Did laid-off employees’ job hunt cancel his workers’ comp?
March 8, 2010 by Fred HosierPosted in: Injuries, new court decision, Special Report, Workers' comp
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If doctors declare an injured worker totally disabled, what happens if he looks for work while he’s waiting to see if he gets workers’ comp benefits?
John DeHaven injured his shoulder at work in April 2005. He received temporary total disability payments until November 2005 when he took a light-duty position with his employer.
Three months after taking the light-duty position, DeHaven was laid off.
Eight months later, he filed a claim for workers’ comp benefits for his shoulder injury.
His former employer fought the claim using a few different arguments. But given today’s economic climate, this one is interesting.
DeHaven testified before the workers’ comp commission that he’d been looking for work since he was laid off. He said he had to look for work because he wasn’t receiving workers’ comp benefits and he didn’t have any income. DeHaven wasn’t able to find a job he was physically able to do.
His former employer said since DeHaven had looked for work, that negated his doctors’ opinions that his injury left him totally disabled.
The court didn’t buy the company’s reasoning. “We will not penalize DeHaven for seeking work despite his disability due to financial necessity, and we defer to the opinion of DeHaven’s treating physicians who concluded he was totally disabled,” the court’s opinion stated.
The court ruled DeHaven should receive temporary total disability benefits.
What do you think about this case? Let us know in the Comments Box below.
Cite: Land N Sea Distributing, Inc. v. DeHaven.
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March 9th, 2010 at 9:23 am
Just so my readers know, I am an employer.
Mr. DeHaven’s injury was temporary and total. So he could have sat at home until declared otherwise by a doctor. I admire Mr.’s DeHaven for accepting a light duty job, he did not have to he could have just taken a vacation.
Mr. DeHaven’s employer lowered the cost of the comp claim by providing a light duty job. This was actually a benefit for the employer.
I’m not sure why Mr. DeHaven was not receiving unemployment benefits since he was laid off.
If he was denied because he was not able then that goes back to Mr. DeHaven being penalized for accepting light duty work when he didn’t have to.
Since Mr. DeHaven was laid off then his employer didn’t really have the light duty job for him that the employer claimed to have. Perhaps the layoff was planned.
Mr. DeHaven was found to be looking for work which anyone in this country has the right to due any time they want. Mr. DeHaven was not discovered to be actually working, performing an activity that was contrary to his disability. In fact he was unable to find work that he could do.
Shame on his employer for providing a light duty job for Mr. DeHaven and then complaining that Mr. DeHaven was trying to replace that very same job after he was laid off. Thank goodness we have a few wise judges.
March 9th, 2010 at 10:14 am
We need more people like this in the world who are willing to work despire their limiting disabilities. The judge was wise in awarding temporary total disability benefits while this person transitions into a new type of job that can accommodate his disabilities. He should not be penalized for looking and trying to get off a system. He should be applauded and disability doubled just for the effort. Thank you courageous individual for having the courage to transition into a new job and continue to take care of yourself and your family. How many other people would throw up their hands and say let the system take care of me?
March 9th, 2010 at 11:22 am
Don,
I agree with you. The fact he was looking for a job should have no bearing on this. It is also true that no matter how commited you are to your employer in some cases they wil try to find any BS excuse to get rid of what some employers call “Dead Weight” or “Dead Wood”.
I am glad John DeHaven was given benefits. If I worked for that company when this info goes public I would certainly be considering my options for different employment.
It is great to see judges with the ability to “see through the smokescreen”.
Now, there is also another point of view here to look at. We don’t know if the injury was from neglecting safe operating procedures. Remember the guy peeing of garbage truck??? Remember that one. Here again, I probably would have a totally diferent view if certain facts where revealed.
So, based on the limited info here, I would go with the dicision presented.
March 9th, 2010 at 11:23 am
Yes… Thank goodness we have a few wise judges left, but they are dwindling fast.
March 9th, 2010 at 11:33 am
It seems like the employer may have gotten really frustrated in the end and let this guy go. Now they have to deal with the consequences of their decisions. This is probably going to be double or triple the cost now. Shame on the insurance company for not handling matters properly, or keeping up with the claim.
March 9th, 2010 at 1:51 pm
I think the ruling was fair. What did the company want him to do - starve to death? It seems that they were working hard to rid themselves of the entire issue. First by laying him off and then by denying the claim. Thank God he wants to work!
