In JWCF, LP v. Farruggia, the West Virginia Supreme Court affirmed the Kanawha County Circuit Court’s refusal to grant a new trial after a jury awarded a former employee more than $250,000 in back pay, front pay, and damages arising out of a Workers’ Compensation discrimination claim.

Employee Farruggia sustained a compensable back injury while working as a cable installer for JWCF, a telecommunications company.  Testimony reflected that, after surgery, Farruggia initially performed in a light duty position.  Sometime thereafter, Farruggia began performing his regular job of his own accord, without obtaining a physician’s statement supporting his return to normal duties.  At approximately the same time he returned to regular duty, Farruggia accepted a $20,000 Workers’ Compensation settlement related to his back injury.  Several weeks after entry into that settlement, he was terminated.  Farruggia testified that his supervisor told him he was fired because of his Workers’ Compensation settlement, which was corroborated by a co-worker and supported by his claims handler.  JWCF also rebuffed Farruggia’s reapplication for employment.           

Farruggia brought suit under two statutory provisions prohibiting workers’ compensation discrimination.  Under the first provision, it is illegal for an employer to discriminate in any manner against an employee because of that employee’s receipt of workers’ compensation benefits.  Under the second provision, it is a discriminatory practice for an employer to fail to reinstate an employee who has suffered a compensable injury to his former position upon demand if the position is available and the employee is not disabled from performing the duties of that job.  This provision states, “[a] written statement from a duly licensed physician that the physician approves the injured employee’s return to his or her regular employment shall be prima facie evidence that the worker is able to perform such duties.”  

In the lower court, JWCF unsuccessfully moved for a new trial contending, among other things, that the jury’s verdict was contrary to law because his light duty position had been eliminated, and Farruggia had not submitted competent medical evidence that he could return to his former position as a cable installer.   On appeal, the West Virginia Supreme Court found that evidence other than a physician’s written statement may be used to prove an injured worker’s ability to return to his regular employment.  Here, Farruggia had actually performed his regular job on a couple of occasions, as evidenced by his own testimony, a supervisor’s affidavit, and work logs.  It was not necessary that he also have sought and submitted a note from his physician.    

Many employers have policies covering employee return to work scenarios, and these policies typically require the employee to submit medical certification.  There was no mention in this case of such a policy existing at JWCF, so it remains unclear how this fact would impact the Court’s analysis in the future.  Given the direct evidence of discriminatory intent in this case, i.e., the employer stating that it did not settle workers’ compensation claims and would discharge Farruggia if he did, it is unlikely that such a policy would have made any impact.  Regardless, employers should consider having a written policy that requires a physician’s statement sanctioning an employee’s return to work.

Jami Suver focuses her practice in the area of labor and employment law.
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