Injured Workers: Be Careful With Your Release to Return to Work

April 26, 2012 Posted by Hanagan & McGovern

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Every few years we see a particularly vicious claims practice resurface in workers’ compensation claims.  Most often it involves younger workers and smaller employers, but it isn’t just limited to them.  This practice involves an employer tricking the injured worker to get a full duty release to return to work when they aren’t physically able to do so.  Workers have to use extreme caution in this situation or the result can be devastating.

The typical set-up involves an employee that is off work, receiving temporary total disability (TTD) benefits, and getting medical care.  They continue to receive some type of therapy, but their recovery is slow.  One day, completely out of the blue, the employer calls the worker and tells them they need to return to work.  There are numerous reasons that employers give:  1) they are short handed; 2) they need the worker because others can’t do the job; 3) they will have to replace the worker if they can’t come back to work immediately; 4) the boss will have to cancel their vacation next week if the employee can’t return to work.  You name it.  The list of excuses is long and ingenious, but it almost always involves an appeal to the worker’s loyalty and a vague agreement that the rest of the staff can help out if the worker is unable to fully perform their duties.  Then the employer throws in the catch.  Before the worker can come back, they need to have a full duty release to return to work from their doctor.

Many times, the worker is thrilled with the prospect of returning to work and getting back to a normal paycheck.  No one really likes being off work, and getting only two-thirds of their regular pay puts them in a financial bind pretty quickly.  Thinking the employer will help them avoid the physical duties they still are not able to do, the employee runs off to ask their doctor for a release to return to full duty work.

Imagine the worker’s surprise when they report for work and find out they have been fired.  It is only then that they realize they made a mistake.  It is only after they talk to a lawyer that they find out how big that mistake really was.  The result can be disastrous and nearly impossible to fix, which probably explains why this trick never gets old.  Here is the list of damage done:

♦The worker lost their right to receive weekly workers compensation benefits – they have been released to return to work, so their right to Temporary Total Disability (TTD) benefits  stops;

♦The worker lost their job and their income – they no longer have TTD benefits or a paycheck to pay the bills;

♦The worker limited their prospect for other employment by getting released before they were physically able to get back to their job. If they weren’t able to return to full duty in the first place, they may end up having an impossible task of finding other employment.

♦The worker potentially lost their right to unemployment benefits if they aren’t physically able to seek other employment;

♦The worker may be unable to continue their medical treatment.  If the doctor discharged the patient at maximum medical improvement because they asked for a full duty release, the employer will argue there is no need for additional medical treatment.

♦The worker lost or reduced the value of any workers’ compensation benefits they might receive for permanent disability, as a full duty release to return to work generally demonstrates that the injury had no permanent effect on the worker’s earning ability.

There is very little that can be done to solve these problems once they arise. Normally, workers can’t just go back to their doctor and say it was a false alarm.  They are bound by their admission that they can return to full duty work and unless their doctor had the foresight to record otherwise in the medical records, the worker is likely out of luck.

The best solution is to prevent these problems from occurring in the first place.  It is extremely important for workers to understand that, even when no trickery is involved, they have to be cautious about how they handle their return to work when their employer requires a full duty release.  If returning to light duty work with restrictions is out of the question, workers should insist their doctor make the work release for a trial period. They should make sure to tell their doctor about their concerns with performing the work before they get the release, and immediately schedule a follow-up appointment for a week or two after they have returned to work.

Having the doctor use a trial return to full duty work leaves many options open if things don’t work out.  It acknowledges that the workers’ condition is still questionable and they might not be able to do the job. It protects against the worker having the rug pulled out from under them by an employer that fires them before they can attempt to perform the job.  Most importantly, it gives the doctor the option to take the employee back off work, continue therapy, or impose permanent work restrictions should it become necessary in the future.

