Back-to-work offer didn’t say ‘light duty’
August 22, 2011 by Fred HosierPosted in: Falls, In this week's e-newsletter, Injuries, Latest News & Views, Special Report, What do you think?, Workers' comp, new court decision
Dealing with workers’ comp is frustrating enough. But losing a case over a technicality is even more so.
Michael Dunn was a police officer for Upper Darby Township, PA. While trying to restrain a burglary suspect, Dunn fell and suffered injuries to both his shoulders.
After surgery on his left shoulder, he returned to light duty work for about six weeks, but Dunn still suffered pain in his right shoulder. Later, he had surgery on that shoulder, too.
Dunn entered rehab for one year, including a program called “work hardening” designed to improve his ability to perform the physical tasks specifically required of a police officer.
After a year, the surgeon who had operated on him twice determined the former officer still had upper extremity weakness and had reached maximum medical improvement. The surgeon said Dunn couldn’t return to work as a police officer.
The township sent Dunn to another surgeon for a second opinion. After seeing him once, the second doctor said Dunn had fully recovered and he could return to work.
Dunn received a letter telling him to report to his old job within a week. When he didn’t return, the employer filed to have his workers’ comp benefits terminated.
Two missing words
A workers’ comp judge ruled in Dunn’s favor and an appeals board agreed. Both agreed that the employer had failed to prove (1) Dunn had fully recovered from his work injury or (2) that the employer had work available that Dunn could perform.
The township took the case to a state court, claiming that the appeals board erred in not finding that Dunn could return to work in a modified job that was offered to him.
Whether Dunn could return to work came down to one doctor’s opinion against another’s. The court noted that Dunn’s surgeon had been his treating physician from the start, had performed both surgeries on him and oversaw his rehab program. The company’s doctor only saw Dunn once. So the court said the opinion of Dunn’s doctor was more credible.
Captain Anthony Paparo, Dunn’s supervisor, testified he was ready to accommodate him with light duty work. Dunn had told the employer’s doctor he thought he could return to light duty.
But the court noted that the employer didn’t specifically offer Dunn a light-duty job. It said a generic return-to-work letter wasn’t sufficient and Dunn couldn’t make a decision about returning to work without more information about what his duties would be.
For those reasons, the court refused to terminate Dunn’s workers’ comp benefits.
It appears Dunn and his captain could have come to an agreement about light-duty work. However, failure to communicate better — and the missing words “light duty” on the return-to-work letter — doomed resolution in this case.
(Upper Darby Township v. Workers’ Compensation Appeal Board, Commonwealth Court of PA, No. 2063 C.D. 2010, 8/10/11)
Do you think the court’s decision was correct? Let us know in the comments below.
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Tags: light duty, rehabilitation, shoulder injury, Workers' comp
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August 22nd, 2011 at 12:50 pm
Based on the information provided in the article, I believe the Court had better reason to deny the Township’s request to terminate benefits. To base denial on the diction of the return-to-work letter is not only lame, but sets a dangerous precedent that will be used in determining future cases.
August 23rd, 2011 at 7:40 am
Why didn’t the employee call his supervisor as ask what his duties would be if he was so concerned. Sounds like he decided sitting home and getting paid was better than working
August 23rd, 2011 at 7:45 am
I have been on all sides of the fence; I received a knee injury at work more than 25 years ago that required multiple surgeries and lots of rehab. I was off work for a year and never felt pushed into going back. My experience was awesome and I had no complaints nor did they leave me with any needs.
My husband, who called in sick only a few times in 10 years, received an injury at work 10 years ago that required multiple knee surguries, rehab, and injections in his back. His injuries were worse than mine. He was off work for about 2 years. He started seeing the doctor the company reccommended the day after the accident and continued with that Dr. Every week brought a new battle; this week they were stopping his check, this week they were refusing to pay for surgery, this week he could go back to work. We would have an Emergency Hearing and would win, but would have gone several weeks without his check by then. It was a miserable time.
I have also been Employers Insurance Companys contact when we have had an injury. These two experiences have been very beneficial for me to experience. We all want to keep our rates low but what is the morally right thing to do. Our employers who get hurt are not a “knee” or a “back”, they are husbands, wives, parents, children. The first duty we have to our company is to get our employees the best care they have access to
August 23rd, 2011 at 8:00 am
Working in Risk Mgmt I always hate to see these decisions, however; we conduct due diligence for every lost-time claim when crafting the RTW letter and most importantly, ensure that it is ‘Case Specific’ for the employee involved (i.e. - Although a costly lesson, the township was wrong and fair-is-fair. Generic may appear to be adequate and certainly less time involved but was it worth it???).
