Tracey Diamond, Emily Schifter, and Todd Wachtel explore the surprising roots and real-world complexities of workers' compensation, drawing a playful throughline from pirate "articles" in Pirates of the Caribbean to today's patchwork of state laws.
In this episode of Hiring to Firing, hosts Tracey Diamond and Emily Schifter explore the surprising roots and real-world complexities of workers' compensation law, drawing a playful throughline from pirate "articles" of old, to the movie chain, Pirates of the Caribbean, to today's patchwork of state laws. Joined by Todd Wachtel, workers' compensation specialist and partner at Levinson Axelrod, they explore key employer and employee obligations, insurance and reporting requirements, and how classification decisions (employee vs. independent contractor) can make or break coverage. The conversation highlights the interplay between workers' compensation and OSHA, ADA, and FMLA, common pitfalls and retaliation risks, and practical steps to keep workplaces shipshape. Tune in for actionable takeaways to help employers navigate coverage, compliance, and claims with confidence.
Troutman Pepper Locke's Labor + Employment Practice Group provides comprehensive thought leadership through various channels. We regularly issue advisories that offer timely insights into the evolving employment law landscape, and maintain the HiringToFiring.Law Blog, a resource spotlighting best practices for employers. Our Hiring to Firing Podcast, hosted by Tracey Diamond and Emily Schifter, delves into pressing labor and employment law topics, drawing unique parallels from pop culture, hit shows, and movies.
Hiring to Firing Podcast — The Jolly Roger Meets the Jobsite: A Workers’ Compensation Voyage
Hosts: Tracey Diamond and Emily Schifter
Guest: Todd Wachtel
Recorded: September 8, 2025
Aired: December 16, 2025
Tracey Diamond (00:00):
Emily. Today we're talking about the workers' comp system and the history of workers' comp, which believe it or not, is related to pirates. And for our pop cultural reference, we're using Pirates of the Caribbean, which got me thinking about all those days when my kids were little and we would go to Disney World and Disneyland and my favorite rides in Disney. So I wanted to ask you, what's your favorite Disney ride?
Emily Schifter (00:23):
I think my favorite was the spinning teacups, and I don't know if that's the true name of it, but when we went, I was six and my sister was four and she couldn't ride many of the rides she wanted to because of her height, which is a source of great disappointment at the time. So we did the spinning teacups probably five or six times. My poor patient parents.
Tracey Diamond:
That's a lot of spinning. Yeah, exactly.
Emily Schifter:
Yeah, exactly.
Tracey Diamond (00:42):
Well, my favorite was always and still is Space Mountain, which I just love that. I just love that ride, which is kind of funny. I really hate roller coasters, but something about that ride is just so fun when you're in the dark and it's cool and the stars and it. It's a really fun ride. I was there once in the rain and I happened to be kind of an empty park and we kept going on over and over again. It was a blast. Anyway, listen in to our very interesting topic with Todd Wachtel, our workers' comp expert to talk about workers' comp and employment law with Pirates of the Caribbean. Welcome to Hiring to Firing. I'm Tracy Diamond, labor and employment attorney with Troutman Pepper Locke, and I'm here with my partner and co-host Emily Schifter. Together we tackle all employment issues from hiring to firing. Today we're going to break down the nuts and bolts of workers' compensation law. For our discussion, we have invited Todd Wachtel to join us. Todd is a partner with Levinson Axelrod and specializes in workers' compensation law. So nice to have you here with us Todd.
Todd Wachtel (01:48):
Hey guys, thank you for having me on.
Emily Schifter (01:50):
Can you give us a little bit of background about yourself and your practice?
Todd Wachtel (01:54):
Okay. I'm a partner at Levinson Axelrod. I've been here about 20 years. I specialize in solely workers' compensation law on behalf of injured workers. Before I was here, I was a deputy attorney general defending workers' compensation claims on behalf of the state of New Jersey and I did that for a while. Before that, I was a law clerk in family court of all places for the Honorable Frederick in New Brunswick. So it is been a long road to get to Workers' Compensation Board certified by the New Jersey Supreme Court and on the fellow of the College of Workers' Compensation Attorneys.
Tracey Diamond (02:32):
We get a lot of questions from our employer clients about workers' comp and oftentimes it's just on the edges of what we specialize in. So I was excited to meet Todd recently at an event and to learn that he is a workers' comp specialist even if he is on the dark side of employees, not employers.
Todd Wachtel (02:49):
Well, that's what's unique about workers' comp is that it's not as litigious. I mean as it can be in Superior Court at the end of the day, all trying to work things out.
