Making the Light Duty offer "Stick."

Why seek a return to work in a light duty capacity?

Employees who do not reurn to work (transititional or otherwise) within 6 months of the date of loss have a less than 50% chance of returning to gainful employment. Injured workers who remai`n out of work for more than one year but less than two years have a 25% chance of returning to employment. Workers who have lost two or more years to injury have less than a 1% chance of returning to any type of employment. Reference: See New York State Workers’ Compensation Board “Return to Work Program Handbook” page 2.

The Workers’ Compensation Board envisions a process in which an employer “creates” a light duty job tailored to each injured worker. In reality, most employers have a limited amount of potential light duty employment. In those cases, the goal of the claims professional is to get a clear statement of the claimant’s work ability from the treating physician and then to issue an appropriate offer letter to the claimant.

Making the offer stick.

If a light duty offer is made, and the claimant does not return to the workplace to accept the work, the employer can stop paying benefits by arguing that the claimant has voluntarily withdrawn from the labor market.

Some claimants don’t want to come back to work. They are quite happy to sit home, collect their benefits, drink beer and watch “Judge Judy” all day. They regularly employ two excuses to avoid light duty work:

  • I never got the offer to return in any capacity;” and
  • “I tried the job, it was too hard.

The Courts have consistently upheld these excuses. In cases where the employer could not document that a valid light duty offer of work was made, the Courts have found in favor of the claimant. The light duty offer should be made in writing.

Claimants who argue that the offered job was “too much” consistently prevail where the offer letter fails to address exactly what job the claimant was being offered See Hatter v . New Venture Gear, 759 N.Y.S.2d 573 (App. Div. 2003). Similarly, if the offered work is “more active” that the work release provided by the treating physician, the Board has been upheld in ruling that refusal to do the “more active” work does not constitute a voluntary removal on the part of the claimant. See Turner v. Erie County Medical Center, 673 N.Y.S.2d 268 (App. Div. 1998).

Action Plan.

If the employer can offer light duty work, the goal is to identify whether the potential light duty employment can be performed by the worker. The first step is getting a light duty release. The carrier/employer is allowed to communicate with the claimant’s treating health care providers. Then, communicate with the treating doctorto get a statement of work ability. If the work restrictions can be accomodated, issue an offer to the claimant. If the claimant refuses to return to the employment, file the appropriate RFA-2 (if you are under an order to continue benefits) or stop paying partial benefits!

Step 1. Determine if light duty work can be offered.

If the employer is willing to provide light duty work, a written job description detailing the skill requirements necessary, job dutieis, physical demands, and environmental conditions should be obtained.

Step 2. Obtain release from claimant to communicate with treating physician.

Here is a model release to be adapted to your needs:

AUTHORITY TO RELEASE MEDICAL INFORMATION

(Dated)

TO: TREATING DOCTOR

RE: (Employee Name) (Employee Address) (Date of Birth)

I, (Employee Name), authorize (name of treating doctor) to release medical information to my employer, (name and address of employer), regarding my on the job injury that occurred on (date of injury).This information is confidential and may not be used for any purpose other than facilitating the claimant’s return to work.

This information may facilitate my return to medically appropriate productive work.

Print Employee Name ________________

Employee Signature ____ Date

Reference: See Appendix “C,”, Page 15, New York State Workers’ Compensation Board “Return to Work Program Handbook.”

Step Three. Communicate with the treating doctor.

The employer/carrier may communicate with the claimant’s treating physician about workplace demands (following receipt of employee consent). This communication can be in writing or verbal. We recommend that you describe the work duties, physical demands, and environmental conditions for the proposed light duty work in written format. Here is a model letter to the treating doctor to be adapted to your needs:

SAMPLE LETTER TO TREATING DOCTOR.