August 23rd, 2011 at 8:58 am
Indeed, the letter should have stated light duty; especially with police work, there is a WORLD of difference between active and light duties. Common sense (not often used in these cases, so good to see here) also dictates that the determination of the doctor who cared for the patient for an entire year would far outweigh the opinion of a doctor who saw the patient only once. It would be a better world if the two doctors and the patient could all three communicate in an open and honest dialogue, and if that information could then be shared with the employer.
August 23rd, 2011 at 9:52 am
Limited or light duty is not meant to be a perminent career path, but rather a temporary work assignment to allow the employee to remain plugged in to the job during recovery. An example is a equipment operator who breaks a leg. The limited duty assignment is designed to allow him to remain in the workplace functioning within his restrictions while he is going through the healing process. Once an individual reaches MMI, by definition, he is not expected to improve further and it is time to remove light or limited duty from the table and begin looking at return to work in either the original position or a perminent “alternate” position in which the employee can perform all essential functions with or without a reasonable accommodation. If there is no standard for determining when an employee should move beyond limited or light duty, an employer would be expected to “carry” an employee for life, regardless of limitations. That was never the intention of The Americans with Disabilities Act nor the laws governing Workers Compensation. The department should have discussed alternate employment with the Officer and facilitated return to work in a job that he could perform. If additional healing occurred, the officer could have been re-considered for perminent full duty.
August 23rd, 2011 at 11:55 am
I think the courts were wrong on the light duty issue. At the time the employer instructed the officer to return to work, they were acting in good faith because they had a medical opinion that said the officer could return to full work. At that point the employer had no idea how the courts would rule or that the officer would protest. However, a long time savy employer should have anticipated the ramifications of the difference between the two doctors.
Yes the officer should have, at that point, had a conversation with his employer. He should have dicussed with the employer his concerns of jumping right back into full work. He could have negotiated a couple or few weeks of desk work and work into full work again. If he could never get back to full work, then he could have petitioned to reopen or request a hearing.
I don’t think the courts should have penalized the employer on the point of “return to work offer not including the words light duty” because the employer was following the opinion of the second opinion of full work. The courts did have every right to grant the officer a permanent impairment based on resolving the credibility of the two doctors!
August 23rd, 2011 at 2:33 pm
Jan
Calling his supervisor and asking for a verbal description of light duty would not have gained him anything, unless it was also put in writing. A full work release without restrictions is just that. Since he told the company doctor he could work light duty it doesn’t seem he is lazy, just needing clarification of what he would be required to do once back at work. The medical release should have been more specific.
Bobbi
August 29th, 2011 at 12:08 pm
Why are we still asking doctors to make vocational decisions? Did either of these doctors have any objective evidence about this employee’s physical capabilities? Did the employer have an accurate job description that actually lists the physical demands required to do the job? (”must lift 50 lbs or more” or “must be able to restrain an individual” is not sufficient to identify the physical demands!) Doctors are not trained to make these decisions, but we keep asking them to do so. Get some objective, functional information on the employee’s abilities and see if that matches up with an accurate job description that identifies the required physical demands. Stop asking doctors to guess about work abilities!
August 31st, 2011 at 8:50 am
Michelle, the only place to get “objective, functional information on the employees abilities” after an injury is through their doctor or any one in the field per say.
August 31st, 2011 at 7:30 pm
Bill - I beg to differ. Most doctors don’t come close to providing “objective” information - they either simply ask the patient what they are capable of doing, or they place their best “guesstimate” on what they think the patient can do, based on their experience with other patients. Some doctors have cookie cutter work notes, for example, a person with a sholder injury, will always receive a note: “No lifting over 10 lbs and no lifting overhead.”
A physical or occupational therapist, trained in evaluating physical abilities, is most capable of providing that objective information about what that patient can do and provide some actual numbers regarding the amount of weight the person can lift and at what level, among other things. Fit for duty testing or Functional Capacity Evaluations by someone who’s trained to provide them, is much more accurate.
Further, the AMA Guide to Functional Testing clearly states that physicians are not trained to provide functional assessments, unless they are trained to do functional capacity evaluations (most are not). Therefore, they should refer their patients for this type of testing when determining their ability to return to work after an injury.
September 2nd, 2011 at 2:57 pm
Oh Michelle, A physical or occupational therapist is in the same working field per say as doctors are.
With that said, I have never heard of anybody with this type of work related injury not being prescribed by his doctor to see a therapist for rehab. Nor have I ever heard of a therapist not reporting his conclusion to the doctor who sent him. That is how a doctor can give proper instruction to the employer or as you call it “objective information”. In this case the doctor that was paid by the employer to state it was alright for the employee to return to work had no functional assessment to provide at all.