Reference no: EM132871477

What is the likelihood that Ken will prevail? Explain your response.

Case 1.2 The Injured Driver

What arguments is he likely to present in court?

Ken was a truck driver for a regional freight carrier. He was paid $12 an hour and typically worked a 40-hour week, although when work was light he was sent home early and his hours and pay were accordingly reduced. One day he injured his back while unloading his truck at a delivery point. When he returned to the terminal, he notified the employer of his injury. Because Ken lived in a state adjacent to the employer's terminal, he had been omitted (the employer claimed unintentionally) from the list of drivers that the employer had submitted and paid on for workers' compensation insurance. Since the employer was unsure if Ken was covered, he told Ken not to file a workers' compensation claim but to go to the employer's doctor for treatment. Ken did as he was told, was treated by the employer's doctor who sent the bill to the employer, and felt that his back was much better after a week of treatment and rest.

Ken returned to work the following week but was told that business was slow and that he wasn't needed. The employer promised to schedule Ken for work as soon as work picked up and his back injury was fully healed. Ken waited for two weeks, checking regularly with the employer to see if he was scheduled, but the employer continued to put him off. At this point Ken filed a workers' compensation claim only to discover that the employer had no workers' compensation coverage in the state where Ken resided. When the employer continued to refuse to schedule him for work, Ken went to an attorney who filed a wrongful discharge suit against the employer on Ken's behalf.