Using Transitional Duty to Return Employees to Work After an Injury

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Auman, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@amfdayton.com.

October 1, 2013

As employers, we all
strive to avoid work-related injuries to our employees. We do this because we
do not want to see any of our employees injured, but also because of the costs
associated with work-related injuries. Work-related injuries that lead to lost
time usually result in an increase in our experience modification rate, which
ultimately affects our workers’ compensation insurance premium. These premium
increases can cost a company tens of thousands of dollars each year for several
years after the industrial injury. In many cases, the cost of the claim and the
reserves set by the insurance carrier stay with the employer several years
after the date of injury; and, in some cases, even longer.

Of
course, the surest way to avoid these costs is to prevent on-the-job injuries
and the lost time from such injuries. As much as we would all like this to
happen, many employers may face issues stemming from on-the-job injuries, even
with preventative measures, safety tools, and proper training. If an injury
occurs, employers are likely to experience a lost time workers’ compensation
claim.

After
an employee suffers an on-the-job injury, an employer’s first concern is to get
that individual the proper treatment so that the employee can begin the healing
process as soon as possible. In most cases, you want to see that the employee
has sufficient time to rest and recover after receiving whatever treatment is
necessary. A wise employer begins planning for the employee’s return to work
almost as soon as he or she is aware of the nature of the employee’s injuries
and the prognosis for recovery.

One
of the best methods for keeping your workers’ compensation costs under control
is to minimize the cost of lost time benefits paid to the injured worker while
recovering. To this end, many employers strive to get the employee back to work
in at least a transitional duty capacity as soon as the employee is ready and
is able to do so from a medical perspective. To return an employee to work in a
light-duty capacity requires the cooperation of several different entities that
touch upon the employee’s workers’ compensation claim. The most critical of
these are the employee and his/her desire to return to work; the company, and
its desire to bring back the injured worker as soon as possible; and the
employee’s physician of record (POR) and his or her willingness to release the
patient to some form of transitional duty.

Several
different scenarios can play out with regard to an employee returning to work
in a transitional duty capacity. The first one that we will examine involves an
employee who wants to return to work, an employer that is able to provide
transitional duty, and a POR who sees the value in getting the employee back to
work as soon as he/she is able. Most employers see the value of returning an
employee to work as soon as possible because doing so will enable the employee
to return to the regular workforce more quickly and will reduce the employer’s
exposure in workers’ compensation. Because most, if not all, transitional duty
scenarios may require the employer or its representative to work with the POR,
a Health Insurance Portability and Accountablity Act (HIPAA) compliant signed
medical release should be obtained from the employee directly or through his or
her  representative. Also, the employer must be mindful of any restrictions in
communicating with the employee directly if the employee is represented by an
attorney. In this scenario, there are still several concerns.


  • The physician must provide realistic restrictions for the employee in
    transitional duty. The employer will recognize that not all available jobs meet
    the restrictions. It is important that the employer only bring the employee
    back to transitional duty if it has a job that meets the physician’s
    restrictions. The employee and the restrictions should be reviewed periodically
    by the physician. As the employee continues to improve, the restrictions should
    be adjusted and, it is hoped, relaxed on a regular basis. As this occurs, the
    employee can be moved into more demanding jobs.


  • The position the employer provides the employee must fall within the
    restrictions placed upon the employee by the POR.


  • The employer needs to, whenever possible, provide a real job for the
    employee. Having the employee sit in a windowless room with a table and a clock
    on the wall, counting paper clips, will not help the employee and will not
    hasten his/her return to regular duty. In fact, this type of “transitional
    duty” may create other significant morale problems with the employee and the
    rest of the employer’s workforce and should be avoided.


  • The employer must ensure that the employee’s immediate supervisor and
    all other supervisory personnel who may interact with that employee understand
    that any work assigned while the employee is working in transitional duty must
    be within the current restrictions provided by the physician of record.


  • The employer must be careful of a transitional duty employee who lobbies
    the doctor to release him/her from restrictions after only a brief period of
    time. It benefits no one for the employee to be returned to his/her former
    position of employment before being physically ready to do so. This situation
    can lead to re-injury, aggravation of the existing injury, or a new injury—all
    of which are harmful to both the employee and the employer.


  • If the employer suspects the situation described above is occurring, the
    employer should consider reminding the treating physician of the employee’s
    earlier restrictions and/or seeking an independent medical evaluation of the
    employee (a second opinion) to determine whether the employee’s physical
    condition justifies a complete release from all restrictions.

Another
potential scenario is one in which an injured worker is reluctant or completely
unwilling to return to transitional duty, and a physician who wants (or is
willing) to work with the employee to keep him/her off work. This type of
situation may proceed along the lines outlined in the first scenario; however,
the employer will need to be much more careful and may need to take additional
steps to establish a job for the employee within the work restrictions
established by the physician. In this scenario, the treating doctor is most likely
accepting the employee’s subjective complaints. Thus, the treating physician
continues to keep the employee on full restriction and is unwilling to consider
transitional duty.  The employer may have to seek a second opinion to establish
restrictions under which the employee can work in transitional duty. If this
occurs, the employer may even have to go before the state Industrial Commission
or Industrial Review Board to obtain an order directing the employee to accept
the transitional duty position.

