Issues to Consider If Your Employer Wants you to Return to Work

Posted on Thursday, July 26th, 2018 at 8:29 am    

Many injured workers can never return to work. A traumatic brain injury, spinal cord injury, paralysis, or other disorder may make the worker permanently disabled. Some workers can return to work but with medical restrictions. Many employees need to be retrained so they can learn a new job.

Employees should work with their doctor and their workers’ compensation lawyer so that they understand their medical needs and legal rights. Employers often try to force workers back to their job or a job before the worker is really ready.

Most workers are happy to return to work if they can do the job. Workers’ compensation generally just pays about 2/3rds of the worker’s wages. It’s nice to get 100% of your pay. With work comes the reward of helping your company and your community. Workers who can’t return to work shouldn’t be rushed. You do have the right to contest efforts to make you return to a job before you’re physically ready.

Medical issues to consider

First, you do have the right to have your treating doctor evaluate your ability to perform the tasks needed to do your job. You should explain to your doctor all the tasks that are required. This includes

  • How many hours you need to stand
  • Whether you can lift, push, pull, or carry heavy items
  • The type of skills you need to do job
  • The job ratings used to judge your work performance
  • How often you can take breaks
  • The hours you need to work
  • How often you interact with the public
  • Many other requirements needed to do your job

Your doctor will generally make one of the following evaluations

  • You cannot return to work at the current time
  • You can return to work but with work restrictions (light duty)
  • You can return to work without any restrictions (full duty)

Once a medical evaluation has been made, an employee should review these options with an experienced North Carolina or Virginia workers’ compensation attorney. If you think you’re just not physically or mentally ready, the lawyer may seek an independent medical evaluation.

There are differences as to how this is accomplished as between North Carolina and Virginia. North Carolina has a statutory method for obtaining an independent medical evaluation (IME) at the defendants’ expense. Attempting to see a doctor outside of this permissible scenario will likely not accomplish anything, as the treatment or evaluation was not authorized.

Virginia has no such method for an IME; however, in Virginia there are really no restrictions on you seeing a doctor on your own, assuming you can pay for it. It must also be remembered that the Virginia Workers Compensation Commission will generally side with the opinion of the authorized treating doctor as opposed to someone you chose on your own. The exception is if the treating doctor has released you and stated that he or she has nothing more to offer you insofar as treatment is concerned. In those cases, you may be entitled to move for a change in treating physicians.  

Return to work outcomes

Possible return to work scenarios include:

  • Trying to work and succeeding. If there is legitimate reason you can return to work, then most employees are encouraged to give the return a work. Caution should be used. You should review your concerns with your employer. If you can return to work, the employer’s insurance carrier will seek to terminate your wage benefits. You still are entitled to medical care provided the care is helping you improve your medical condition – or is helping you to avoid any regression.
  • Doing different types of work. Some workers can return to the same company but at a less stressful level. Some workers can shift to administrative work instead of manual labor. Workers may even be required to look for work with a different employer if they can’t do their old job or their old job is no longer available. When this happens, we call it “accommodation” of the employee’s work restrictions. Unfortunately, this can be potentially very damaging to your case.
  • Trying to work and failing. If the employer the authorized treating physician both agree that you’re not ready to work on a regular basis, then you should be able to reassert your demand for wage benefits until your medical condition improves. If the employer believes you can work but you think the pain is unbearable, then you must have doctor’s opinion supporting your right to remain out of work, or you could be fired for cause for failing to follow the treating physician’s advice, and then your case would pretty much be over.

 

Working with restrictions.

Often, doctors will say you can return to work with restrictions. Examples of restrictions include:

  • Being allowed regular rest breaks
  • Not lifting in excess of 10 pounds
  • Being allowed to sit/stand as needed. There may be limit such as being allowed to sit after standing for two hours.

The doctor should prepare detailed written restrictions. The restrictions, in turn, should be given to your attorney if you have one, and he will disseminate those restrictions to your employer and/or opposing counsel.  If an employer doesn’t respect these restrictions, you do have the right to complain to your doctor. You should take written notes of every time an employer forces you to work beyond these restrictions and you should make sure you tell your doctor precisely which duties are causing you severe pain.

Employees who work with restrictions whose employers cannot accommodate those restrictions may still be entitled to their temporary total disability checks, assuming the worker has an accepted claim in North Carolina or is under an Award in Virginia. If the worker returns to light duty at a lower wage, then the worker would be entitled to 2/3rds of the difference between the pre-injury wage and the light duty wage. This is called “temporary partial disability”. This category of worker usually earns less money than they earned before the accident or occupational illness.

For example, take John who was making $900 a week before his injury. After his injury, he only earns $600 a week. John is entitled to his $600 pay. He is also entitled to 2/3 of the difference between the pre-injury and light duty pay.  Since the difference is $300, John is entitled to claim a $200-per-week temporary total disability payment on top of the $600 weekly wage.

The worker continues to be entitled to payment for all reasonable medical bills, treatments, medical devices, and medications while working with restrictions. Workers with restrictions often continue to treat with physical therapists. Many take prescription medications.

Additional return to work considerations

Just because you return to work, doesn’t mean you reached your maximum medical improvement. Many employees continue with medical treatments while they’re doing light duty work. It is only when the employee reaches MMI that an evaluation can be made as to whether the employee has a permanent disability, a partial permanent disability, or no disability. Long-term settlements in workers’ compensation cases may be possible when maximum medical improvement is achieved.

Workers who can’t return to the same job with or without restrictions may be entitled to vocational training. This training ideally allows the worker to learn new skills so he/she can get a new job. It is sometime used, for example, when a worker who did manual labor is retrained to do clerical work.

But one should be extremely cautious with the vocational rehabilitation counselors. Although they are supposed to help the worker find a job, their real mission is usually to torpedo and sink your case by claiming that you failed to comply with their often ridiculous job search requirements.

Understand your right to return to work only when you’re able to

At the North Carolina and Virginia Law offices of Joe Miller Law and the Work Injury Center, we have been fighting for injured workers for more than 30 years. Joe Miller has helped thousands of injured workers get the workers’ compensation benefits they fully deserve. Joe  Miller works with your doctors to understand you medical problems and when you can competently do your job. For help , please call (888) 694-1671 or complete my contact form.