What Do You Think: Was Firing Nurse who Lost Fight with Door WC Retaliation? 

Belleville, NJ (Workerscompensation.com). An employer’s action during the period after which an employee reports an injury and the date she is fired can go a long way to either showing retaliation or negating it.  

A case involving a hospital nurse is illustrative. On Feb. 18, 2018, the nurse strolled into the hospital building where she worked and collided with the revolving glass entry door. Her injury, she said, left her with various persistent and disabling symptoms such as difficulty balancing and seeing. 

The hospital promptly sent her to visit its Corporate Care doctors, its in-house medical staff. The Corporate Care staff treated employees and made fitness-for-duty determinations. The doctor there diagnosed the nurse with a "head contusion" and instructed her to take "Tylenol as needed." The doctor released her to return to work full duty without restriction. 

On February 27, the nurse presented a health certificate from her personal physician stating  she was "restricted to home duty.” The nurse returned to Corporate Care on March 16. The doctor again released her to full work duty after an MRI of her brain was "unremarkable.” However, the nurse did not show up for her work shifts. 

The nurse later alleged that when she went to Corporate Care and complained of dizziness, balance problems and blurred vision, the doctor was dismissive and said she just needed a new prescription for her glasses. 

On April 5, the hospital sent the nurse a warning letter regarding her unexcused absences. After the nurse continued to not appear for her scheduled shifts, the hospital fired her on April 25. The nurse sued the hospital for workers’ compensation retaliation. 

The New Jersey workers' compensation statute prohibits an employer from discharging an employee because the employee filed a workers' compensation claim. N.J. Stat. Ann. § 34:15-39.1.  

To establish retaliatory discharge under the statute, a discharged employee must prove: 

(1) She made or attempted to make a claim for workers' compensation; and
(2) She was discharged in retaliation for making that claim 

Did nurse establish a retaliation claim? 
A. Yes. The fact that the corporate doctor wasn’t taking her complaints seriously indicated the hospital was hostile to her pursuit of workers’ compensation benefits. 
B. No. She was not terminated until months after her injury and Corporate Care played no role in her termination. 

If you picked B, you agreed with the court in Wong v. Clara Maas Med. Ctr., No. 20-05510 (KM) (AME) (D.N.J. 09/07/23), which found no evidence linking the nurse’s pursuit of benefits to her termination. 

For one thing, there was a substantial period between the initiation of her claim on February 19 and her termination on April 25. “Between those two dates, [the nurse] was repeatedly cleared to return to work, encouraged to do so, and warned that her continued absence would result in termination,” the court wrote.  

Further, there was no evidence that the employer even contemplated terminating her until April 5 when it took steps to send her a letter regarding the fact that she had missed ten scheduled shifts in a row. 

The court also wasn’t swayed by the nurse’s argument that the hospital’s retaliatory intentions were apparent from the dismissive attitude of the Corporate Care doctors. “[T]here is no evidence that any of the Corporate Care doctors participated in the decision to terminate [her],” the court wrote. 

The court granted summary judgment to the hospital. 

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