11 Responses to Injured Workers: Be Careful With Your Release to Return to Work

  1. Ryan says:

    I had got into a car accident on the job about 6 months ago. So far I have seen two different IME doctors one was a physical evaluation and the other was a mental evaluation. When I first got injured my doctor had informed me that he would be putting me into physical therapy for the first month to help with the pain caused in my neck and upper back. After the first month of therapy my doctor requested that I get an MRI done to see what damages happened during the accident. After another month the insurance company finally approved it and sent me to get an MRI. Once My doctor received the results he informed me that I had two slipped discs in both my neck and spine. Soon after I was sent to an IME doctor where he informed my employer that I have reached MMI even though I was still treating for my injury. That situation soon got resolved and I was back on my normal TTD payments only this time I was not getting anymore therapy. About two months ago I returned back to their IME in which he said I have reached MMI even without the initial therapy that I never got approved for. A week after that I was sent to another IME doctor that told me that I could not return to work because, my job is 70% driving he did not want me driving due to me having PTSD from the accident. It has now been two weeks since I have last received a check. Can they do this? I have an Attorney but she has not been able to contact the adjuster to resolve this issue. I have not received any notification about them stopping my benefits. Just a copy from my lawyer of the IME reports.

    • As I have mentioned before, workers’ compensation laws are dependent upon what state your claim is pending in. Assuming your compensation claim is in Illinois, what has likely resulted in the termination of your benefits is that the company doctor says that you have reached MMI (Maximum Medical Improvement). Logically, if you are at MMI, your condition is no longer “temporary” and you are therefore not entitled to temporary total disability benefits, at least according to their doctor.

      Most states have procedural rules that say what an employer needs to do in order to terminate benefits. In Illinois, they are supposed to notify you, or your attorney, of the basis for termination of benefits. This requirement is rarely enforced, especially when the reason for termination is obvious, as it is in your claim. It may be they did inform your attorney of the reason, I simply do not know.

      At this point I would suggest that you ask your attorney about the situation and whether they think they can get your benefits restarted.

  2. Julee says:

    This type of situation is a little different. My boyfriend broke his leg in a motorcycle accident on his own time resulting in having surgery. He reported his injuries to his employer with his off work slip for at least 4 weeks. He was off for about 3 weeks and the company called and asked if he would come back to work as they were behind and they needed him as he was a foreman. He ended up going back to work without a doctors release. He ended up worsening his leg, he broke two screws in his leg and the doctor ended up taking off his boot and putting on a full cast. When he went to work after the check up the company told him to go home and let his leg heal and call them when he has a full duty work release. Would he now be able to turn this in as a Workers Compensation claim as he worsened his leg and the company did not ask for a RTW release?

    • Sorry for the late reply, but our server did not submit this to us until today.

      Under Illinois law your boyfriend sustained an aggravating injury while working. Under the circumstances it should be found to be covered under workers’ compensation for at least payment of benefits while he is off work and for any additional medical treatment he needs due to the worsening. In the event that he has additional permanent disability that can be proven to have been caused by his work accident, not the initial accident, he should be able to recover for it as well.

  3. Kimani says:

    I slipped and fell at work, I hit my back, butt, arm, and head (in that order). I figured I would have some pains so I didn’t go the the doctor immediately. After 2 days of progressively increasing pain, difficulty sitting, standing, and driving for any time more than 5 minutes. I told my manager and I was instructed to go to see the company doctor. I went to the company doctor and was instructed to get a CT Scan, 15 xrays, ibuprofen, and told to come back the next day. At my return visit I was told that everything looked good and that I had suffered a mild concussion. I was given a muscle relaxer, a pain reliever, told not to drive while on these meds, and I was instructed to come back after the weekend. That Monday I came back to the doctor, and I didn’t feel any better. The doctor seemed surprised to hear that I was still having intense headaches, back pain (mid & lower), & difficulty sitting, standing etc. The doc then took me off work for the week, and told me to come back Friday (today).
    Today I told the doctor that the only improvement was that the headaches were less frequent, all other issues remained the same. I told him the only mild relief was when I was on the pain med (which only relieved my mid back slightly). I didn’t take the pain med last night because I knew I had to drive to see him this morning. Without the meds all issues were very present. Upon hearing this, the doctor said “you should be better, back pain like yours should only decrease after a week”. He also couldn’t understand why I didn’t take the pain meds, saying “You can drive while taking ibuprofen”. Then he asked me what meds he gave me. I reminded him that he put me on a combo of Cyclobenzaprine & Tramadol, and that he and his nurse made it clear I shouldn’t drive while on it (THE NURSE EVEN WROTE “DONT DRIVE” ON THE BOTTLES). He then says “Well, if being off work for a week didn’t help you, being at work cant hurt, I’m going to clear you for sedentary work only”. He left the room, came back 15 mins later and said “I forgot to ask you bout your arm”. I say all this because I am confused. I am afraid that this doctor does not have my best interest in mind. I don’t know if the workers comp people have my best interest in mind either. I cant get in to see my doc til the 26th. What can I do?

