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.
The contents of this post were reviewed in March of 2018 are are still considered to be appropriate and valid. In addition to losing the right to TTD benefits, workers would also lose the right to Temporary Partial Disability benefits as well. — Steve Hanagan
Hanagan & McGovern in a southern Illinois personal injury and workers’ compensation law firm located in Mt. Vernon, Illinois and serving southern and central Illinois. If you have questions on this, please give us a call or contact us.