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May 3, 2014

3 Essential Elements of Any RTW Program

Summary:

The best return-to-work (RTW) programs resolve three problems before they can even become problems.

At many different employers and insurance carriers, I’ve noticed every company has a slightly different light-duty program (or return-to-work (RTW) program). The more successful always have these three elements:

1. Ensure the injured worker’s job duties do not exceed medical restrictions

I have faced this situation many times: Employer tells claimant to return to work in a light-duty position. The job duties, however, exceed the claimant’s work restrictions, and the claimant leaves work. Employer doesn’t want to pay temporary total disability (TTD) because a light-duty job was given to the claimant and he refused to do it. The judge or arbitrator, however, orders employer to pay TTD because the light-duty job exceeded the claimant’s work restrictions. No one is happy about this type of situation.

To ensure that the claimant is not placed in a light-duty job that exceeds his work restrictions, every employer should have documentation that lists the specific duties and task analysis for every job. In other words, the documentation should spell out the amount of lifting required by the position, the frequency of repetitive activities, the amount of stooping and bending required, etc. This way, if the claimant attempts to assert that the job exceeds his work restrictions, the employer will have documentation to demonstrate that it does not. Without this type of documentation, the judge or arbitrator would have nothing more to go on than the claimant’s testimony at trial.

Remember, a judge or arbitrator will order reinstatement of TTD benefits if the light-duty job exceeds the claimant’s work restrictions. This kind of pitfall can be avoided before it happens.

2. All return-to-work offers must be in writing

Another common situation: Employer tells claimant over the phone that he is to return to work on Monday. Claimant doesn’t show up for work; TTD benefits are terminated; and often the claimant’s position is eliminated because of his no-call, no-show. Twelve months later, when the case goes to trial, claimant testifies that employer never asked him to return to work. I produce the supervisor as a witness, who testifies that he told claimant over the phone to return work. Claimant testifies that was never said. Judge rules in favor of the claimant and orders employer to pay 12 months of TTD benefits even though we offered to bring claimant back to work.

This trap is easy to avoid. Make sure that the return-to-work offer is always in writing — email works just as well as a mailed letter. With this, claimant cannot later say he was never told to return to work. The problem is solved before it ever has the chance to become a problem.

3. Make sure that the light-duty job passes the “straight face” test

If you follow this link, you will see a story from Louisiana where Walmart assigned a claimant on light duty to sit in a chair in the restroom.

This is an example of a light-duty job that does not pass the “straight face” test. If this claimant were to simply walk off the job, he would then argue that this was not a legitimate job, and, in all likelihood, a judge or arbitrator would agree with him. Claimant would then be awarded TTD benefits even though the employer tried to return the claimant to work.

Make sure the RTW job fulfills some legitimate need or purpose within the company. If you use this Walmart example, it would have been perfectly acceptable to have the claimant clean the restrooms as part of his light-duty job. Walmart could have told the claimant to sit outside the restroom and monitor the cleanliness of the restroom every 30 minutes or so. However, ordering him to actually sit in a lawn chair in the restroom transforms what would have been a legitimate job into one that appears vindictive and illegitimate.

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About the Author

J. Bradley Young is a partner with the St. Louis law firm of Harris, Dowell, Fisher & Harris, where he is the manager of the workers’ compensation defense group and represents self-insured companies and insurance carriers in the defense of workers’ compensation claims in both Missouri and Illinois.

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