In
such a situation, an employer wishing to return the claimant to work usually
has 2 options. If the employer has a release signed by the employee, the
employer can contact the employee’s POR and inquire if the employee is able to
perform any restricted duty. If this communication is permissible under state
law, the employer will want to inform the treating physician that there is
transitional duty available and that the employer is interested in knowing what
restrictions the physician recommends for the injured worker. It is usually a
good idea for the employer to refrain from providing job descriptions to the
POR until the initial set of restrictions has been received.

If
the POR provides a list of restrictions for the employee, the employer should
review those restrictions, select an appropriate job, and ask the physician if
that job is acceptable.

 If
the treating physician is unwilling to provide restrictions for the employee,
the employer may need to schedule an independent medical evaluation of the employee
(a second opinion) to see how a third-party doctor feels about the employee’s
condition and whether that doctor is willing to place established restrictions
on the employee’s ability to return to work. Depending on the state in which
the employer is located, the workers’ compensation program may or may not cover
the employee’s injury. Even if a third-party physician provides workable
restrictions for the employee, the employer may have to go before the
Industrial Commission, or another organization that administers the state’s
workers’ compensation program, to get its approval for transitional duty. This
route should be taken cautiously, as there can be some risks with a scenario in
which the employer appears to be forcing an employee back into the workforce in
transitional duty. These risks include:


  • The employee complains that the supervisors are working him/her outside
    the restrictions provided by either the treating POR or by the third-party
    physician.


  • The employee sees this as an opportunity to feign a new injury or claim
    aggravation of the existing work-related injury to get back on temporary total
    disability and back into more regular medical care.


  • The employee files a complaint
    with the Occupational Safety and Health Administration relating to the original
    injury or for a different reason.


  • The employee’s attitude and work ethic creates a morale issue for other
    employees who are continuing to work because of the injured worker’s refusal to
    fulfill the requirements of the transitional duty job. Frequently, this places
    an additional workload on other, non-injured employees and can lead to
    frustration, conflict, and an excessively volatile work environment that may
    disrupt operations.

In
this situation, the employer needs to ensure that all supervisory employees
understand the absolute necessity of not permitting the employee to do anything
that exceeds the restrictions placed upon him/her by the POR or by a
third-party examining physician.

There
are some basic considerations for any employer returning or trying to return an
employee to a transitional duty position. First, the transitional position
should be real work, not a “make work” type of job. Employers should remember
that transitional duty is not an opportunity to punish the employee for getting
hurt on the job. A meaningless job may affect the injured employee’s morale,
and that could spill over to other employees. In addition, depending on where
the employer is located, the state may not consider it to be assigning real
transitional duty; if petitioned by the employee, the state may return the
employee back to total disability. Transitional duty always should be viewed as
a means to get the employee back into the workforce in an expeditious manner,
and as a way to aid recovery by allowing the employee to slowly get
re-accustomed to handling the physical requirements of his/her regular job.

Second, employers must consistently stick with the
restrictions placed upon the employee by the examining physician, whether that
is the
POR or
a third-party physician used by employer to determine work restrictions for the
employee. By failing to adhere to those restrictions, permitting supervisors to
work the employee outside the restrictions, employers may find themselves with
a brand new injury, a reoccurrence of the earlier injury, or an aggravation of
the former injury—any one of which can result in a renewed period of temporary
total disability and possibly even additional significant medical care and
treatment.

Third,
when an employer is, in effect, forcing an injured employee to return to
transitional duty, the employer may be placing that employee in a situation
that can be used by the employee to reinjure himself/herself in an effort to
get back on total disability or even to file a new claim—which obviously
defeats the purpose of transitional duty.

Finally, when contemplating using transitional duty,
employers should be sure they understand their obligations under the Americans
with Disabilities Act, the Family and Medical Leave Act, and their state’s
workers’ compensation laws.

Transitional duty offers an opportunity to reduce the
impact of work-related injuries on your workers’ compensation premium and
potentially allows an employee to return to work more quickly. However, it must
be handled with special care and diligence to ensure your employees’ and your
company’s interests are protected. Handled properly, it is a valuable tool that
enables employers to reduce the cost of workers’ compensation claims and
benefit their employees.

SIDEBAR

An experience modification rate (EMR)
is a number used by insurance companies to assess the past cost of a business’s
employee injuries and its rate of risk for future injuries. A lower EMR will
lead to lower workers’ compensation insurance premiums, while a higher EMR will
lead to more expensive premiums. EMRs are calculated through a formula
established by the National Council on Compensation Insurance and take into
account the type of business it is evaluating, as well as each business’s
history with employee injuries. Frequently, one of the most significant
components to this calculation is the amount of lost time benefits paid to
injured workers.