RETURNING TO WORK AFTER AN INJURY
A. What to do When Your Doctor Releases You for Work
1. Obtaining the work release – There will probably come a time during your treatment when you discuss with your doctor the possibility of returning to work. When you have that discussion, you should give the doctor a detailed description of your job duties. It is often helpful to write them down and give them to your doctor to keep in your chart. (Many times your employer will send your doctor their version of your duties; you should ask to see it so that you can dispute any inaccuracies). You should then discuss with your doctor how your injury might affect your ability to perform the duties.
If you are released to do some type of work, even with restrictions, it is in your interest to try to do so. Once you have some sort of release, the burden is on the employer to offer you work within the restrictions. If no work is offered, the employer must continue to pay your benefits. Contrary to popular belief, the Act does not require the employer to hold your pre-injury job open for you, nor do they have to offer you light duty, unless there is a term in a labor agreement that requires it. (There are exceptions if your employer is covered by the ADA or FMLA laws; see Section X for this discussion).
2. Presenting the release to your employer – Once your doctor releases you for work, you should take the release to your supervisor. (Keep a copy for your records). You will then be told whether you will be put back on the schedule or whether the employer is not offering restricted work.
3. Disagreeing with your doctor’s release – If your doctor gives you a “full release” to do your pre-injury job and you disagree with it, your options are somewhat limited. You can try to give the doctor more information about the physical duties, in the hope that she will change her mind. Or you can have a consultation with another physician in hopes that he will follow your wishes. (Thus is somewhat risky, because your initial doctor will inform your employer that you are released for work and your employer will rely on that opinion to say you should return). The final option is to actually try to do the job for which you are released. If you simply cannot do it, you can schedule a follow-up appointment with your doctor and tell her that you have tried it. This is the best evidence you can have of whether the release is valid and it also shows you are acting in good faith. Once the doctor sees you are unable to work without restrictions, she may be more willing to limit you to what you can perform.
|
B. The Independent Medical Evaluation (“IME”) as a Basis for Work Release
A problem can arise when your doctor has disabled you from work and then you are notified to attend an IME appointment. The employer has a right to have you examined about every 6 months while you are receiving benefits. You generally cannot avoid this appointment, as long as they are not scheduled too frequently. If the appointment is not close to your home, the employer must reimburse you for the transportation costs to get you there.
1. The IME appointment – When attending the IME appointment, it is important to bring your own list of your job duties. The IME physician will have a list provided by the employer, but you are in the best position to know the actual job requirements. You should be very specific with the IME doctor in describing your symptoms and how they relate to your ability to work. Although it is not an enjoyable event, most IME doctors are not outright unpleasant. You should be honest and forthright in describing your symptoms, but you should not overstate them in an effort to convince the doctor of your disability. If you are contentious or show signs of exaggerating your symptoms, it will definitely be stated in the doctor’s report. You are permitted to bring your medical provider into the exam room (if he agrees to go), but you may not bring a witness. The employer is also not entitled to have a witness present during the exam.
2. Work release by the IME physician – If you do not hear anything after the IME appointment, you can assume that the doctor agreed with the opinion of your treating doctor. The employer is not required to give you a copy of the report unless litigation is ongoing. If the IME doctor does release you for work, you will receive notice of this in the mail. It is usually accompanied by a letter from your employer telling you when to report for work.
If the IME release is against your doctor’s recommendations, you should discuss it with your doctor. If your doctor continues your restrictions, you can inform your employer that you will be following the advice of your doctor. At this point your employer may just continue paying our benefits and wait to see if your doctor will fully release you. However, the employer might decide to file a suspension or modification petition against you. These petitions are an attempt to discontinue or modify your benefits by the amount an offered light duty job will pay you. (For a discussion of these petitions, please see Section VI A.)
|
C. The Return to Work
Once you tell your employer of your work release, you will probably be given your next work schedule. You should bring your release to work and give it to your supervisor. Don’t forget to keep a copy for your records. On the day of your return, or soon after, you will be given a document to review relating to your benefits. This document will be either a “Notification of Suspension or Modification” or a “Final Receipt of Compensation.” There are critical differences between the two, which are discussed in this section.
Note that if you return to work with residual disability (either in a light-duty job or your pre-injury job), your claim has been converted from a total disability status to a partial disability status. This is significant because an employee is entitled to a maximum of 500 weeks of benefits (or a little less than 10 years) once she is deemed partially disabled. Your 500 week time is being used up while you are working, whether your benefits are suspended or modified. If you later have periods of time when you are totally disabled from the work injury, this time will not count against you, but if you later resume work the weeks will pick up where they left off.
1. Notification of Suspension or Modification – This form is for situations where the employee has returned to work with some residual disability. If you are making the same wages are your pre-injury wages, then the agreement will state that “benefits are suspended.” This means that you are not entitled to payment of partial wage loss benefits.
If you have returned to work for limited hours or for another reason you are making less money than pre-injury, there should be calculations on the form which reflect payment of partial disability benefits. Your benefits are being “modified”, under the terms of the agreement. You will receive partial disability checks in the mail, just as you previously received the total disability checks.
