My employer contacted me today stating that I have to return to work on Monday or I will be fired, because my first doctor released me for light duty. However, my second, current doctor who scheduled my surgery has not yet released me. Help?
I was hurt on the job back in March 2010 and have been on workmans' compensation since then. The first doctor I saw told me to do therapy for a few months and see how I progressed. The therapy was working slowly, so he sent me on light duty in August. I returned to work in August, and then was scheduled for an MRI where I was diagnosed with needing surgery. I was then referred to another doctor who scheduled my surgery right away in October. I have been under this new doctor's care ever since, and they have not released me yet.
Based upon these facts, a Pennsylvania employer would have little or no leverage to force the injured worker back to work based upon the note of a physician who examined the Claimant before he/she had surgery.
Also, since claimant's surgeon has not yet cleared the claimant to return back to any work, the Claimant would not be obligated to attempt to return to work. With the injury being in May of 2010 it it now being 2011, the employer's only way to legally get claimant back to work would be to order an IME (independent medical examination) of Claimant.
If the IME physician stated that Claimant could return back to light duty work, then I would likely advise my client to try it. This will make the claimant's case much more compelling to the Court if the claimant tries to do the light duty in good faith. It may turn out that the Claimant cannot tolerate even the light duty work, but at least he tried to do it. If he can do it, then he is obligated to do it even if the Claimant does not like the type of work that is offered.
As a practical matter, if the job is a made up light duty job, the employer will not usually allow the claimant to do that job indefinitely. It is just a way for the employer to stop paying workers compensation benefits. Often times, that will lead to the employer finding some technical rule violation that Claimant has committed so that it can fire the Claimant.
The Claimant who receives this sort of ultimatum should immediately call an experienced workers' compensation attorney for help.
In Pennsylvania, once you have been disabled for more than 90 days after your work injury and the work injury has been accepted by the employer and its insurance carrier, the employer and its insurer are obligated to continue to pay a Claimant's ongoing weekly or bi-weekly workers compenation wage loss checks. That is true even if the claimant is fired by the employer.
By then, a Notice of Temporary Compensation Payable (NTCP) or a Notice of Compensation Payable (NCP) should have been filed with the Bureau of Workers' Compensation by the insurer or third party administrator (TPA). The claimant should also have been given a copy of the NTCP or NCP by the insurer or TPA. If the employer and/or its insurer unilaterally stop paying you more than 90 days after you became disabled or suffered wage loss (even partial lost wages) and there is an open NCP, the employer and insurer are at risk for a penalty petition to be filed by the Claimant or Claimant's counsel. Penalties of up to 50% of the compensation that was due and unpaid or paid late can be awarded to the Claimant by the workers compensation judge.
The employer may try to strong arm or force you back to work by threatening to fire you if you do not come to work, but it would be inadvisable for them to do so based upon these facts. In fact, if you are fired solely because you filed a workers' compensation claim, you may also have a case against your employer in state civil court (the Court of Common Pleas) for wrongful termination.
In addition, the employer's insurance carrier should certainly know that a workers compensation judge will most likely end up hearing this case at some point. The more that an employer mistreats the injured worker, the worse it will look in the eyes of the Court.
I cannot tell if the first doctor continues to treat you. I also do not know if the first doctor practices in the same medical discipline as the second doctor. Bear in mind, my response is confined to Virginia law, as that is where I practice. The laws may be different in your state, and the answers may be different in your state. You should therefore IMMEDIATELY, THIS WEEK, BEFORE YOU DO ANYTHING ELSE, retain an attorney who practices regularly in the field of workers' compensation in the jurisdiction where your claim is pending to get answers about your particular circumstances as the law of your jurisdiction applies.
That said, if your first doctor is no longer treating you and has not seen you since August, I would argue his release is stale and no longer applies. Circumstances have changed since he released you in August - you had an MRI which showed some type of problem according to your summary. You were then seen by another doctor who apparently disabled you after reviewing the MRI. I do not know what other treatment the second doctor has provided - if he has only seen you once, it could be argued his opinion is just as stale as the other doctor's, and I would tell you to go back to your treating doctor before Monday to discuss your treatment needs, your work status, and follow up regularly. Don't leave without documentation of your work status that relates disability, if any, to the incident that occurred on your accident date.
If the two doctors are different disciplines, in Virginia it could be argued that you are not fit to return to work by all disciplines. For example, if a neurologist released you to regular duty in August, and an orthopaedist has totally disabled you based upon a strong medical record, I would be arguing you have to be released by both disciplines before you are fit to return to work. Another example would be if the first doctor is a family physician, and the second doctor is a spine surgeon who performed spine surgery after the family doctor released you to restricted work, the spine surgeon's word should carry greater weight in the scenerio I describe.
This is an art. It is complex and sensitive. Reasonable minds can differ with respect to the weight and meaning of medical evidence You have a condition that is serious enough to require surgery. The insurer has an attorney waiting in the wings. Why would you take a chance and not retain an attorney???!!! Retain an experienced workers' compensation attorney, and follow their advice, immediately!
Also, you are cautioned that there are important time limitations for filing a claim. This is called the Statute of Limitations. In Virginia, the Statute of Limitations is two years. The Statute of Limitations may be longer or shorter in your state. If you do not properly file your claim within the limitation period, YOU WILL LOSE ALL YOUR RIGHTS TO WAGE LOSS, MEDICAL BENEFITS and anything else provided by the Workers' Compensation Act, even if the insurer has paid for wage loss, medical treatment and vocational rehabilitation. One should not wait to file claim; a claim should be filed immediately. Many people think they have "filed" their claim because they are being paid, but the claim may not be filed, and your claim may not be protected. Again, it is very important that you retain an attorney before damage is done to your claim.
The light-duty release was written BEFORE BACK SURGERY! It has nothing to do with anything. It sounds like your employer does not have your current restrictions. Regardless of jurisdiction, you are responsible to make sure your employer has a CURRENT work status for you. Your attorney would take care of this. You have a serious injury which has kept you off work for a year. You should have hired an attorney from the beginning or at least when you were advised to undergo surgery. Please consult an experienced WC attorney in Houston today so that someone can advise you and look out for your interests while you recover.
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Mr. Candiano is licensed to practice law in Illinois and Indiana. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. You may contact the writer with these links:
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