    • Assuming you were injured in the State of Illinois, or otherwise have an Illinois workers’ compensation claim, I would note the following:

      As a general rule, a company doctor has a conflicting allegiance. On one hand, they don’t want to do anything they know is going to hurt you. But, on the other hand, they are normally under pressure from the employers to minimize treatment, testing, and time off-work. When, as in your situation, x-rays don’t show any broken bones or other obvious injuries they tend to work on the presumption that the patient is over-reacting or over complaining about their condition. They aren’t particularly inclined to look any deeper for the cause of the problem.

      Whether you fall into the category of injuries that will heal over a short time remains to be seen. It is a good idea to see your family doctor although it seems that there is going to be a couple of weeks delay before you can do so. Over that time you may find that your condition improves or that you get completely better. But that doesn’t answer the question about what you should do between now and the time you see your doctor on the 26th.

      There are usually two choices available to you in this situation. I don’t have enough information to advise you which one would be best. First, if your condition is bad enough you have the option of going to the emergency room to get a more unbiased opinion from the doctor about whether additional testing, medication, or treatment may be warranted. The ER doctor may also suggest that you remain off work even though the company doctor thought you should return to work. If the ER doctor does not keep you off work, you will either need to return to work or face possible termination from your employment. The second option is to attempt to return to work, if you think you can do so. If it turns out that work aggravates your condition too badly, you can then report to your supervisor that your condition is getting worse from your work and then go the to the ER. It is important to get medical attention quickly if your work significantly aggravates your condition. You should explain to the doctor what has gone on with the company doctor, that you attempted to return to work and that the work has aggravated your condition. The doctor may then take you off work pending your visit with your family doctor.

      You clearly should not drive while taking the narcotics, but use of narcotics is not going to be the determinative factor on whether or not you should return to work unless your employer has a zero tolerance drug policy.

      Please keep in mind that what I am discussing in this answer are based on the limited facts that you have given me. As a general rule, this is good advice, but I might have different advice for you if I had the chance to speak with you by telephone or in person and develop additional information. That is, a response to a question from a website is no substitute for a telephone or personal consultation.

  4. confussed says:

    DR put me on restrictions & wrote no more he could do for me with back injury. Went thru therapy & FCT..Corp cant find me any light duty. WRK COMP stop day of Dr release. I do have long term disability..What can I do

    • While other states may handle this situation differently, in Illinois the employer either needs to put you back to work or you would be entitled to continued compensation benefits while you searched for suitable work within your restrictions. In addition, if the best suitable work you could find resulted in a significant cut in your earnings, the employer could be required to pay you for your decreased earning capacity.

      As far as the long term disability, those insurance policies don’t normally cover you if you have been released to restricted work. However, this actually depends on the terms of the policy. Without seeing it, there is no way to tell.

  5. Russell says:

    My doctor gave me a referral to physical therapy place can I choose my own if im on workers comp. In IL.

    • As a general rule, yes. You can choose the location where you receive therapy. You should contact the therapy provider and give them the information about your claim. They will likely contact the workers compensation insurance carrier to obtain approval to treat you and make arrangements regarding billing before seeing you for your first visit.

  6. WCSpouse says:

    This happened to my husband…6 months after a spinal fusion surgery his company was pressuring him to return, even if only on a part-time basis, due to the fact that they were in a difficult situation because he’d been off work for so long and they hadn’t replaced him, thinking he’d be returned to full duty by then. Unfortunately, his surgery did not go well, and 9 months after the fusion he had to go back under the knife to have the hardware removed, after which he never did recover. He never worked again, and who knows what permanent additional damage was done to him by pressuring him to return to work too early and with serious misgivings by his doctor. Try to prove that in court? To show their gratitude, they fired him after his “medical leave expired” and he was not able to return full-duty. Then they sent a bill for medical insurance premiums during his TTD period before they fired him. Luckily we had an attorney before the first surgery so any delays in TTD payments were temporary. My advice: if you are hurt at work, first call is to your doctor to schedule an appointment, and the second call is to an attorney. Start keeping detailed notes immediately so there is never a gray area about anything. Check out IWP and Summit mail-order pharmacies if the insurance company plays games with your medications. Respond immediately to any requests made by your attorney, and follow his advice.

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