Tracey Diamond (03:00):
That's true. Well, as we always do for today, we have pulled clips from a pop culture reference to illustrate our point and for reasons that we will get into in a minute today, we have chosen the Pirates of Caribbean whole franchise. So the movies followed the exploits of Captain Jack Sparrow, played by Johnny Depp as they battle cursed pirates, supernatural forces, and other threats on the high seas. Let's listen to our first clip.
[BEGIN CLIP]
Norrington (03:25):
You are without doubt the worst pirate I've ever heard of.
Jack Sparrow (03:27):
But you have heard of me. Love, you save mine, we're square. Gentlemen, my lady, you will always remember this as the day that you almost caught Captain Jack Sparrow.
[END CLIP]
Emily Schifter (03:56):
Todd, tell us what the connection is between workers' comp law and pirates.
Todd Wachtel (04:01):
Okay, 1911, the governor of the state of New Jersey was a guy named Woodrow Wilson. You might've heard of him. And in 1911 he came up with the workers' compensation system in the state of New Jersey. We weren't the first state to have a workers' comp system that actually was Minnesota and federally, it came from Teddy Roosevelt who created a workers' compensation system on behalf of the rail workers. But in 1911, our good friend Woodrow Wilson from Princeton came up with a workers' compensation system and the joke is it's based on the pirates, workers' compensation, taking care of your employees goes all the way back to the Bible. But in 1911 they came up with the comp system in New Jersey and the joke is based on the pirates because if you were a pirate on a pirate ship, they were all bad guys. Everybody wanted to be the captain. So you'd wake up in the build or in the bottom of the ship and they'd bop you over the head and they'd say, you want to be a pirate?
You got to sign the articles. The articles of piracy were basic labor contract and it says you agree to pillage and burn things down and take over other ships. But we agree to other things too on the captain side. So ever since then, the captain had to have a doctor on the boat, could be the rattiest, nastiest worst doctor in the world. For my generation, we talk about Cannonball Run, which was a movie the seventies that had a doctor with one eye going the other way and one eye going this way. That's the kind of doctor the captain could hire and if that doctor said that the pirate was hurt as a result of something that happened on the boat, the captain was responsible for their injuries that would include paying the doctor to treat them and they would also have to pay them while they weren't able to be a pirate.
And then the ship would come back to the dock, wherever it was, the Bahamas or whatever, and would be a big sign of the dock and it would say one hook on your hand, so much extra treasure, a patch on your eye, a different amount of treasure, a peg leg, a different amount of treasure. If you died, the captains are responsible for your heirs, but that's all the captain had to do. So if you look at the history of the state of New Jersey, not a lot's changed. People have been slipping and falling and banging themselves up ever since 1911. And ever since 1911, somebody like me would've had a proof. Three things that you were working, you suffered an injury during the course and scope of your employment and you suffered a significant and permanent injury. Once you prove these three things, you're only entitled to three things, treatment, reasonable and necessary to cure and relieve the effects of the injury.
I've been here 20 years, I have no idea what that means. I say that to be funny because every case is different. You're entitled to temporary disability, which is 70% of your salary, but every year that rate changes and is capped. And then once you're done with treatment, once the doctor says you've reached your maximum medical improvement, not saying you're any better, not saying you're any worse, there's a permanent injury, we've hit a plateau. That's when you're entitled to what's called permanency benefits. So the reason why I love your podcast is because of the pop culture references. What I do all day is pop culture references. So the next pop culture reference that I would've had is the $6 million Man, which is because most of my stuff comes from the seventies because I'm getting old already. Alright? The $6 million Man was the world's worst workers' compensation case. He was an astronaut, he fell from space and in 1970 they put $6 million worth of equipment did him, and he was better, faster, stronger than he was before thanks to his accident at work. That doesn't happen to my clients, they don't get 6 million worth of treatment.
Tracey Diamond (07:38):
$6 million in the days of the $6 million man was a lot bigger of an amount.
Todd Wachtel (07:43):
Right now it's a lot of money. So my clients are all typically left with a significant permanent injury as a result of their accident at work. So what typically happens is I get the records and I send the client out to my doctor and my doctor says, oh my God, this is the worst thing I've ever seen. They're 80% disabled. Then workers' comp would send you out to their doctor, and these were my doctors too, and say, no, the disability is far less. And then I go to court and I say, judge, look at all the things that they are no longer able to do. And somewhere between these two reports is a fair value. This is most cases that you try to resolve. Otherwise, if there's other problems, there's other ways to resolve cases. But the majority of cases in the division of Workers' compensation get settled on what's called a percentage of disability for permanent partial disability on an order approving settlement.
