One of the most tedious and frustrating events for someone injured on the job is when they visit with their authorized treating physician and receive a release to return to work. An “authorized treating physician,” is simply the term used to refer to the doctor that the worker’s compensation carrier instructs you to go to. Depending on the nature of your work accident, your job related injury may be one for which you were placed on a “no work,” status for a period of time. During this time, you have no obligation to make an attempt to return to work. Typically, a no work status is what a doctor will consider appropriate after you have undergone surgery.
Another point at which you may be placed on a no work status is when you undergo an initial evaluation for what appears to be a serious injury. The results from the evaluation are such that the doctor puts you on a no work status until you can undergo whatever treatment he or she recommends. There is no set limit to the amount of time for which you can remain on a no work status. However, the worker’s compensation carrier only has to pay lost wage benefits for a maximum of 104 weeks or 2 years. Most people do not continue to receive wage loss benefits for 2 years after their accident. People that do receive lost wages for 104 weeks are generally injured so severely that they are likely to be considered permanently and totally disabled by the worker’s compensation carrier. We will address permanent total disability (PTD) benefits in a separate article.
A common example of when you would be placed on a no work status is after you’ve undergone surgery. You may be placed on a no work status for anywhere from a number of weeks to a number of months. At some point, you are likely to reach a point at which you are returned to work with restrictions. This means that the doctor determined you can return to work so long as your employer can accommodate your restrictions. Such restrictions prohibit physical activities such as lifting over a certain weight amount; sometimes the restrictions involve no bending or stooping. Other times, the restrictions involve limiting you from engaging in use of a certain extremity, such as an arm, or leg. Whatever the restrictions are, you have an obligation to check with his or her employer and determine if a job is available within their restrictions.
THIS IS WHERE MANY PEOPLE MAKE MISTAKES!
Some people will consider the restrictions given to them by their physician, think about the demands of their job, and conclude they cannot possibly perform the job they were doing at the time they were injured. Based on this conclusion, they don’t contact the employer or otherwise make any attempt to find out if there is a job within their restrictions. To the worker’s compensation insurance company, such conduct is interpreted as a voluntary limitation of income. Put simply, you’re not entitled to lost wage payments because you have not contacted the employer and determined if there is a job within your restrictions. In offering an accommodating position, the employer is not obligated to return you to the same position you were working in when you were injured. If an employer states that they have an accommodating position, it is strongly encouraged that you return to this position and attempt to work. You are likely to earn more from working in the accommodating position than you would in the form of lost wages paid by the worker’s compensation carrier. Furthermore, making the attempt improves your credibility. It shows you are indeed trying despite the work related injury.
If you find the job offered by your employer as an accommodating position is actually not within your restrictions, there are ways we help our clients resolve such issues. If you find yourself being instructed to perform physical demands outside the scope of the restrictions, you should most certainly notify your manager or supervisor. Do not just walk off the job site. Inform your employer of the issues. Some employers will tell their employees not to return until they are 100%. Unfortunately, insurance adjusters for worker’s compensation companies put pressure on most employers to try and find, or come up with, an accommodating position. This is done for two main reasons.
- The insurance company hopes you refuse to return to work and they have a basis to argue that you are not entitled to wage loss.
- If you do not return, your employer can argue that due to your refusal to return to work, you are being terminated for cause. If terminated for cause, obtaining unemployment compensation is much more difficult, if not impossible.
What we do is ensure we have a clear idea of the physical demands of your job are. Then we work to try and ensure your doctor is aware of the physical demands of your job. Most doctors have no idea what your job requires you to do. Therefore, when they issue restrictions, they may not be as thorough as they should.
To answer the question from the title, no, you don’t “have,” to return to an accommodating position. However, we strongly advise our clients to make an attempt. That way, if the job was not within their restrictions, they can articulate exactly what they were required to do that was in violation of their restrictions. This is not an entirely easy area of worker’s compensation law. Call if you have questions: 727-451-6900. Consultations are free.
Sibley Dolman Gipe Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33756