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Light Duty, Good Faith Job Offers + Transitional Work


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Dave McCarty presented "Light Duty, Good Faith Job Offers + Transitional Work" on October 23, 2015, at the Ohio Self-Insurers Association's "Nuts & Bolts: Workers' Compensation Educational Seminar."

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Light Duty, Good Faith Job Offers + Transitional Work

  1. 1. z Light Duty, Good Faith Job Offers + Transitional Work Presented by Dave McCarty Ohio Self-Insurers Association October 23, 2015
  2. 2. z Problem for Employers Time off work is a major cost-driver in the workers’ compensation system
  3. 3. z
  4. 4. z % Significant % of people off work for 1 year never return to work after a work-related injury
  5. 5. z Advantages of RTW are legion Costs to employer Costs to claimant Quality of life Morale Society
  6. 6. z …payment of TT shall not be made for the period…when work within the physical capabilities of the employee is made available by the employer or another employer… 4123.56(A)
  7. 7. z
  8. 8. z O.A.C. 4121-3-32(A)(6)
  9. 9. z "Job offer" means a proposal, made in good faith, of suitable employment within a reasonable proximity of the injured worker's residence.
  10. 10. z If the injured worker refuses an oral job offer and the employer intends to initiate proceedings to terminate temporary total disability compensation, the employer must give the injured worker a written job offer at least forty-eight hours prior to initiating proceedings.
  11. 11. z The written job offer shall identify the position offered and shall include a description of the duties required of the position and clearly specify the physical demands of the job.
  12. 12. z If the employer files a motion with the Industrial Commission to terminate payment of compensation, a copy of the written offer must accompany the employer's initial filing.
  13. 13. z “Suitable Employment” work within employee’s physical capabilities O.A.C. 4121-3-32(A)(3)
  14. 14. z Treating physician is employee’s attending physician of record on date when employee receives written job offer O.A.C. 4121-3-32(A)(4)
  15. 15. z 1 Offer must be in writing
  16. 16. z 2 Offer must specify job duties Specific enough so that, when matter goes to hearing, hearing officer can determine whether proposed employment is “suitable” Catchall provisions are unacceptable – e.g. “other duties as assigned” Promise not to assign any duties outside of restrictions (without more) not acceptable
  17. 17. z Coxson v. Dairy Mart 90 Ohio St.3d. 428 (2000)
  18. 18. z Left-Handed Position State, ex rel. Professional Staffing v. Indus. Comm. (2003), 152 Ohio App.3d 245
  19. 19. z Work consisting of jobs employer knows claimant could not cover does not constitute a “good faith job offer” State, ex rel. Ellis Super Valu v. Indus. Comm., 2007 Ohio 4920
  20. 20. z Subsequent modification of the job duties does not make the formerly invalid written job offer valid State, ex rel. Ganu v. Indus. Comm., 2006 Ohio 907
  21. 21. z It is the claimant’s and not the attending physician’s rejection of a job offer that justifies termination of TT under the statute. Self-Insured employer could not terminate TT when the physician of record failed adequately to respond to the employer’s request that the physician certify the claimant was fit for light duty work. State, ex rel. Dayton Foods v. Unger, 2004 Ohio 6556
  22. 22. z Transitional Work Considerations
  23. 23. z Modified Duty Offsite (MDOS)
  24. 24. z What about offer without attending physician’s approval, based on employer’s own IME? Lack of cooperation Patently unreasonable restrictions Doctor chooses job title rather than specify medical restrictions Restrictions based upon lifestyle rather than physical ability
  25. 25. z Industrial Commission Decisions Claimant has burden of proof, in the first instance, to clearly establish need for restrictions (05-300801) 4123-3-32(A)(6) follow-up letter must state offer still available, specify in detail proposed job’s duties and provide time period for response (08-868097) As long as hours/schedule offer is reasonable and made in good faith, claimant does not get to pick and choose (e.g., no weekend shifts) (08-339571)
  26. 26. z Industrial Commission Decisions Invalid Offer – “your work would not involve using your injured hand at all. We will allow you to clean, count parts, and do anything else that can be completed within your restrictions.” Also, can’t push a broom with one hand (10-302228) Claimant accepted light duty offer of suitable work, performed for 3 days then stopped because he did “not like doing computer work.” Deemed quit for personal reasons unrelated to his claim (12-334970)
  27. 27. z Industrial Commission Decisions 13-hour day offer with split shifts and 2 to 3 hour unpaid breaks deemed not a good faith job offer for claimant who did not live close to her place of employment (11- 839520) Offer of employment in “nursing supervisor station” for PTSD nurse with “No client contact” restriction not in good faith – required to walk through hallway where patients present (06-831350)
  28. 28. z Industrial Commission Decisions TT terminated after claimant acknowledged receipt of written good faith offer of suitable employment but just had to go to Texas (02-325738) Job offer must be in writing even if the claimant wasn’t receiving TT at the time the offer was made (06-806942)
  29. 29. z Thank You! Dave McCarty Director, Kegler Brown Hill + Ritter 614-462-5469