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Electrician’s termination not retaliation for comp claim

comp claim

An electrician failed to show he was terminated in retaliation for filing a workers compensation incident report, an appellate court held in unanimous decision on Thursday.

In Matter of Peterec-Tolino v. Five Star Electric Corp., a three-judge panel of the Supreme Court of New York, Appellate Division, Third Department in Albany affirmed a New York Workers Compensation Board’s dismissal of a worker’s claims after it found that he was terminated for legitimate business actions.

John Peterec-Tolino worked as an electrician and journeyman mechanic for Five Star Electric Corp. based in Ozone Park, New York. On Dec. 4, 2014, Mr. Peterec-Tolino walked into a pipe, striking his left knee and injuring it. Five Star prepared an accident and incident report, but Mr. Peterec-Tolino did not seek medical treatment or lose any time away from work, but received an alternative dispute resolution notice in early January 2015 regarding his accident.

In late January 2015, Mr. Peterec-Tolino was terminated with a “do not return” letter placed in his employment file. He filed a complaint with the workers comp board alleging that he was dismissed for filing an accident report. A workers compensation judge dismissed his claim, and the board affirmed, holding that he was terminated as the result of legitimate business actions, not because of his accident report, and therefore failed to establish a Workers Compensation Law violation.

Mr. Peterec-Tolino appealed but the appellate court affirmed the board’s decision, holding that there was no credible evidence to support his allegation that he was discriminated against under workers comp law.

The appellate court noted that prior to Mr. Peterec-Tolino’s termination, Five Star had implemented a program which required the lay off 10% of its electricians, and the company presented evidence that it had alerted employees — including Mr. Peterec-Tolino — to potential layoffs in an email several months before his accident. The company further testified that Mr. Peterec-Tolino had poor work performance, and that the company had asked the union for other qualified workers to replace him before the incident occurred.

Although Mr. Peterec-Tolino argued that the timing of his termination, just days after receiving the alternative dispute resolution letter, was not coincidental, the appellate court held that he still failed to “demonstrate a nexus between his work-related injury and termination.”





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