Return to work if offered while on worker’s comp restrictions? What if I don’t agree with the restrictions?
In a recent blog post, we discussed what to do if work orders changed, and posed some hypothetical questions. Well, as it turns out, these hypothetical questions are based on real-life stories! The issue is whether an injured employee should accept an offer to return to work if he or she does not agree with the restrictions?
We recently got a call from an existing client who sustained a work injury. Up until her last doctor’s visit, she was on “off work” orders and the worker’s comp company has been paying Temporary Total Disability (TTD) benefits to her. However, at her last visit, the doctor changed the “off work” orders, and said she could return to limited duty with restrictions of no lifting over 20 pounds until the next appointment. The employer wrote her a letter asking her to come back to work because they could accommodate the new restrictions.
The problem is, this injured worker had a very serious back injury that has required, so far, two surgeries. She totally disagreed with the doctor’s restrictions and felt there was no way she could work if the only restriction was to not lift more than 20 pounds. Her question to us was: “Well, I don’t think I can do the work. Should I try to do the work anyway?”
For her situation, the answer was “yes.” To explain why, I told her about another case. Years ago, we had a client who refused an offer to return to work in the same situation as my current client – on the grounds that she didn’t think she was able to do work within the restrictions given. The employer immediately stopped paying TTD on the grounds that she refused a reasonable offer to return to work within the stated restrictions. When we had a hearing to try to collect thousands of dollars in unpaid TTD for that time period, we lost. The judge’s ruling made it very clear that the case might have gone very differently if that client had at least tried to go back to work.
So my current client needed to know that one thing is virtually certain. If the employer offers work within the doctor’s restrictions, whether the injured worker agrees or not, if the injured worker declines the offer, TTD will stop immediately. So, I usually (but not always – every case is different) advise clients to at least try to work if it’s offered. For one thing, they may discover they can do the work, which would be great! But if they can’t, at least they can testify that they tried to work within the restrictions but couldn’t. That is much better than refusing and never knowing, then losing the case for past-due TTD.
This discussion is limited only to this client’s case, and it deals specifically with a situation where worker is offered a return to work under restrictions that the worker does not agree with before being placed at Maximum Medical Improvement (MMI). The analysis for return to work offers post-MMI is totally different and the subject of another blog post. Plus, each and every detail of an injured worker’s situation may change the analysis. This is why you need an experienced Indiana worker’s compensation lawyer on your side. Salmon & Hewins can help. We offer free consultations and there is no fee unless you recover.
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