How to Determine if You Remain Eligible for Workers Comp Benefits When Your Doctor Releases You to Return to Work
If the Workers Compensation Doctor Releases You to Full Duty Work Even Though You are Still in Pain and Unable to Return to Your Regular Job, You Can Keep Your Workers Comp Benefits if You Prove that the Doctor was Not Aware of All Your Job Duties at the Time of the Release
If you are reading this article, then one of two things has probably happened:
- Your treating workers compensation doctor told you that he or she has no more medical treatment to offer you and that you will have to live with your pain and other symptoms for the rest of your life; or
- Your treating doctor said you are released to return to work “full duty, no restrictions” even though you have suffered permanent impairment or have not yet recovered full function of your injured body parts.
Both of these situations are problematic.
First, if you have not recovered the full function of your injured body parts or have ongoing pain, numbness, or tingling or, in the case of a head injury, post-concussion syndrome and migraines, you may have trouble returning to work without restrictions.
Second, if your doctor releases you to full duty then you lose any job loss or financial protection you had.
Your employer’s workers comp insurer does not have to pay wage loss replacement benefits for temporary total disability or temporary partial disability after the date your doctor releases you to full duty with no restrictions. If you have a Workers Compensation Award Letter, the insurer will likely file an application for hearing to suspend or terminate your weekly disability benefits as soon as it finds out you were released.
Third, a full duty release may affect your ability to collect benefits under federal laws that often come into play following an on-the-job injury or the diagnosis of an occupational disease. For example, you may not be eligible to take protected leave under the Family Medical and Leave Act (FMLA) or get accommodations under the Americans with Disabilities Act (ADA) without a supportive physician. Losing this protection may result in losing your job.
But don’t give up. There are steps you can take to keep your workers compensation benefits.
The purpose of this article is to discuss your options when your workers comp doctor releases you to full duty work even though you continue to have pain, reduced range of motion, or limited function because of your work-related injury. I hope you use this information to keep the wage loss and medical benefits you deserve.
If you have any questions about workers compensation or are looking for a top-ranked work injury lawyer to help you win your case, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I’ve helped hundreds of injured employees like you negotiate fair workers comp settlement amounts. And I’m ready to help you and your family during this difficult time.
Did Your Workers Comp Doctor Release You to Full Duty or Light Duty?
When your treating physician releases you to return to work, the first step is to determine what type of release it is. There are two types: full duty and light duty.
What is a Full Duty Release?
Your doctor has given you a full duty release when he or she states that you are capable of returning to your regular job without restrictions.
What is a Light Duty Release?
Your doctor has given you a light duty release, also called a modified duty release, when he or she states that you are capable of returning to work with restrictions. These restrictions may address any of the physical or mental demands of the job you had at the time you were hurt. For example, your doctor may restrict your ability to: drive; lift; carry; push; pull; sit; stand; walk; run; reach; or, work in certain environments, such as near people or in fast-paced production facilities.
What Happens When My Workers Comp Doctor Releases Me to Return to Work?
The type of doctor release you get and where you are in the workers comp claim process determines what happens when you are released to return to work.
What Happens after a Full Duty Release?
If your doctor releases you to full duty when you are receiving weekly workers comp checks, your employer’s insurer or third party administrator (e.g. Sedgwick, Gallagher Bassett, ESIS, etc.) will file a pleading with the Workers Compensation Commission asking for permission to stop your benefits. So long as this pleading is filed with a copy of the full duty release, the insurer or claim administrator can stop your benefits automatically.
If you agree with the full duty release and believe that you are capable of returning to your pre-injury job, and your doctor states that you have reached maximum medical improvement (MMI), now is a good time to get an impairment rating and file a claim for permanent partial disability (PPD) benefits for loss of use of the injured body part. You can receive PPD benefits even if you have returned to full duty without restrictions.
What Happens after a Light Duty Release?
If your doctor releases you to light duty when you are receiving weekly workers comp checks, your checks should continue as long as you have an Award Order. The insurer cannot stop your checks unless you are released to full duty.
The insurer may, however, start vocational rehabilitation when you are released to light duty. The goal of this service is to find a job within your restrictions, which decreases the amount of money the insurer has to pay you.
If your doctor releases you to light duty between the date you file a workers comp claim and the date the Commission decides your case, you are required to look for work to receive wage loss replacement benefits. This requirement is known as the “duty to market.”
What Can I Do if My Workers Comp Doctor Releases Me to Full Duty But I Disagree with the Decision? Understanding When a Full Duty Release Isn’t Actually a Full Duty Release under Workers Comp
I wrote the first version of this article in 2017. Now, as I revise it in the summer of 2020, I can say that I’ve used the strategies outlined below to help two clients in the past month keep their weekly workers comp payments despite the treating doctor releasing them to return to full duty with no restrictions. Here’s how:
The law states that an injured employee is not able to return to their pre-injury employment until they are capable of performing all the tasks that were required or expected of them in their work at the time of the accident. It is not enough that you can perform 99% of your pre-injury job tasks. Unless you can do every single job task, you are not released to full duty with no restrictions.
Prove that Your Doctor’s Release is Not Based on an Accurate or Complete Description of Your Job Duties
In my experience few doctors (if any) know each and every duty and responsibility of specific jobs. Usually they have a general understanding of what their patients’ jobs require, but not an understanding of all the tasks expected of their patients by employers.
The first step, therefore, in dealing with a full duty doctor release you disagree with is to get a written description of your pre-injury job from the employer. Then analyze it to make sure that it lists all the tasks you were required to perform. If it doesn’t, write the additional job tasks on the written description.
