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Light duty assignments create risks

Posted On: Jun. 5, 2016 12:00 AM CST

A recent court ruling should motivate employers to ensure return-to-work programs include frequent check-ins with injured employees performing transitional jobs.

Affirming a decision by the Louisiana Office of Workers' Compensation, a three-judge panel of the state's 5th Circuit Court of Appeal last month ruled that an injured St. James Parish Schools teacher's modified position was inappropriate considering work restrictions provided by her treating physician and duties that were not accurately stated in the job description.

Though some sources familiar with the case said another court might have ruled in favor of the Lutcher, Louisiana-based school board, they agree the decision highlights the im-portance of clearly defining modified duty or transitional work, as well as frequently checking in with injured workers to assess functional improvement and progress to full duty.

According to court records, Dena Wempren's treating physician determined she was unable to return to work pending treatment for a compensable injury sustained in January 2013, when a student pulled a chair out from under her as she was about to sit down. However, an independent medical examiner said she could return to light duty.

Ms. Wempren worked with the school's administrative director of human resources and a vocational rehabilitation consultant to create a modified position, which she started in January 2015 to prevent her workers comp benefits from being “adversely affected,” records show. Despite remaining in the position until the end of the school year “with no reported issues,” she filed a claim in April 2015 stating she performed duties that were not included in the agreed-upon job description.

Rather than providing reading instruction to alternative career students and instructional support to students enrolled in the virtual academy program, as agreed upon, Ms. Wempren testified that the actual work involved teaching algebra, substitute teaching other classes and monitoring large numbers of students waiting for buses, according to records.

The St. James Parish School Board unsuccessfully argued that “it makes no practical sense for Ms. Wempren to work a job that she helped create, not report any issues during performance of the job, complete the term of that position and subsequently claim that the position was not suitable,” court records show.

Keeping in touch

To address such issues, managers — along with third-party administrators, vocational rehabilitation specialists or “whoever is responsible for setting up the return to work (program)” — should check-in with employees performing transitional work at least every 30 days “to see how it's going, monitor (their) progress and make adjustments as necessary,” said Angela Blanch, Tampa, Florida-based vice president of national accounts for CorVel Corp., a third-party administrator and managed care services provider.

Todd DeStefano, director in PricewaterhouseCoopers L.L.P.'s insurance and claims operations practice in New York, compared the situation to conducting performance evaluations once a year.

“(If) you tell them they were terrible, they'll say, "Well where have you been all year? You didn't tell me any of this,'” Mr. DeStefano said. “That's why periodic check-ins with the injured worker along the way, and documenting that, I would think, would have benefited the (school board) in this instance.”

One of the national employers CorVel works with requires managers to check in with injured workers daily, which Ms. Blanch said “is something I would recommend.”

Company policies should also include “some sort of complaint mechanism ... because what we oftentimes see is, an employee will attempt light duty and just walk off the job or not come in the next day,” said Albert B. Randall Jr., Baltimore-based principal at law firm Franklin & Prokopik P.C. “That employee will later argue, "I was asked to perform duties outside of the modified duty description, and therefore I didn't come back.' “

To further prevent an injured worker from performing duties outside a modified job description, Ms. Blanch recommends creating a list of tasks that match the employee's restrictions, such as “light cleaning” or “answering the phone,” rather than relying on a “bank of light-duty job descriptions” for each job.

Physicians who aren't trained in occupational medicine might be hesitant to release an injured worker to light duty or transitional work, Ms. Blanch said. But rather than just ordering an independent medical examination and “automatically going into litigation,” CorVel might send a vocational rehabilitation specialist or nurse case manager to educate physicians about the workers comp process.

Such a program should also take the Americans with Disabilities Act into account, which is why many employers limit modified duty to 90 to 120 days, Mr. Randall said.

The ADA requires employers to provide “reasonable accommodation” to qualified individuals, so “there's a fear they could run afoul of the (act) if they extend a modified duty position for too long,” making it difficult to “argue that the temporary position is not potentially a permanent” reasonable accommodation, Mr. Randall said.

If injured workers don't reach maximum medical improvement or full duty within 90 to 120 days, many employers will take them off modified duty and reinstate temporary total disability benefits, Mr. Randall added.