Worker alleges wrongful termination for broken back, but company shows plaintiff doing yardwork

Michelle Massey, East Texas Bureau Jun. 19, 2008, 6:00am

MARSHALL – While installing an elevator motor at Pilgrim's Pride, Brian Barton fell when a coworker moved the ladder that he was standing on. As Barton was falling, his back hit the railing and steps of the ladder.

Trusting the company's nurses and their diagnosis of a "pinched nerve," Brian Barton alleges that he continued his normal work duties with a broken back.

Five months after the accident, Barton states he was trying to relax his back, so he sat in a chair, leaned back and closed his eyes. The Pilgrim's Pride supervisor walked in and sent Barton home for "sleeping on the job." Barton was then terminated from his job.

Barton told the company that he would be unable to find other employment due to this back injury and lack of "meaningful medical treatment." The company's Employee Occupational Injury Plan authorized Barton to see a doctor for his back injury.

The doctor ordered X-rays that revealed Barton's' back was fractured. Referred to an orthopedic doctor, initially Barton was placed on modified work duty that included no lifting of more than 20 pounds. Once the orthopedic doctor received more test results, he sent Pilgrim's Pride a form stating Barton "was unable to work."

A few weeks after receiving steroid injections and a few weeks before a scheduled surgery, Barton worked outside his home nailing shingles to the roof, planting flowers and mowing.

However, he did not know his actions were under surveillance from a Pilgrim's Pride hired investigator. Shortly thereafter, Barton's medical and disability wage benefits were terminated.

Pilgrim's Pride pressed criminal charges against Barton alleging theft in excess of $1,500 for the disability payments.

Barton appealed the plan's termination of benefits and received a response that included copies of the surveillance footage and a statement concluding Barton's activities "were injurious practices that were hindering recovery from his alleged work injuries."

Alleging wrongful denial of benefits and wrongful termination, Barton filed a lawsuit against Pilgrim's Pride on June 16, in the Marshall Division of the Eastern District of Texas.

The suit seeks declaratory and injunctive relief, which includes the entitled benefits under the Benefit Plan and more than $56,000 for the plan's failure to provide requested documents.

Longview attorney Laureen F. Bagley of the Sloan, Bagley, Hatcher, and Perry Law Firm is representing the plaintiff.

Currently, Pilgrim's Pride has not responded to Barton's allegations.

U.S. District Judge T. John Ward will preside over the litigation.

Case No 2:08cv00243

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