Imagine yourself in this situation. You
were injured in an incident on the job. You have been off
work for several weeks, recuperating from your injuries,
when your doctor finally informs you that he will release
you to return to work with some restrictions on your
physical activities. Unfortunately, the restrictions your
doctor has placed upon you prevent you from returning to
full duty. Suddenly your employer contacts you and informs
you that you have been assigned work that is within your
restrictions, and you are expected to report for work the
next day. You become concerned about the situation. What are
your rights?
As an initial matter, temporary total
disability is the form of compensation paid by the Bureau of
Workers’ Compensation to injured workers who are unable to
return to their regular job duties as the result of
disability caused by a work-related injury. This
compensation is payable to an injured worker until:
(1) the injured worker returns to work;
(2) the physician has made a written statement that the
employee can return to his or her former employment without
restrictions;
(3) employment within the employee’s physical capabilities
has been made available by the employer; or
(4) the employee reaches maximum medical improvement (a
plateau at which no functional improvement of the condition
is expected).
Unless the injured worker has been
cleared for full duty without any restrictions, return to
work situations can become messy very quickly. If you find
yourself in the type of situation described in the beginning
of this article, you would be well advised to consult with a
workers’ compensation attorney if you do not already have
one. Knowing your rights when presented with an offer of
light or modified duty work is important in protecting
yourself from further physical injury and in protecting your
rights to continued compensation under your workers’
compensation claim.
If an injured worker refuses an offer of
work within his or her restrictions, such refusal can serve
as the basis for termination of temporary total disability
benefits. However, employers must also follow certain rules
when offering light or modified duty to injured employees.
When an employer offers a job it believes
is within the employee’s restrictions, the job offer must
(1) be made in writing and
(2) contain a description that describes the job duties in
enough detail that a determination can be made as to whether
the work is truly within the employee’s restrictions. If you
have any question as to whether job duties fit within
physical restrictions set by your doctor, you should have
your doctor review the job description and advise you as to
whether to accept the offer.
If the employee refuses the job offer due
to a dispute as to whether the work is within the employee’s
physical capabilities, be prepared for the employer to
contact the BWC in an attempt to terminate temporary total
disability benefits. However, in such disputed cases,
temporary total disability benefits cannot be terminated
without a hearing at the Industrial Commission. The
Industrial Commission would determine whether the work
offered was truly within the employee’s physical
capabilities.
In other cases, employers will return
employees to light or modified job duties and then gradually
start requiring the employees to perform job duties that
exceed their restrictions or physical capabilities.
Unfortunately, this places the employee at risk of
re-injury. If you find yourself in this situation where your
employer is not honoring your restrictions, contact your
doctor and union representative so they can assist you in
addressing the problem. Do not take matters into your own
hands by walking off the job or not reporting to work, as
this could place your future compensation payable under your
workers’ compensation claim in jeopardy and subject you to
disciplinary action with your employer.
Fortunately, on many occasions, an
employee’s return to work following an injury occurs without
controversy. Nonetheless, it is important to know your
rights in order to better insure a smooth return to work
after an injury.