March 9th, 2010 at 2:02 pm
If the company no longer had light duty availalble to work within the employees restrictions he should have been able to go back to the temporary total disability status until his permanent disability was determined. Work Comp should have picked up his wages when the employer laid him off.
March 9th, 2010 at 2:21 pm
First, don’t give Mr. DeHaven any credit for taking the light duty. If the light duty restrictions are within the doctor’s retrictions, Mr. DeHaven had no choice but to accept the employer’s offer of light duty. Second, I question why Mr. Dehaven went from performing light duty to temporary total disibility. Without more facts, we don’t know if this person was a “faker” contributing to sucking the life out of the workers’ comp system or he was truely injured. I will researve judgement until I know more about this case.
March 9th, 2010 at 2:46 pm
As the story mentions, Mr. DeHaven was laid off after accepting the light-duty position.
I’ve added a link to the court’s opinion in this case. For anyone who wants more information about the case, you can click there. Even when the court’s opinion is available, we may not have all the details. In some cases, the only person who may truly know all the details is the person who was injured. If we had to have ALL the details, we’d never be able to discuss - or learn from - any previous court case.
At SNA, we’ll always try to provide a link to the court’s written opinion if it’s available without a charge, as is often the case these days. My bad for forgetting to do that for this story initially. Many state and federal courts post the opinions on their own Web pages.
Other resources for court opinions: findlaw.com, precydent.com, altlaw.org and findacase.com
March 9th, 2010 at 2:50 pm
Greg should be ashamed of himself. He is right that if you are offered light duty you have to take it, but more times than not it is the company that is guilty of fraud in WC cases. I worked for a company that spent over $100k to keep from letting me have a $15k operation. I had a “company” Dr that gave me a 0 disability rating even though I couldn’t walk from the front office to the examining room without breaking out in a cold sweat. I had to resign my job before they would even talk about a settlement that didn’t even give me enough to pay for my operaton and recovery, not to mention the 4 years they jerked me around in the process. I applaud Mr. Grant’s opinion and wish I had worked for him when I was hurt.
March 9th, 2010 at 4:36 pm
Smells fishy to me…most companies that have a worker that is significantly disabled (or totally disabled in this case) IMMEDIATELY begin plans for how to get rid of them. It becomes a clear-cut case of : ‘this guy can’t do what he was hired for, who cares if WE are responsible for getting him hurt, let’s can him’.
Hormel at one time trained their supervisors to look for employees (who worked at cutting meat) that were using their SHOULDER to twist their knives instead of their wrist. It meant their wrist was swollen via tendonitis or other WMSD. The supervisor would then lay them off to prevent worker’s comp cases. Now THAT is low…this company appears to have the same opinion: get injured, and you are useless to us.
It is an ironic (and unfortunate) reality that our best workers are usually the ones that get hurt…they are the ones doing a little extra, putting in a few more hours, going the extra mile, and that’s what gets them hurt. Employers need to find a way to proactively IMPROVE the quality of life for their workers, so they can keep their best ones at work where they can benefit the company.
March 9th, 2010 at 5:50 pm
Hey!!!! Do Not Knock Greg! If you read the entire paragraph….Greg simply states as I have also stated. There may be more information here we don’t know!
I really like Safety News, but over the time I have viewed these articles, I find that many times the data given supports the ruling also.
I appreciate your opinion but please do not use this website as a place to slam others.
March 9th, 2010 at 8:33 pm
I agree with Greg. The associate must take the light duty if they can perform it or else be denied benifits. Also, most employers are not the ones that commit fruad it is the associates. Doctors are also quick to give their patients any restricitons or meds or time off work the associates want regardless if there is no medical reason for it. It was the right thing to do to pay the associate for being off work. He was injured at work and was unable to find employment due to the injury. Now, the facts stated are limited so we can only go by what the artilce said.
March 9th, 2010 at 11:17 pm
We all too often look to place blame. The company must keep running, the employee must keep working. So everyone has an angle. The company cannot insist on light duty without the doctor stating the employee can in fact perform in a light duty status. Nothing states you cannot “lay off” a person on light duty, but, then it is the companie’s obligation to ensure workman’s comp picks him/her up. Yes, the company wants that person, who is not 100% or may never be, gone. It’s a company in requires workers at 100% to perform as it should.