The reason why is because a judge of compensation gets the last look at everything to approve the settlement. Once a worker's compensation case settles, the injured worker maintains the right to reopen the case anytime while they're being paid on their award because their awards might not be paid in one shot and it may be paid out over a period of weeks and they have anytime while they're being paid plus two years to reopen their case for either additional medical treatment, again, reasonable, necessary to cure and relieve the effects of the injury, or if their disability gets worse. We say, okay, judge, in 2026 you said 40% of the big toe and they have the right to come back should that permanent disability get worse.
Tracey Diamond (09:14):
Todd, I have a question for you about sort of just more generally, since our listeners are all across the country. I know you're a New Jersey workers' comp expert, but is the law pretty much the same state by state or does it really vary?
Todd Wachtel (09:27):
No, the law is completely, completely different in each state.
Tracey Diamond (09:32):
Interesting. So how does an employer keep track of it all?
Todd Wachtel (09:35):
An employer just has to get insurance for the state that they're in. If they have employees in a particular state, especially my on the road truckers, if you anticipate that it's going to be in Jersey, you better get a Jersey COP policy as well. And then I'm always concerned when I hear adjusters who handle multiple states applying one state's law to a New Jersey case, for example, in other states you talk about a settlement and release where the person accepts some money and is fired essentially or quits their job after accepting a workers' comp award in New Jersey. Not only is that frowned upon, it's prohibited by statute. So that's the kind of thing as far as keeping track of it. I don't dabble in Pennsylvania workers' comp.
Tracey Diamond (10:26):
So really important for our multi-state employers to make sure the laws of the state that you're in or have experts in those states through your insurance that knows those laws that you're complying with the various laws then, right?
Todd Wachtel (10:37):
Oh, for sure. Because I can say if you drive down Route 95 on the way to the Eagles, you're going to see a ton of billboards for workers' compensation attorneys and that's because the value of workers' comp cases in the commonwealth of Pennsylvania are significantly greater than the values of cases in New Jersey. More importantly in New York and Pennsylvania, the medical isn't controlled in the same way that is in New Jersey. So those cases can go on and on and on and on.
Tracey Diamond (11:06):
Todd's referencing the fact that the Eagles play at the Linc, which is right near the bridge going over to the Jersey state instead of staying in Pennsylvania for those living outside of the Eagles world. So Todd, generally speaking, how does an employee qualify for workers' comp?
Todd Wachtel (11:24):
Workers' comp benefits are available the minute you clock in going and coming to work is not considered workers' compensation. However, in a post COVID world where the employment arena, the circle of what it means to be employed, sometimes it may even be more now on a case by case basis, it's got to benefit the employer more than health and morale as far as some activities, but it's becoming post COVID. A real question, when does employment actually start? If you fall down the stairs while responding to an email at home that may be comp where 20 years ago we would've never thought about it like that in terms of independent contractors is a whole other world that your clients should talk about and know about because just because somebody is a 10-99 employee doesn't necessarily mean that they're not eligible for New Jersey workers' compensation benefits. There was a case that came out a couple of years ago that talks about the nature and control of the work test and many factors that come out for what starts employment or what creates an employment relationship. The biggest thing is the control. So the difference between a ride sharing company or a taxi company or a pizza delivery company may be the amount of control the employer has over the assignments.
Tracey Diamond (12:57):
Yeah, I just want to clarify that. I don't think, correct me if I'm wrong, I don't think you're saying if you're properly classified as an independent contractor that you still get workers' comp, but I think what you're alluding to is someone might be classified as an independent contractor improperly and really because of the degree of control, it's an employment relationship at which point they should be covered by the workers' comp policy.
Todd Wachtel (13:18):
Right. The mere tax implications of a 10-99 doesn't necessarily make a difference for the judge of workers' compensation.
Tracey Diamond (13:25):
And that's hitting on a really big hot button issue in our world because of the concept of who is properly classified as an independent contractor. And you're right, just giving someone a 10-99 is not going to get you out of the woods in terms of you've now labeled them as an independent contractor. Don't worry about all of the employment laws. You have to actually meet the various standards. And there's many of them, depending on what you're looking at, including workers' comp to determine whether or not someone is truly classified properly as an independent contractor.
