Distinctions in Return to Work Requirements

Saturday, March 25, 2006 | 0

The following is an adaptation of an ongoing thread in the California Injured Workers Forum at www.workcompforums.com. The original has been edited for spelling and grammar.

It is a common misconception that an injured worker can be either temporarily totally disabled (i.e., can't do any work at all due to the effects of their injury) or permanent and stationary. Sometimes, especially with a condition that will require extensive therapy to get them back to work, an injured worker can be temporarily partially disabled. That means that they can return to work with certain interim restrictions. Those restrictions may be as to what work activities the person can or cannot do OR as to how many hours per day or days per week they can work. If the employer can accomodate their restrictions, the injured worker is entitled to receive temporary disability benefits on a "wage loss basis", i.e., the amount of earnings lost due to the restrictions. If, on the other hand, the employer cannot accomodate the injured worker's restrictions, the injured worker is entitled to receive full temporary disability benefits until their condition becomes permanent and stationary.

As I am writing this comment, I am wondering whether these principles are still viable under the new AMA Guides rating system. It seems to me that this is another one of those areas where the Legislature failed to think the whole idea through before adopting the new system. Time will tell.

If your doctor determines that working 30 hours/week is reasonable and that your condition has not completely stabilized at the present time, he or she can indicate that you are temporarily partially disabled in which case my comments above about entitlement to temporary disability benefits would apply.

Good luck and don't push yourself too hard. The WC system, at least before the 2004 "reform" legislation was enacted, was designed so that an injured worker would not have to face the dreadful prospect of returning to work too early just to survive.

Question:

I have a few questions about the employer's responsibility in assisting an IW attempting to return to work with either Temporary Modified Duties or Permanent Modified Duties.

Is my understanding correct that if an IWs modified duty "Permanent", that the employer must exercise "due diligence" to determine if there is any other alternative position that is available to the PMD IW, and actively involve the IW in the process of development of any modifications/accomodations? Otherwise, the employer could just say that such a position is "not available".

Answers

Many IW's have expressed concern that their employer is not "motivated" to provide them with reasonable accomodation, and subsequently does not offer any modified work at all, either Temporary OR Modified Duties. They receive the "NOPE" from the employer, and then the IW then must decide if they wish to participate in Voc Rehab...or be "pushed" back to work too early...

Question:

If an employer engages in such conduct, wouldn't that be exposing them to a potential FEHA complaint or lawsuit?

Question:

My supervisor heard back from the personnel dept. Once I am P&S, I have to be released back to work F/T in order to offer me Mod/Alt Work. Once I can work F/T, then they can offer me a position at 80% time for at least a year.

My situation is that I am restricted to 75% time or 30 hours. According to them, if this becomes a permanent restriction, then they don't have a position for me, once I am determined to be P&S.

MY question is that if I am permenently restricted to 30 hours, Is my supervisor correct, that my employer doesn't have to let me continue working 30 hours. That I have to be released to rtw full-time before they are required to offer me Mod/Alt work?

What happens if I am restricted to 30 hours and can't live on that and whatever PD I get?

Answer:

To answer the last two posts, I need to distinguish those obligations re: RTW imposed by the California Labor Code from those imposed by the California Fair Employment and Housing Act ("FEHA") and federal statutes such as the Americans with Disabilities Act ("ADA").

As with the previous commentor, when she becomes P & S the employer can offer her a position with work hours that are 80% of her pre-injury work hours and lasting at least one year. This is an obvious reference to pre-2004 WC law which gave an employer the choice of offering an injured worker who was unable to return to their pre-injury usual and customary job duties either a modified or alternate position or formal vocational rehabilitation . If a modified or alternate position was offered, the position must have a salary of at least 80% of the injured worker's pre-injury position and the new position must last at least one year.

Before going any further, I would like to correct one point and that is I do not believe a modified or alternate position could be based upon a percentage reduction in the number of work hours.

Besides, the trouble was that there was no effective mechanism under the Labor Code to compel the employer to offer a modified or alternate position (assuming they had the ability to do so) rather than simply offering formal vocational rehabilitation training. The only available "tool" is/was to allege a Labor Code Section 132a discrimination claim where the employer would be permitted to argue that it could not re-hire the injured worker due to "business necessity". Also, keep in mind that for any injury which occurred on or after January 1, 2004, these principles no longer apply as vocational rehabilitation has been eliminated. In its place is the totally anemic and ineffectual Supplemental Job Displacement voucher system which I doubt even 5% of injured workers will ever use.

Now, inregard to the FEHA. Let me preface the following general observations with a disclaimer:

I AM NOT AN EMPLOYMENT DISCRIMINATION LAW EXPERT. THESE COMMENTS ARE SIMPLY ILLUSTRATIVE. AN INJURED WORKER WHO BELIEVES THAT THEY MAY HAVE A CLAIM UNDER STATE OR FEDERAL EMPLOYMENT DISCRIMINATION LAW SHOULD CONSULT APPROPRIATE COUNSEL.

Whew, OK. Under FEHA and the ADA, an employer must take certain steps to attempt to provide a worker who has a disability which interferes with their ability to work (and what constitutes a "disability" is different under the two laws) with "reasonable accommodation" which would permit them to return to work. In general, FEHA provides an injured worker with a better remedy because the definition of "disability" is more expansive and the employer's obligations are more extensive under FEHA. One of the first things an employer must do under FEHA when they become aware that an employee has a disability which interferes with their ability to work is to initiate an "interactive" process with the employer to explore the possibility of reasonable accommodation. As I understand it, the mere failure on the part of the employer to initiate this process is a violation of FEHA and may give rise to a legal action. However, as I recall, FEHA and ADA apply only to employers of a certain size (50 or more employees, I think) and not to "Mom and Pop Shops".

Hopefully, these comments have been helpful.

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