It is important to note that regardless of whether the Notification form provides for a suspension or modification of benefits, it recognizes the fact that you have continued disability. This means that employer is still responsible to pay for reasonable and necessary medical treatment. In addition, if you should suffer a loss of earning power (whether by layoff or a worsening of your condition), you may be entitled to have your total disability benefits reinstated. (For information on reinstatement petitions, please see Section V E). If you return to work with restrictions, it is presumed that the disability is related to the work injury. If you return to your full-duty job without restrictions, but with residual disability, you will have to prove that the work injury is causing the loss in earnings. In either case, if your employer does not resume paying benefits, you should consult a workers’ compensation attorney to determine whether a reinstatement petition can be filed.
There is usually no dispute about the notification form, as it simply reflects the fact that you are back at work and earning wages. There is an exception, however, if your doctor has returned you to work on a “trial basis” and it is not certain you will be able to continue in the job. On the bottom of the form, there is a section which states that if the employee does not agree with the suspension or modification of benefits, he can challenge the employer’s decision. The challenge box must be filled out and mailed to the Bureau of Workers’ Compensation within 20 days from the date you received the notification. If you file a challenge, you will be scheduled for a hearing before a workers’ compensation judge. At the hearing, you present medical evidence and your own testimony as to why your benefits should not be suspended or modified. If you have questions about whether to challenge a notification form, you should seek legal advice as soon as possible.
2. Supplemental Agreements – For employees with periods of disability before June 24, 1996, the form usually given to them upon return to work was a Supplemental Agreement. The Notification of Suspension or Modification forms are used more often now. However, even at the present time, once you have returned to work the employer will usually follow up by sending you a Supplemental Agreement to sign. These forms are yellow and they should contain the same wording (as to whether your benefits are suspended or modified) as the notification form did. In addition, if you are entitled to ongoing partial disability benefits, there will be new Supplemental Agreements prepared periodically which reflect the new calculation of benefits owed. You should review them for accuracy, then sign them and return them to the employer.
|
D. The Employer’s Presentation of a Final Receipt
Infrequently, the employer will give the employee a pink form called a Final Receipt of Compensation when the employee returns to work. (It can also happen after the employee has worked for a while). The only reason you should even consider signing this form is if you are fully recovered from your work injury and are sure you will have no trouble performing your pre-injury job.
When you sign a Final Receipt, you are agreeing that you have received your “final” compensation check and that you will no longer plan to receive any wage loss benefits for the work injury. It is true that the employer remains responsible for your medical expenses after a Final Receipt is signed, however, as a practical matter these expenses may now be disputed by the employer.
If your disability returns after you sign a Final Receipt, you will need to file a petition to set aside the Final Receipt to restart your compensation checks. This petition must be filed within three years of the last date on which compensation payments have been made. The burden is on the employee to show that he was not, in fact, fully recovered when the Final Receipt was signed. It is therefore recommended that you protect yourself if possible by signing a Notice of Suspension or Modification (or a Supplemental Agreement for suspension or modification), rather than a Final Receipt. If this document is offered by the employer, you should seek an attorney’s opinion right away about the legal effect of signing it.
E. Medical Treatment after Return to Work and Reinstatement of Benefits Upon Worsening of Condition
If you return to work (whether at your former job or in a light-duty position), and you still require medical treatment, you should make sure to take the time to see your provider. If you received wage loss benefits in the past and you now have to miss work for medical appointments, you should be compensated for this time. Just remember to give your employer notice of the appointment and bring a slip to verify your attendance.
Perhaps the most important reason to continue medical treatment is in the event your condition becomes worse after your return to work. If you have trouble performing the work activities, it is critical that this be documented by your medical provider. You cannot miss work because your condition is bothering you and receive benefits for the missed time unless a doctor has disabled you. (If you have sick or vacation time and wish to take it instead of seeing the doctor for an excuse, you can do this. However, it is much better to see a doctor if you have a “flare up” so that it is clear what the reason is for the missed work).
If you are having continued medical treatment and your doctor feels that the job is not suited for you, he may place further restrictions on you. You should take them to your employer to see if you will be offered a job within those restrictions. (If no job offer occurs, you can file a reinstatement petition to restart your checks). In the alternative, your doctor may feel that you have made a good effort at trying to work and that you simply cannot continue in the job. In this case, you can file a reinstatement petition to restart payment of your wage loss benefits. If your doctor gives you this opinion in writing, you should discuss it with an attorney before actually taking off work. There are certain procedures which should be followed before the decision is made to stop working and file for a reinstatement of benefits. (For a discussion of the process of filing petitions and litigation in general, please see Section IV B).
Table of Contents
Last Section (WHAT TO DO IF YOUR CLAIM IS DENIED)
Next Section (PROBLEMS WHICH MAY OCCUR WHILE YOU ARE OFF WORK AND RECEIVING BENEFITS)
