Winter 2010 SBH Work Comp Quarterly
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Comments and actions by a workers' compensation insurer can be relevant in a claim for workers' compensation discrimination or retaliation. In a U.S. District Court case from Oregon, Magistrate Clarke issued a decision finding the employer did not discriminate against claimant. Kelly v. Ironwood Communications. Inc., 2009 WL 3497811 (October 29, 2009). The judge noted that the workers' compensation adjuster and employer "exchanged a series of unprofessional emails displaying an unnecessary and unfortunately adversarial tone toward Plaintiff." Nevertheless, because the employer was not required to continue light duty indefinitely, the employer was found to not have discriminated against claimant. This case was tried directly to a judge. If a jury was involved, the outcome of the case could have been very different. In other words, the content and tone of email exchanges between a workers' compensation adjuster and employer could play a big role in a jury's determination of whether the employer retaliated against the employee.
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