Why was the employee not on unemployment? Why was he not receiving workman’s comp? As stated there is not enough info.
But, until we know, let’s not blame the company, that’s what they (we) do. Let’s not say the employee was a slacker as we don’t know.
Doc
March 10th, 2010 at 6:26 am
I feel that this ruling was fair because he could have laid out and did nothing but he continued to take care of himself.
The company should greatful that he accepted light duty.
March 10th, 2010 at 8:52 am
It’s sad how some people are cynical of people who are injured. Being a military veteran I’ve had my share of broken bones, dislocated shoulders, kidney stones, and other ailments and I can assure you the pain is very real. Having my body go through wear and tear I am more sympathetic toward others but I am also very observant. If someone twists their left ankle and they are limping on the other ankle I do notice. Very politely I will discharge these people from work without thinking twice. A broken ankle and limp does not transfer to the opposing leg by osmosis. It is not our job as employers to questions the significance of pain because we are not the medical experts. Tests are in place to measure degree of pain and in some instances physical therapy session can verify range of motion. Not by pain but by pushing thresholds where the body obviously gives resistance which can not be faked.
March 10th, 2010 at 10:08 am
Now that the government is voting to extend social unemployment benefits to a now record 2 years at a whopping unfundable $10B per month going forward it will be hard to imagine many more examples of workers actually wanting to go back to work for ANY reason unless it is some position befitting their self perceived status in life.
We are fast becoming a nation of people now feeling entitled to a free lunch, job, house, benefits, health care and whatever the screwballs in Washington think we all need. Actually watching this video here from that ever successful city - Detroit, we may be already there…….
http://tinyurl.com/yej6z36
Bravo to DeHaven for having what looks like some integrity in seeking work.
March 10th, 2010 at 11:17 am
Martin, not all people share your philosophy regarding “We are fast becoming a nation of people now feeling entitled to a free lunch, job, house, benefits, health care and whatever the screwballs in Washington think we all need.” I have a friend with a doctorate degree in pharmacy who was unemployed for almost 1 year and she lost her home and her car. When you are use to living on a 6 figure salary, Florida full unemployment of $247/week does not cover an 1800 mortgage, car payment, insurance, groceries, medications, and other needed items. I’m not discussing “wants.” When I separated from the military I was unemployed for 6 months. I also had a 1800/mortgage, 2 car payments, condos and other things. I’d rather work at Wendy’s to earn an extra 300-400 per month then stay home earning $247 a week. You can not feed a family and handle an average lifestyle on less than poverty unemployment income. In this situation mortgage goes out the window and everything else crumbles. I find it unfathomable to think people want to live in squalor and decide between eating or getting urgent medications. Personally I know I do not want to live in this situation and neither do my professional colleagues who are used to a better standard of living. I can proudly say I earn my food and I cook it to my specifications. I don’t and have not relied on anyone for a handout since I left my mother’s home as a teenager.
March 10th, 2010 at 12:34 pm
I agree with many of the previous comments. We do seem to be becoming a quite complacent country. Which affects both the corporate stance as well as an employee’s desire. I am the type of person that will work through an injury or what-have-you and have been on both sides of this equation. It seems that a lot of loosely definitive terms have been applied to this situation. It may have been completely avoided by succintly defining what could or could not be done. I applaud Mr. DeHaven for trying to take care of himself and/or his family by searching for work that he could do so he could have an income. I think there is far too little of the “pull yourself up by your bootstraps” mentality these days. People are ready to accept any lazy way out that they can find. However, I think the company was also looking after it’s interests as well. However, I think that companies have slid more toward bean counting to make their dollars and to make them look better on paper than toward actually taking care of the company. Now, back to my original theory, if a more concise definition had been provided for “light duty” or by negotiating what could or could not be done by Mr. DeHaven, this whole mess probably could have been avoided. Maybe Mr. DeHaven was the over achieving type of person that consistently does more than required. Maybe his “light duty” was actually more than some other employees around him. If it were a question of performance, why weren’t they canned for lack of ability to perform job duties? Then again, maybe Mr. DeHaven was in fact a slacker all the time. Then this was just an excuse to get rid of him anyway. And yet another possibility is that maybe Mr. DeHaven was just a normal, average guy that got caught in the corporate paper-world. As an employee, it is/would be very comforting and endearing to work for a company that would go out of their way to take care of ALL their employees. It makes an employee want to work harder for that company. As an employer, I would want to ensure all my employees’ needs were taken care of. That would again, hopefully, inspire my employees to go that “extra mile” for me as well.