(Date of letter)

TO: TREATING DOCTOR

RE: (Employee’s name and date of injury)

Dear Dr._______________:

Our Company has implemented a return to work program designed to return any injured employee to medically appropriate work as soon as possible.
Enclosed is a detailed job description for the regular job of the employee named above, which may be modified, if possible, to meet medical restrictions that may be assigned.

If our employee is unable to return to his or her regular job, we will attempt to find an appropriate alternate work assignment. We will ensure that any assignment meets all medical requirements as directed toward your specific treatment strategies.

We will consider re-arranging work schedules around medical appointments if necessary. To that end, we request that you complete the enclosed Transitional Assignments Form with as much detail as possible.

If you need additional information about a possible work assignment or about our return to work program, please call (Return to Work Program Contact name and number). Our insurance carrier is (name and address of insurance carrier).

Thank you for your participation in our efforts to return our employees to a safe and productive workplace.

Sincerely,

(Signature of company representative or owner)

(Title),

(Name of Company)

cc: Claimant, claimant’s attorney

Encls:
Claimant’s Signed authorization

Job descriptions and task analysis

Step Four: the “light duty offer” letter.

The “perfect” light duty offer letter contains the following elements:

  • Sent to the claimant’s correct address.
  • Sent “certified” mail or with proof of delivery.
  • Includes the following information:
    • Job title.
    • Location (address).
    • Duration of assignment.
    • Wages.
    • Department (or Name of Supervisor).
    • Start date.

We strongly recommend that the offer letter include a “start date” and an “expiration date” for the return-to-work offer.

Here is a model “offer letter” that can be modified to suit your needs:

Bona Fide Offer of Employment.

(Sent Certified Mail – Return Receipt)

(Date)
TO: (Employee name) (Employee address line 1) (Employee address line 2) (City, State, Zip)
Re: Bona Fide Offer of Employment

Dear (Employee Name):

After reviewing information provided by your doctor, we are pleased to offer you the following temporary work assignment. Please see the attached Individual Return to Work Plan for details.
We believe this assignment is within your capabilities as described by your doctor on the attached Transitional Work Assignment Form. You will only be assigned tasks consistent with your physical abilities, skills, and knowledge.

If any training is required to do this assignment, it will be provided.

Job Title:

Location:

Duration of Assignment:

Wages:

Department:

This job offer will remain available for five (5) business days from your receipt of this letter. If we do not hear from you within five (5) business days, we will assume that you have refused this offer. Please note that refusal of an employment offer may impact your Temporary Income Benefit payments.

We look forward to your return. If you have any questions, please do not hesitate to contact me.

Sincerely,

(Signature)

(Printed Name and Title) (Contact Information)

When the claimant fails to come back to work.

OK, so the treating physician has released the claimant to light duty work, with specific lifting and activity restrictions. The employer can accomodate the restrictions and has sent a “perfect” letter to the claimant offering a light duty position, and telling the claimant when the position will start.
The start day comes and goes, and the claimant fails to report to work.
What to do next?

When there is no Order directing employer/carrier to pay benefits.

Per 12 NYCRR § 300.23, in any case where the carrier or employer has made payment without waiting for an award by the board, the filing of a form C-8/8.6 with the chair and accompanies it supporting evidence that the suspension or reduction of payment is appropriate such as the notice to return to work justifying the suspension or reduction of payments.

When there is an Order directing employer/carrier to pay benefits.

If there is a direction for continuation of payments, the employer or carrier must continue payments at such rate [beyond the period covered by the award], and such payments shall not be suspended or reduced until:

  1. an RFA-2 is filed, accompanied by supporting evidence justifying the proposed suspension or reduction together with proof of mailing of copies thereof upon the claimant, his/her doctor and his/her representative, and,
  2. after a hearing finding that such suspension or reduction is justified. At said hearing or meeting or conference, if either party fails to appear or fails to submit any evidence as to the above issue, the Workers’ Compensation Law judge may still continue, suspend or reduce the award.

Questions?Contact Greg Lois (973-500-8109).

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Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com