Todd Wachtel (13:55):
I can tell a war story as to that. I had a gentleman a couple of years ago who worked at a commercial butcher whose hand was injured with a commercial cutting machine and lost some fingers and the employer said, oh no, you're an independent contractor, you're on your own. But we came to court, he had tons of uniforms that he had to wear where it had the butcher's logo on it. He worked for the butcher nine to five, had no other jobs and got injured on their premises. And the judge of compensation said, of course he's an employee and it doesn't matter how he's paid.
Tracey Diamond (14:36):
Yeah, it's a really good example of where improperly classifying someone as an independent contractor could come back to have a consequence that employers might not have thought through, which is it impacts not only your taxes, your potential rights to benefits and overtime pay, but also things like and unemployment, things like workers' comp as well. So an important word to the wise. Emily, you want to lead us through mistakes.
Emily Schifter (15:02):
So I know that just because you're an employee suffering injury that's related to your work, you don't sort of automatically get coverage or benefits. Are there deadlines or procedural hurdles employees have to get? What kind of mistakes do you see employees making that result in a denial of coverage?
Todd Wachtel (15:19):
The big one is reporting it to the employer. The worst time to ever get hurt is 4:30 on a Friday because a lot of those are, “ah, I got hurt, I didn't say anything to anybody and I went over the weekend and I told them on Monday” or if they don't get treatment right away. There's that big gap in between the allegation of the injury to when it's reported because even as a petitioner's attorney, I'm going to write on my intake, I go, oh boy, we got a problem. Once the claim is reported, they have two years from the last date of treatment authorized treatment to file a claim with the division of labor. If no claim filed within that time, they could be out of luck if no comp benefits are provided, if it's not benefits provided by the insurance company, then it's two years from the date of the injury.
Tracey Diamond (16:13):
Interesting. So from an employer's point of view, what is important for employers to know about workers' comp insurance and what does it provide to employees?
Todd Wachtel (16:22):
Well, it provides the treatment, it provides the temporary disability and it provides injuries to the permanent disability if they are significantly permanently injured as a result of the accident work. The biggest thing for most employers to remember is if they don't have insurance, there's something called an uninsured employers fund. And we don't like taking those claims because they become a big aggravation and the state of New Jersey will step into the shoes of the uninsured employer to pay for treatment and temporary disability, but the injured workers still may be able to try to get a judgment against the owner of the company personally for the nature and extent of any injuries, and the UEF will try to get their money back. So every employer of the state of New Jersey really is by law required to have workers' compensation insurance.
Emily Schifter (17:12):
And there's a benefit to that in many states to the employer kind of the other hand where if you get your remedy under workers' compensation, you lose the ability to bring a tort type claim. Is that true?
Todd Wachtel (17:23):
In most states, the big compromise, the great compromise of workers' compensation is as an injured worker you don't have to prove as much, but you don't get as much. So the real reason Woodrow Wilson in New Jersey had a workers' compensation system is because employers were getting sued in superior court and employees were having to wait all that time to get their benefits. So it was a great compromise to have a compensation system.
Emily Schifter (17:50):
Maybe helps to your point of it being a little bit more, everyone trying to get things resolved than some of litigation that we see. So one question we get a lot from clients, and I think employees get confused on this too is whether an employer has to keep a job open by law for an employee who is on leave receiving workers' compensation benefits. Is that a requirement of workers' compensation coverage that you have to give a job protected leave to employees who are out?
Todd Wachtel (18:15):
No and yes.
Tracey Diamond (18:18):
But the no is more emphatic than the Yes. Tell us Todd, why?
Todd Wachtel (18:22):
The reason why I say that, well, because the workers' compensation on the carrier side is just the three things, treatment, temporary disability and permanency. So they're never going to get involved in New Jersey at least and that's one of the differences between Pennsylvania and New York is that those jurisdictions may require job retraining or temporary disability benefits to be paid until the person gets another job. But in New Jersey, which is the only thing I really ever know about, they have to provide if the employer has FMLA coverage or even I believe the state FMLA, because there's the federal family medical leave and the state medical leave. If the employer is required to do FMLA, then they have to do it for workers' compensation claimants as well. Now that they run concurrently, and I think it's only 12 weeks for 50 employees within a 50 mile radius. So some of the smaller employers don't have to hold a job.
Here's where I say kind of yes, because the issue that we get into a lot is that the workers' compensation doctor releases an injured worker to light duty and then the employer says, Hey, we don't have light duty. At that point, workers' comp still has to pay temporary disability benefits. So when I go to a big box chain that sells hardware or a big multi-state place, that's a retailer of general merchandise and there's people that are greeters. I love talking to the greeters because none of them were ever hired to be a greeter. Most of them are back from an injury.
