You are excited.
Not much has gone right since you hurt your back at work months ago.
But now, after months of treatment, including lumbar fusion and total disability, your doctor has provided work restrictions of no lifting more than twenty pounds, just like the functional capacity evaluation (FCE) report said. And your employer says it has a light-duty job that accommodates your restrictions. Finally, you can return to work.
Unfortunately, your excitement does not last long.
You arrive at work only to discover your employer ignoring your work restrictions. Instead of limiting you to lifting twenty pounds, your employer wants you to help move heavy beams weighing over fifty pounds. When you remind your boss that you can only do light duty, he gets mad and tells you that an employee in human resources says the job is within your restrictions, so you can complete the task or quit.
What do you do?
This article explains your options when your employer ignores your work restrictions and refuses to accommodate the limitations prescribed by your treating physician. As you will see, violating your work restrictions to appease your employer puts your workers compensation benefits at risk. Even worse, the employer’s decision to ignore your restrictions and ask you to do tasks you cannot safely perform increases the risk of worsening your injury or suffering a new one.
After reading this article, you will know your employer must follow your doctor’s orders and what you should do if your supervisor asks you to do a task that exceeds your temporary or permanent work restrictions. Refusing to sign a termination of wage loss award, filing a change-in-condition application seeking the reinstatement of temporary total disability (TTD) benefits, or negotiating a workers compensation settlement from a position of strength because you will have ongoing entitlement to income replacement payments might be the next step.
Here are steps you can take when your employer ignores your medical restrictions and asks you to exceed them.
An occupational injury that results in missed time from work and a workers compensation claim can lead to bad blood between an employer and the injured employee.
Naturally, these feelings and your frustration with the employer or the workers comp claim adjuster may cause you to assume the worst when the employer appears to ignore your work restrictions and asks you to exceed your doctor’s orders.
But maybe it’s a mistake.
Sometimes the company representative (often a person in human resources) thinks you can perform the light-duty role with your restrictions but doesn’t fully understand all the tasks required because they have never done that job. With this new knowledge of the job requirements, a few adjustments to your duties (like assigning someone to help you lift heavy objects) may allow you to keep working without exceeding or violating restrictions.
Or your doctor may have written a vague work status letter that requires clarification. While I prefer when physicians give detailed letters naming specific job tasks you cannot perform, obtaining that type of note in every situation is unrealistic. Some doctors (orthopedic surgeons especially) are too busy or uncomfortable giving a specific opinion on work status. And vagueness leads to disputes over a claimant’s ability to work.
Your conversation with the employer will help you and your workers’ comp lawyer determine if there is an actual dispute to fight about or a misunderstanding that you and the employer can clear up to allow you to stay in the labor force.
Usually, a conversation with the employer’s human resources or safety manager fixes this problem and leads to a position within your restrictions or the employer communicating to the insurer or third-party administrator (e.g., Sedgwick, Gallagher Bassett, ESIS, etc.) that it cannot accommodate your limitations and workers comp payments should continue.
But that’s not always the case.
Sometimes, the employer will keep ignoring your restrictions, all while telling the insurer that it can accommodate your limitations.
You have two options in this situation:
First, stop working, call your attorney, and schedule an office visit with your physician to discuss the problems with the position offered.
Under workers compensation law, your employer cannot force you to return to work if it cannot accommodate work restrictions related to an occupational injury or illness.
Instead, your employer must pay wage loss benefits if you cannot return to work (presuming you meet your burden of proof on other issues, including marketing your residual capacity). It can also start vocational rehabilitation efforts to help you transition to a new role, either with it or with a new employer. But it cannot make you work outside your medical restrictions.
Forcing the insurer to reinstate wage loss benefits may take time. You may even need to go to trial and win a workers’ compensation hearing. But, if you can prove the employer ignores your restrictions, you have a winning argument. Case law says an employee’s refusal or abandonment of light duty is justified when the position is inconsistent with the treating physician’s instructions.
Further, you can increase your likelihood of success by making an appointment with your doctor and obtaining a letter that explains why the light-duty job exceeds your restrictions and how it can harm you more.
Second, you can ignore your doctor, perform activities that violate your medical restrictions, and hope for the best.
I recommend against this.
I understand you.
You are thinking about ignoring your work restrictions. The last few months have been some of the most challenging of your life. And you are ready to get out of the house and back to employment. You do not want to risk going without income for an extended period while your attorney fights for the reinstatement of wage loss benefits.
But the short-term “gain” of going along with your employer ignoring your restrictions is not worth it for two reasons.
First, no amount of money is worth your health. As a retired, former commissioner of the Workers Compensation Commission often says during settlement mediations, there are a lot of millionaires who would trade their money for health.
Your doctor recommended these limitations to protect your health and safety and help you avoid more damage to your body.
Violating these restrictions puts you at an increased risk of a new injury or an aggravation of the one you suffered. With this injury or aggravation will come more pain, missed time from work, disability, and permanent impairment.
Avoid this risk to your health by following your restrictions.
Second, workers comp may not provide a safety net if you suffer a new injury or a worsening because you ignore medical restrictions. And for all its weaknesses, workers comp is often the exclusive remedy to cover lost earnings or medical bills for an occupational injury.
Numerous judicial opinions from the Workers Compensation Commission, including this one, have held that an employer is not responsible for an injury (or aggravation of an existing injury) that results from the employee knowingly violating medically imposed restrictions. Ignoring restrictions puts the employee in the position to suffer a predictable and expected injury, making the employee liable for the work-related injury because an injury by accident must be unexpected to be compensable.
You will have difficulty obtaining wage loss payments if the Commission finds that you intentionally violated medical restrictions, leading to a new injury or worsening an existing injury. The burden shifts to you to prove that the employer had actual knowledge of any limitations imposed by your physician and that you had a credible concern that the employer would have ended your employment if you refused to comply.
In my experience, you have a better chance of persuading a judge you were justified in refusing to perform work outside of your restrictions than persuading them you had a legitimate reason to think the employer would fire you if you did not exceed your prescribed limitations. Especially if you make an appointment with your doctor after the employer ignores your restrictions and ask the physician for a letter explaining the problems with the offered job. Speculative arguments about employment concerns are more difficult to prove.
The workers comp claim process presents constant challenges and raises many questions.
Our law firm can help.
Call 804-251-1620 to see if we will accept representation.