Man says he was fired for filing workers' comp claim

CHARLESTON - A Kanawha County man is suing his former employer because he claims he was fired after filing a workers' compensation claim.

James Smith was hired to be a truck driver for Power Plant Services, Inc. a corporation located in Eden's Fork, W.Va., on June 15, 2006. While riding in a PPS vehicle on June 23, 2006, Smith experiences a spike in his blood pressure. He was a passenger in the vehicle and at no time ever put anyone in danger.

He was taken to a local hospital, examined and released the same day. He returned to work the next day, providing the owner of PPS, Roger Shaffer, with his return to work slip.

Upon returning to work, the manager, Randy Harper, was concerned about Smith's condition and his ability to drive a truck. Smith explained he had a physical, required for his job, scheduled and it would provide a second opinion regarding his health.

On June 26, Smith has a physical and was given a clean bill of health. On the same day, Harper gave Smith keys to a PPS truck. Smith drove his truck without incident until July 25, 2006, when he sustained an on-the-job injury to his hand while changing a tire.

"Despite the pain," Smith completed his run and returned to PPS. Upon his return, he informed Harper of his injury.

"Harper shrugged off the injury and failed to provide (Smith) with an accident report," the suit claims.

After leaving work, Smith drove himself to the doctor and filled out a Workers' Compensation Form. As a result of his injury, he was placed on temporary workers' compensation leave of absence through July 31, 2006.

Aug. 1, Smith returned to work, but was not given a truck, instead instructed to work in the shop all day. Around 3 p.m., he was called into Harper's office and told he was being let go. Harper explained that because of Smith's medical history, the company could not risk Harper passing out on the road.

"Since being put on notice of (Smith's) intent to file this action, PPS has revised its story to assert that (Smith) was discharged for a combination of incompetence in the performance of his job and as a result of his medical condition," the suit states.

Smith is claiming PPS's conduct was unlawful discrimination in violation of the Discriminatory Practices Article of the West Virginia Workers' Compensation Act.

The suit states PPS regarded Smith as having a disability, despite the fact he had been cleared by two separate physicians. PPS based its decision to terminate Smith on a perceived disability. PPS failed to pay Smith wages, causing several emotional distress.

Smith is also claiming PPS terminated him as a result of his filing for worker's compensation benefits and because he has a perceived disability.

He is seeking back pay, including benefits, front pay, compensatory damages, punitive damages and all out-of-pocket losses suffered as a result of PPS's unlawful conduct.

The suit was filed Jan. 9 by Matthew S. Criswell, who is representing Smith. The case has been assigned to Judge Jennifer Bailey Walker.

Kanawha Circuit Court case number 07-C-61