I agree with the court’s decision based on the information that was provided. Also based on the information provided, I applaud Mr. DeHaven for his tenacity. And similarly, shame of that company. By taking care of your employees, you are only taking care of yourself more.
March 10th, 2010 at 1:32 pm
As someone who has both been injured on the job and who is an employer now, I can see both sides of this issue quite clearly. As the employee who is permanently partially disabled, I know how frustrating it is to wade through the maze of requirements to even collect benefits. If the Worker’s comp insurance company drags their heels and trys to deny the claim, then of course the employee becomes desperate for money and may take a settlement they might not otherwise accept. They would likely also seek unemployment benefits - but with the pending worker’s compensation case I don’t know that they are technically eligible for such benefits. Once the comp case is determined to be valid and he was to begin receiving payments, he would have to reimburse the state for any unemployment benefits he received.
As far as the light duty position is concerned, yes he most definitely would have been REQUIRED to take that light duty position PROVIDED the Worker’s comp doctor as well as his doctor both certified him capable to perform all of the duties required of that light duty position. If he was deemed unable to perform all of the duties by the company and was laid off for that reason, then it would go back to worker’s comp for review.
I have multiple worker’s compensation injuries that have left me permanently partially disabled in multiple ways. I know there are numerous people out there who game the system, but that just makes it harder for people such as myself who have legitimate permanent injuries and restrictions to obtain the benefits we deserve.
Please don’t judge either the company nor the employee without having more details to know what happened when and why.
March 11th, 2010 at 5:22 pm
Bill says:
it’s a good thing that Mr. Dehaven didn’t work in the great state of California.
In CA after you have been on Worker’s Compensation for four month’s the company can legally fire you.
You still get your Worker’s Compensation check until you are able to go back to work, but you have to pay for your own benefits and find yourself a new job when you are able to go back to work.
Also in CA, you are not allowed to file suit against a Worker’s Comp. carrier even if they deny you the benefits the court says you are allowed to receive.
My wife was out of work for five years with a severe herniated disc in her back and we were sold down the river by both our personal injury attorney and our Workers Comp Attorney.
She wound up permanently disabled, out of a job, and she doesn’t even get medical care for her injury.
Both our attorneys were so crooked they had to have help to screw their pants on in the morning.
Be careful who you choose to represent you.
April 18th, 2010 at 9:44 am
I got injured at work 14 months ago, since than I have been on workerscomp & getting paid . had two surgeries, and awaiting for the authorization for the shoulder & spine surgery. My employer is one of the larget defense compnay in the world. I am in state of california.
Two days ago, I got my 60 days layoff notice. First I thought, It is a mistake. How could I get laid off, while I am not released for work from my company’s chosen workers compensation Doctor & awaiting for the authorization for more surgeries.
Part of the layoff benefits is, to apply for the unemployment benefit & look for other job, unfortunatelly, I even would not be qualified to apply for unemployment benefit , nor able to look for another job, within the company or outside” becuase I have not been released for work yet”.
April 19th, 2010 at 11:46 am
So your unemployment benefits don’t continue if you’re laid off? I’m not familiar with procedures but I would think they are independent of eachother because you were hurt at work. Someone please clarify.
April 20th, 2010 at 12:41 pm
I have verified with my HR. He clearified the issue with me. He said, when you get release to work, on the first day, when you report to work, there would not be a job for you, and the first day of your work going to be your last day of the work. He also added, if you get released to work within next 60 days, you can work, until the end of the 60 days “60 days from last week”. Anyway, I am going to have two major shoulder & spine surgery in the next few months. I even don’t know what kind of work restriction, I am going to have, after the surgeries. The largest company in the world, which I got injured there, is letting me to go. By the way, he clearified that, it would not have any impact on my workers comp situation, while I am on disability, he aslo added that I will be qualified for the unimployment benefit, upon on my medical release to work.
June 5th, 2010 at 1:22 pm
I have no clue why alexa sent me to this blog but I can say I am now actually entertained by the blog content you have together. How many years did it take so many people coming to your website? I am very new to this blog thing.
August 18th, 2010 at 8:22 am
Its about time. employers are always looking to screw over the employee for an extra dollar. This kind of stuff happens all the time…. in more ways that just this example.