Tracey Diamond (20:03):
That's actually something that's kind of confused me through the years, which is I understand workers' comp will say, you got to bring them back, find a light duty position. They don't want to continue to pay temporary disability, but is it in the employer's best interest to bring them back or is that really the workers' comp board's problem that they have to pay the disability? Does it affect the employer?
Todd Wachtel (20:23):
I've really seen some dumb stuff with that. I've seen people like nurses having to go back to just sit in a break room all day. I've seen people having to organize files and there's actually some controversy because some employers have actually have arrangements with soup kitchens and some charitable works with some of the bigger stuff and they say, oh sure, we have a light duty job at the kitchen.
Tracey Diamond (20:47):
But why would an employer do that? As opposed to just saying, no, we can't accommodate that, we don't have a light duty position. What consequence is it?
Todd Wachtel (20:55):
Saying that they can accommodate and they provide. They say, but you have to go do the soup kitchen job. And then the burden, and I'm not saying it's a burden because I have some clients that love it, this is really cool, but I've also had some clients that object to it for various grounds and we have to fight that fight. It doesn't come up very often, but I have seen that as a trend, especially in South Jersey.
Tracey Diamond (21:16):
So employers are doing what they can to find something for the employees to do, even if it means going to work in a soup kitchen, but the employer is going to then pay the salary. Is that less expensive to the employer than just saying, Nope, can't accommodate this. You have to keep getting temporary disability.
Todd Wachtel (21:33):
I don't know how some of these relationships work with some of these carriers and the employers. I kind of feel like the carrier kind of forces it on the employer sometimes, but I'm not sure how they're doing it. They're still going to have coverage at the end of the day.
Tracey Diamond (21:48):
So how do workers' comp laws interact with laws governing workplace safety?
Todd Wachtel (21:53):
OSHA is meant to prevent injuries and to take care of employers that are recidivist and always have a bad workplace and investigate future problems. Workers' compensation is what happens after. So there's an interplay in that way. That's the biggest that I can think of as far as interplay between other workplace laws. Obviously you can't discriminate for somebody who retaliate for somebody having a workers' compensation claim.
Emily Schifter (22:24):
We often see the Americans with Disabilities Act, I think interplay sort of in that after the injury too as well and one thing when you talk about light duty, I've seen clients have situations come up where maybe they do have a light duty policy and they have roles, and then somebody who has an A disability says, well, you should accommodate me for light duty because you're able to accommodate all of these other people. And that's the different situation than a client who says, we've never had a light duty position we couldn't possibly accommodate. So different purpose. But yeah, it opens the door.
Tracey Diamond (22:53):
So definitely it opens the door, right?
Emily Schifter (22:54):
Yeah.
Todd Wachtel (22:55):
That's what's so amazing because the employment law attorneys are in their own bucket and the comp lawyers in the same workplace are talking about different things. But if I go to a trial at one point and say on a motion, we call it a motion for medical temporary disability. If I say to my injured worker, hey, have you had an interactive process to see whether or not that they could accommodate you? My insurance carrier attorney doesn't get where I'm going, but the employment lawyer who represents the employer, their antenna would go off if I said that.
Tracey Diamond (23:30):
It's all related.
Todd Wachtel (23:32):
And it just, we're all in our own buckets but it is the same place of work.
Emily Schifter (23:36):
That's right. It's all connected. So in our next clip, Jack and his frenemy and former first mate, Hector Barbossa, argue over who is actually the captain of the ship. Let's take a listen.
[BEGIN CLIP]
Barbossa (23:50):
Trim that sail!
Jack Sparrow (23:50):
Trim that sail!
Barbossa (23:50):
Slack windward brace and sheet!
Jack Sparrow (23:50):
Slack windward brace and sheet!
Barbossa (23:50):
Haul the pennant line!
Jack Sparrow (23:53):
Haul the pennant line!
Barbossa (23:53):
What arrre you doing?
Jack Sparrow (23:56):
What are you doing?
Barbossa (23:57):
No, what arrrrre you doing?
Jack Sparrow (23:59):
What are you doing?
Barbossa (23:59):
No, what arrrrrrre you doing?
Jack Sparrow (24:01):
What are you doing? Captain gives orders on the ship.
Barbossa (24:04):
The captain of the ship IS givin' orders.
Jack Sparrow (24:05):
My ship. Makes me captain.
Barbossa (24:08):
They be my charts.