Once you have a written document that includes all the job tasks you had to perform and leaving nothing out, you should (a) use the workers comp discovery process to send a written interrogatory or request for admission to your employer asking it to admit that your edited job description is correct and (b) make an appointment with your treating doctor to discuss the written job description, with your additions.
At the appointment, explain what tasks you are unable to perform. Your doctor may not have realized everything you had to do before you were hurt and may agree to provide written restrictions again. You can use these restrictions to keep your weekly workers comp checks.
If your doctor refuses to meet with you to discuss the written job description, you can use this refusal to your advantage. The Workers Compensation Commission will not find that you are released to full duty if you can prove that your treating doctor’s release is based on an incomplete or inaccurate description of your pre-injury job.
Prove that Your Doctor’s Release is Not Based on Your Current Physical Condition
I have lost track of the number of times that my clients have received work restrictions from their doctor only to find out months later that the doctor has released them to light or full duty without their knowledge
Usually this is the result of the adjuster, insurance defense attorney, or nurse case manager putting pressure on the doctor to release you from care using several methods, including social media posts and pictures or surveillance footage.
When this happens, you can take the position that the doctor’s release should not be given weight as evidence because it is not based on your current physical condition and is not accompanied by a contemporaneous exam.
Get a Second Opinion If Your Workers Comp Doctor Release You to Full Duty and Refuses to Consider All Your Job Duties, Or Change Doctors Completely.
When you disagree with your workers comp doctor’s decision to release you to return to work or from care, it is natural to want to get a second medical opinion or to change doctors in your workers comp case.
Generally, your employer or its workers comp insurer do not have to pay for a second opinion just because you disagree with the release to return to full or light duty. But there are exceptions to this rule.
If you disagree with your doctor’s release, ask him or her to refer you to another doctor for a second opinion. Usually the Workers Compensation Commission will find that your employer or its insurer must pay for medical care given at your treating doctor’s direction or referral.
If your treating doctor refuses to send you for a second opinion and the insurer refuses to pay for one, you can always see another doctor on your own. But you may have to pay for this appointment out of pocket or by using private health insurance or government-provided insurance coverage (Medicare, Medicaid, etc) if you have it.
You can also file a claim for a change in treating physician if you feel like your doctor has abandoned your care. These claims are difficult, but not impossible, to win.
Ask the Workers Compensation Commission to Appoint a Physician for a Medical Examination
If the insurer will not pay for a second opinion and you don’t have the financial ability to pay for a second opinion out of pocket, you can petition the Workers Compensation Commission to appoint a physician to examine you. This is one form of an Independent Medical Examination (IME).
Under Virginia Code Section 65.2-606, the Commission has the power to:
[U]pon the application of either party or upon its own motion, appoint a disinterested and duly qualified physician or surgeon to make any necessary medical examination …”
The Commission will pay the fees and expenses of the physician or surgeon.
This statute is a powerful tool to get a second opinion. But be careful using it. If the disinterested physician, which may be a neurosurgeon, cardiologist (if you have a heart presumption case), or orthopedic surgeon, finds you are capable of returning to full duty without restrictions or no longer need medical care, you will have a difficult time overcoming this opinion.
What Do I Do if I Need Medical Treatment for My Work Injury after the Doctor Releases Me to Return to Work?
If the Workers Compensation Commission entered an Award Order providing lifetime medical benefits for all treatment that is reasonable, necessary, authorized, and related to your workplace accident or occupational disease, you can continue to receive medical care at the employer and insurer’s expense despite the release to light or full duty.
The Commission recognizes the difference between a release to work and the need for additional medical treatment. It has stated: “A valid release to work is not dependent on the injured employee’s recovery to the point that no further medical treatment is required.”
It is common to need additional medical care, even after a release to return to work with no restrictions. For example, you may experience an exacerbation, aggravation, or temporary worsening of your symptoms after returning to work. Or you may require chronic pain management or palliative treatment, such as chiropractic services, to manage your symptoms so that you can continue to work. The Commission recognizes that you may not be symptom-free when you are released to return to your pre-injury job.
If your mental or physical condition worsens after your doctor releases you to return to work, don’t be afraid to ask for additional restrictions. Depending on when you were last paid benefits and the applicable statute of limitations, you may be entitled to additional wage loss replacement payments.
Can I Choose the Doctor I Want if My Treating Doctor Releases Me from Care and Says There is No Other Treatment That Will Help?
As with most legal questions, the answer is “maybe.”
You may be able to choose the doctor you want if your current workers comp physician has released you from care. But the facts of your case – and whether the insurance carrier has denied follow up treatment with your workers comp doctor – will determine whether you can choose your own doctor.
Because there is no guarantee that the Workers Compensation Commission will force the insurance carrier to pay for treatment with the doctor you choose after being released from the workers comp doctor’s care, you should talk with an attorney before you take this route. Otherwise you may have to deal with a large medical bill that is your responsibility, not the insurer’s.
What are My Options if I’m Released to Full Duty But My Employer No Longer Has a Job for Me?
Unfortunately the Workers Compensation Act provides no remedy if you are released to full duty but your employer no longer has a position open for you.
You may, however, be entitled to unemployment benefits.
Ask a Top-Ranked Workers Comp Lawyer to Guide You Through Return to Work Issues
Returning to work after an on-the-job injury can be intimidating. Especially if you have not recovered fully and feel like the insurance adjuster or nurse case manager have pressured your workers comp doctor into releasing you too soon.
You don’t have to go through this alone. Call me today: (804) 251-1620 or (757) 810-5614. I’m here to protect your legal rights.
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