In Pennsylvania, if you suffer a work injury that prevents you from performing your regular job, your employer has the right to offer you restricted duty employment. Many employers have light-duty programs that provide alternate work to injured employees for periods lasting anytime from a few weeks to indefinitely. Both the employer and the injured employee must act in good faith in offering and responding to an offer of light-duty work. An employer, for example, does not have the right to take measures designed to hinder an employee's return to work. The employee, on the other hand, cannot refuse a position because it is “demeaning.”
Under most circumstances, you should at least try to perform the light-duty position. If you do not make an attempt and a workers’ compensation judge later determines that you were physically capable of performing the job, you run the risk that you will lose your benefits. It is not at all unusual in these circumstances for an employer representative to testify in your workers’ comp case that they would have accommodated any restrictions had they been informed of them. You should hire an attorney if you're asked to return to light-duty work. Most good law firms will not charge you for advice they give you on this crucial issue.
What happens after I return to restricted duty work?
Most employees have no problem with light-duty work, and most employers offer such work in good faith and will work with you to make sure that you are safe and productive in the workplace. Some employers, however, engage in very dirty tactics, which I describe in my article, "The Seven Most Ugly Tactics Employers Use to Harass Injured Workers." Even if you trust your employer, you may want to review this article before you return to work.
The following is a discussion of some of the most frequent issues that arise when an employer offers light work.
Labor Unions and Light Duty
If you're a member of a labor union, check with your shop steward if you are offered light-duty work. There may be sections of your union contract that you should understand before you accept such a position. Among other things, there may be seniority rules that prevent you from "bumping" a more senior employee from a light-duty position. Do not, however, take the law into your own hands. As discussed above, if light-duty work is offered to you and you do not make a good faith effort to follow through, you may end up losing your benefits. You may need to accept a light duty job even if doing so violates the collective bargaining agreement and rely upon the union to file an appropriate grievance.
Act promptly in response to an offer of light work.
Injured workers must act promptly in response to an offer of employment. If the employee is expected to start work on a particular day, failure to do so could endanger the employee's workers compensation benefits. You are free to request an extension of the starting date or time, but if it is not granted, you better have a very good reason for failing to show up for work. If it is granted and you do not show up for work on time, the employer has the legal right to withdraw the offer.
What if there is a dispute between my doctor and the company doctor concerning my physical capabilities?
Often there may be a significant difference of opinion between your doctor and an insurance company doctor who performs Independent Medical Evaluations (IME's) concerning your physical capabilities. Your doctor may feel that you are incapable of any work while the IME doctor believes you are capable of sedentary or light work. There may be differences of opinion about how much you can lift, how long you can stand, or other restrictions. While it is important to ensure that you do not engage in physical activities that worsen your condition or cause you significant pain, under most circumstances you should err on the side of caution in the event of a dispute between your doctor and the company doctor concerning your physical capabilities. If a judge later finds that the IME doctor’s conclusion concerning your restrictions was correct, your failure to try a job that fits those restrictions will probably result in the loss of your benefits.
All too often, injured employees refuse to show up for light-duty work, which almost always will result in a petition to cut off their benefits or a refusal to pay benefits in the first place. Remember that you have an obligation to act in good faith. If your doctor provides restrictions that are greater than the restrictions of the company doctor, provide that information to your employer and see if they will accommodate them. Even if they are not willing to accommodate you, under most circumstances you should at least try the job offered. Your testimony in a workers’ compensation case will be much more credible if you can explain what happened after you returned to work. If you return to work and your employer provides you with safe and productive work, you have little reason to complain if you are physically capable of performing the job. If you ignore an offer of light-duty work entirely, relying upon your physician's opinion concerning your physical capabilities, don't be surprised if a workers’ compensation judge gives your employer, and not you, the benefit of the doubt.
Employer Vocational Experts
In "Watch Out: Vocational interviews and Pennsylvania Workers' Compensation," I discuss experts whose sole function is to create a legal basis for the insurance company to file a petition to reduce your workers' compensation benefits. Before they do so, the insurance company must prove that your employer has no available light-duty work. Pennsylvania law requires employers who have job vacancies that injured employees are capable of performing to offer such jobs to them before they can reduce their benefits based on the opinion of a vocational expert.
An employer is permitted under Pennsylvania law to require an employee to work a restricted duty position at another firm even though it or the insurance company is paying the wages (“funded employment”). For example, an injured employee may receive notice of an available position a charitable organization such as Goodwill. This tactic is usually used in connection with profoundly injured claimants. Employees whose injuries are so severe they qualify for Social Security Disability benefits may be forced to accept a funded employment position, despite the fact that there is no reasonable prospect that any employer would hire them. Charitable organizations such as Goodwill, however, can use all the help they can, and getting an employee whose salary is being paid by an insurance company is an offer many such organizations can't resist.
“No Duty” Jobs
Even worse, "no duty" positions in which employees are required to do such things is sit or stand in a particular spot doing no work at all are permitted under Pennsylvania law. It is best not to deal with a “no duty” position without an attorney. For more information, see my article, “The Seven Most Ugly Tactics Employers Use to Harass injured Workers.”
Miscellaneous Issues: Commuting Distance, Child Care Expenses, and Non-work Related Medical Conditions
Where an employee's family relocates out-of-state due to the spouse's employment, a job offer in Pennsylvania is not actually available because it is not within a reasonable commuting distance of the employee's current residence. On the other hand, an employer need not prove the existence of available jobs if the employee is an undocumented worker. Furthermore, an employer is not obligated to prove that a particular job is consistent with the employee's non-work related medical conditions. Finally, child care expenses are not to be considered in determining whether a job is available if the employee arranged for and paid for child care before he suffered the work injury.
I hope this article helps people to gain a basic understanding of their rights and obligations with respect to light duty work. Feel free to call me anytime with any questions. For an inside look into Pennsylvania workers' compensation, download or order a free copy of my book, The Wounded Worker: Inside the Pennsylvania Workers' Comp Maze.