Jack Sparrow (24:10):
That makes you -- chart man.
[END CLIP]
Tracey Diamond (24:12):
So I have to say, this clip reminded me so much of when one time I went whitewater rafting with my family and one of my sons who was young, maybe he was nine at the time, as we were going to the shore to go to lunch, he yells the captain is the first one off the ship and then immediately jumped into the water to be the first one off the ship so he could be the captain. I think he must have just watched pirates at that point.
Todd Wachtel (24:35):
Also. The captain was the last one off the ship.
Tracey Diamond (24:37):
Yeah, exactly. Think I thought one a little backwards. So we've talked about independent contractors already, Todd, and how independent contractors, if they're truly independent contractors, would not be entitled to workers' comp. What about owners of a company? Do they get workers' comp?
Todd Wachtel (24:54):
I've had this as a situation. They need to name themselves on the policy.
Tracey Diamond (24:59):
Oh, really? Okay. Do they have to also be on the payroll? Do they have to actually be employee / owners?
Todd Wachtel (25:05):
They have to be on the payroll to prove wages, but they need to draw from the company as well. Owners by themselves don't necessarily need to have workers' compensation coverage if they don't want to.
Tracey Diamond (25:19):
They're not technically on the job.
Todd Wachtel (25:21):
Right. But my father had his pinky amputated while making a delivery and he was a sole proprietor and what gets very weird upon that, it was Marty Wachtel versus Marty Wachtel Company and the first thing is my defense attorney goes, well, did he report it? I go, yes, he reported it to himself when he amputated his pinky.
Emily Schifter (25:44):
Yeah, kind of silly. Yeah, that's right. So one question, and maybe this is obvious, but just for those our listeners who aren't as familiar, the way the system works, your coverage is going to be more expensive if you have more claims. Is there anything that employers should know about that or things that they can do to make that coverage more cost effective? Do you see people being surprised by that?
Todd Wachtel (26:04):
It doesn't really come up on my side. I think we're talking about the experience rating and how carriers evaluate their risk. The joke I make is that you could have a lot of accidents at the marshmallow factory and no accidents at the dynamite factory. We have an employer out here in western New Jersey that makes milk and juice. You'd be shocked how many people get injured at this factory where some of the major construction firms do a really great job of keeping everybody safe.
Tracey Diamond (26:38):
And that's where OSHA and workers' comp intersect too, because from the employer's perspective, better job the employer does at keeping on top of all of workplace laws and safety laws and keeping the workplace as safe as possible, the less likely they'll wind up with too many workers' comp suits. Of course, there's not any foolproof people get hurt and no matter all your best efforts, but keeping your workplace safe as a top priority certainly helps to mitigate that.
Emily Schifter (27:04):
So maybe one last question. You mentioned briefly retaliation, Todd, how does that work in the workers' compensation context?
Todd Wachtel (27:11):
So our statute does have a provision for filing retaliation claims within the division of workers' compensation. It doesn't come up very often. Typically, that goes to a third party attorney outside of the division but I have had cases where people have gotten fired after filing a workers' comp claim on the employer side. Don't do it. Don't fire employees for filing a workers' comp claim. The problem really becomes are the injured workers able to do the essential functions of their job? And I had a phlebotomist, a person who takes blood years ago and she comes to court on a contested case and she goes, oh my God, look what you people did to me. I can't take blood anymore. And they go, okay, here's some money and they'll come back. She was upset at the time. That's not retaliation. It's that she couldn't do the job anymore as far as an accident at work,
Tracey Diamond (28:09):
Yeah, it's a fine line. So employers have to be really careful to avoid that retaliation claim because this decision of you can't do the job, so we're letting you go versus you filed a claim because you got injured and now you can't do the job, which might be a retaliation claim.
Todd Wachtel (28:25):
I don't rush to do psychiatric claims for police officers or nurses or doctors or airline pilots because if you do a psychiatric claim for somebody in certain jobs, they're immediately going to be let go because you can't make that allegation. And when I say let go, I'm not meaning any. They're fired, but they're going to be looking at disability pensions or being out of that job because we don't want to make that allegation unless it's something really true.
Tracey Diamond (28:51):
Makes sense. Well, Todd, this was really a very interesting topic and an area where I know our employer clients have lots of questions. We want to thank you so much for joining us today.
Todd Wachtel (29:00):
Thanks so much for having me.
Tracey Diamond (29:01):
Thank you to our listeners for listening in. Check out our other episodes anywhere you get your podcasts, and check out our blog hiringtofiring.law. Thanks for listening.
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