to win. Other states may be more friendly towards that type of claim.
Timothy D. Belt
DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The answer given is based only on the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.
 
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#4
there is no universal standard work comp law.
does your company have a time frame on responding to a grievance?
if it's being violated you should contact the next level in the chain of command.... HR manager or VP...or?
stress by itself is not an injury. you will need medical opinion to support any claim of disability or injury.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
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#5
Thanks for the replies Timothy and 1171. I currently reside in the state of California. I have a history of anxiety, panic attack disorder, and PTSD. I was last treated for these conditions about seven years ago. Since going through all this with my work my anxiety and panic attacks have returned. My companies time frame for responding to a formal grievance is ten days. It has been longer than ten days now and I still have not heard back from anyone. I originally filed my formal grievance with the Human Resources individual who asked me to withdraw my resignation and go out on medical leave. She forwarded my grievance to her supervisor, the Director of Human Resources. I tried following up with the Director of Human Resources but they are not responding to my emails.
 
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#6
the threshold for compensibility in california is higher for psyche injuries. see labor code 3208.3

http://www.leginfo.ca.gov/cgi-bin/displa...=3200-3219

you need to exhaust all levels of administration when filing a grievance against supervision and management especially if it may lead to a cause of action under ADA or FEHA
http://www.dfeh.ca.gov/Publications_FEHADescr.htm
http://www.ada.gov/
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
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#7
Not all medical conditions fall under state and federal ADA laws. I suggest talking to a attorney who knows these laws.

Have you applied for FMLA and are you currently out on FMLA? You may also qualify for state disability while recuperating from your surgery? I cannot tell from your post if you have had your surgery yet.

I do not recommend quitting your job when facing a surgery.(JMO)

You can contact the EEOC and Department Of Fair Housing And Employment for what is occurring with your employer. I always recommend attempting to work things out with your employer before any legal avenue. However the HR department works to protect the employer and not the employee. Remember that while dealing with them.

You can talk to a workers compensation attorney about filing for a stress claim. I do not know if your situation qualifies and would recommend reading the link 1171 provided. Filing a stress claim in CA can be very stressful. They can depose you etc.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
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#8
Thanks California Help and 1171. I actually pulled up the California Codes before my original posting. I meet all of the requirements under the code, however I have never actually dealt with Workman's Comp, so I thought that I would seek some advance from those who have more experience with the Workman's Comp system.

1171, I'm not sure exactly where you reside, or how familiar you are with the California Department of Fair Employment and Housing (DFEH) but it's actually a bit more complicated than that. When dealing with the DFEH an individual can choose to take one of two paths. They can choose to file a claim with the DFEH and have the DFEH proceed to investigate the matter. If an individual chooses to have the DFEH investigate a matter for them, then the individual has to exhaust all administrative remedies with the DFEH, before the DFEH will grant them a right to sue notice. The wording here is important because exhausting all administrative remedies with the DFEH does not necessarily mean the same thing as exhausting all administrative remedies with a person's employer, although the two often coincide. If an individual chooses to go down this path, the DFEH investigates the individuals claim, and then grants them a right to sue notice if appropriate.

The second path an individual can take is to wave their right to a DFEH investigation and instead file for an immediate DFEH right to sue notice. This is usually done directly through a lawyer and is done when an individual has decided that they would like to proceed directly to court. Under an immediate DFEH right to sue notice an individual does not need to exhaust all administrative remedies before proceeding to court. (Here is a link which you can refer people to in the future should they need it: http://www.dfeh.ca.gov/Complaints_RTSNotice.htm)

As for the disability and the ADA, I have a physical impairment which meets both parts A and B of the major life activities clause, so I am completely covered on that base.

When it comes to filing a grievance, the procedure can vary from company to company. Some companies have no specific procedures laid out for an employee to follow. Other companies have procedures laid out for employees in their employment contract, or employee handbook. In my case, we have a very specific procedure laid out for us. Our procedure is to report the incident to our immediate supervisor. If we are unable to report the incident to our immediate supervisor, as in my case, then we are to report the incident directly to the Director of Human Resources. Which is what I ultimately did after going back and rereading my employee handbook. The Director of Human Resources is then suppose to investigate and reply to our claims within ten days. (It's been longer than ten days now since I filed a formal grievance and I still have not heard back from our Director of Human Resources.)

California Help, I did not apply for FLMA because I do not qualify for it. In order to qualify for FLMA you need to have worked for your employer for at least a year. I also do not qualify for state disability insurance (SDI) since I do not pay into the system at my current job. (We pay into a private system. With that said, the private system we pay into only offers disability insurance to employees who have worked for the company for at least a year.)

I handed in my notice of resignation when I found out that I needed to have surgery and would be unable to work for several months because I have been with my current employer for less than a year. Had I been employed with my current employer for a year or more, then I definitely would have requested a medical leave of absence instead of handing in a notice of resignation. Since I have been with my current employer for less than a year, I felt that it would have been unreasonable to request an extended leave of absence, which is why I handed in my notice.








 
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#9
since you know the rules you need advice on strategy. i suggest you contact an experienced work comp atty or employment law atty.
the details of your claim and relationship with your employer will help them lay out your approach to litigation.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
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#10
I would have still recommended to ask your employer for the leave of absence, even though you did not qualify for state disability or FMLA. Some employers try their best to work with the employee.

Have you already given your notice? You stated your HR department talked you out of it originally. In my opinion attempting to work things out is always better than getting involved with litigation, EEOC etc which may or may not be successful. It sounds like your HR person was attempting to work with you and even gave you paid medical leave when you did not qualify for it.(JMO)

I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
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