The document discusses light duty and transitional work job offers under Ohio workers' compensation law. It notes that time off work is a major cost, and that a significant percentage of injured workers who are off for a year never return to work. The advantages of returning to work are outlined. The document reviews the legal definition of a "job offer" and what constitutes "suitable employment." It provides guidance on the requirements for written job offers, including specifying duties and obtaining physician approval. Considerations for transitional and off-site modified duty are presented. The document concludes by summarizing some relevant Industrial Commission decisions.

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Light Duty, Good Faith Job
Offers + Transitional Work
Presented by Dave McCarty
Ohio Self-Insurers Association
October 23, 2015

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Problem for Employers
Time off work is a major cost-driver in
the workers’ compensation system

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%
Significant % of people off work
for 1 year never return to work
after a work-related injury

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Advantages of
RTW are legion
Costs to employer
Costs to claimant
Quality of life
Morale
Society

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…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)

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O.A.C.
4121-3-32(A)(6)

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"Job offer" means a proposal, made in
good faith, of suitable employment
within a reasonable proximity of the
injured worker's residence.

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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.

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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.

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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.

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“Suitable Employment”
work within employee’s
physical capabilities
O.A.C. 4121-3-32(A)(3)

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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)

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1 Offer must be
in writing

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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

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Coxson v.
Dairy Mart
90 Ohio St.3d. 428 (2000)

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Left-Handed
Position
State, ex rel. Professional
Staffing v. Indus. Comm. (2003),
152 Ohio App.3d 245

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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

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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

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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

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Transitional Work
Considerations

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Modified Duty Offsite
(MDOS)

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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

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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)

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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)

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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)

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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)

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Thank You!
Dave McCarty
Director, Kegler Brown Hill + Ritter
dmccarty@keglerbrown.com
keglerbrown.com/mccarty
614-462-5469