Visitor Question

Should I file FMLA or a workers’ comp claim for lifting injuries?

Submitted By: John (Kansas)

I am a 60 year old man and have worked for a national home improvement store chain for the past 5 years. I complained a few times in late 2014 to my manager that my shoulders hurt from lifting, but didn’t think I needed to report it.

Since then the pain worsened in the right side, and I went to an orthopedic surgeon who diagnosed a rotator cuff tear. I told the doctor it was from lifting at work. The surgery was 7/13/15. Two days prior to surgery I entered into an FMLA at work. Upon the surgery it was discovered that my bicep had also torn, due to over assisting the shoulder.

Prior to my surgery, I was having lots of pain in my left side, and figured it was from over assisting the right side that was confirmed damaged. I waited a few weeks after the surgery for the pain to subside, but it only worsened and has the exact pains and discomfort as the right side had prior to surgery.

I am now sure the rotator cuff and bicep on the left side are torn similar to the right side prior to surgery. I am sure I should get a lawyer, but have a few questions…

Can I switch from FMLA to workers’ comp for the right side injury that was already operated on? I will be needing surgery on the left side and I was going to open a separate WC claim. Is that what is normally done? What are my benefits to opening a WC claim vs an FMLA?

Down the road, I will not be able to perform lifting at my job as I did before the surgery. Is this a reason to open a worker’s comp claim? Loss of ability? Thanks for any information you can provide about this.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear John,

According to United States Department of Labor, the FMLA (Family Medical Leave Act)…

“…entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job…”

A workers’ compensation claim is entirely different from FMLA. Under FMLA, you may be entitled to continued health insurance benefits during your absence from work, but you will likely not be paid by your employer during the same time period.

Workers’ comp benefits include payment of about 2/3rds of your wages, reimbursement for out-of-pocket expenses (for items such as medications, bandages, etc.), and medical and therapy bills. Workers’ comp does not pay any amount for pain and suffering. There is no prohibition against seeking coverage under the FMLA and workers’ compensation at the same time.

Unless you have reason to believe your employer’s workers’ comp insurance company will not adequately compensate you for your injuries and resulting costs, you may not need an attorney. Certainly, seeking the counsel of an attorney in such matters is always a good idea.

To read more about the FMLA go to the United States Department of Labor website.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: August 19, 2015

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