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  1. #1
    Join Date
    Apr 2009
    Posts
    29

    Default Employer Rejected Return to Work Document

    My saga continues, My doctor returned me to work full duty without restrictions. Based on the immobility the custom back brace presents coupled with nerve damage in my right foot, the employer did not beleive I would be able to perform nor would he accept additional resposibilty for future injuries of the same issue. I was told they are protecting both parties, the company against liabilty,futher injury to myself, which I agree and understand. I was told I must be 100% or nothing, not 98 or 95%,but 100%, as prior to my injury. I am still employed with this company but this company, just returned me workmans comp I think............

    Now I will never be 100% from my compression fractures of L1&L5 with nerve damage to my right foot due to the fractures. Its been a year since I have last worked. its very doubtful for my return, with my current title.
    Options, what are my options, I a 45 soon to be 46 year old man educated but injured with the employer rejecting the doctors full duty status, where does this leave me as far as future employment, and settlement procedings. I have worked 4 years being in very good standings, I work hard, never missed a days work?
    I have not reached MMI, but have had IME, which in principle agrees with my doctor. How should I persue this issue?
    Last edited by JustGroovewithme; 07-18-2009 at 05:28 AM.

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Employer Rejected Return to Work Document

    I was told I must be 100% or nothing, not 98 or 95%,but 100%, as prior to my injury.
    Your ER cannot make that decision. Under the ADA/EEOC, your ER must engage in the interactive process, and make every effort to bring you back to work. It is illegal to discriminate against you for a disability, or a perceived disability. Which it shounds like the ER is doing here.
    ADA info is here http://www.eeoc.gov/types/ada.html
    Info on filing a claim is here http://www.eeoc.gov/charge/overview_charge_filing.html

    Aside from that... as your doctor has released you to RTW, withour restrictions, you are technically 'cured' from your injury, and the ER is not in any position to make a medical decision that you cannot perform your pre injury job duties. You are not 95% or 98% at this time your are 100% 'released to return to work'.
    An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.http://www.eeoc.gov/types/ada.html
    The thing is, according to your doctors, you do not have a 'disability'...your ER is assuming you do. It is not their job to protect you against ''additional'' injury they are supposing you 'might' suffer due to this claim.

    My doctor returned me to work full duty without restrictions.

    Now I will never be 100% from my compression fractures of L1&L5 with nerve damage to my right foot due to the fractures.
    You'd have to admit there is some descreptancy there. And if you are released to RTW, w/o restrictions, and full duty... how can you have any PPD or disability/impairment rating... which would provide for an award in your claim ?

    How should I persue this issue?
    Consult with an attorney/WC. Notify your ER of your intent/wish to engage in the interactive process, in writing. And if necessary, file the ADA complaint/charge.
    If you are not permitted to RTW now, go back to your treating physican and get returned to a TTD status.

    Here is just a little of the EEOC mandate
    RETURN TO WORK DECISIONS



    13. May an employer require that an employee with a
    disability-related occupational injury be able to return to "full
    duty" before allowing him/her to return to work?

    No. The term "full duty" may include marginal as well
    as essential job functions or may mean performing job functions
    without any accommodation. An employer may not require that an
    employee with a disability-related occupational injury who can
    perform essential functions be able to return to "full duty" if,
    because of the disability, s/he is unable to perform marginal
    functions of the position19 or requires a reasonable
    accommodation that would not impose an undue hardship.


    14. May an employer refuse to return to work an employee
    with a disability-related occupational injury simply because it
    assumes, correctly or incorrectly, that s/he poses some increased
    risk of reinjury and increased workers' compensation costs?

    No, unless an employer can show that employment of the
    person in the position poses a "direct threat." Where an
    employer refuses to return an employee to work because it
    assumes, correctly or incorrectly, that his/her disability-
    related occupational injury creates merely some increased risk of
    further occupational injury and increased workers' compensation
    costs, it discriminates on the basis of disability. The employer
    may not refuse to return to work an employee who is able to
    perform the essential functions of the job, with or without a
    reasonable accommodation, unless it can show that returning the
    person to the position poses a "direct threat." (See the
    discussion of direct threat in questions 11 and 12, above.)


    The fact that an employee has had a disability-related
    occupational injury does not, by itself, indicate that s/he is
    unable to perform the essential functions of the job or that
    returning him/her to work poses a direct threat. In some
    circumstances, evidence about an employee's disability-related
    occupational injury may be relevant to whether s/he can perform
    the essential functions of the job, with or without a reasonable
    accommodation, or it may be relevant to the direct threat
    analysis. An employer should consider the pertinent factors
    listed in questions 11 and 12, above, in applying the direct
    threat analysis in this context.
    http://www.eeoc.gov/policy/docs/workcomp.html
    You can bring this information to your ER attention in the face to face meeting you'll have.

  3. #3
    Join Date
    Apr 2009
    Posts
    29

    Default Re: Employer Rejected Return to Work Document

    My understanding is as follows: The doctor granted a full release with conditions that if I tried to work and could not, I report back to him,

    Since I was given a trial return, with no disability or percentage attached to the full return, not MMI, then the employer had the right to refuse work if I was unable to perform. upon my next return which I will be released as MMI with PPD if I am then refused work, then the plot thickens.

    As far wanting me back 100% well, that is so very subjective and interesting.

  4. #4
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Employer Rejected Return to Work Document

    Since I was given a trial return, with no disability or percentage attached to the full return, not MMI, then the employer had the right to refuse work if I was unable to perform.
    That's a very broad stroke of the RTW brush, not reasonable to you or the ER. Whether you have been released/declared as MMI or not... you don't have any restrictions by your PTP, you are able to perform you job as pre injury. As such, the ER isn't in a position to refuse you a RTW. See where the overlaps are here ? Your PTP should be spelling this out completely. Eg... If your injury precludes you from lifting over 20#, and your usual/customary job requires 70#, that is something you should NOT be doing...your ER has a reasonable expectation of your full job duties.

    If it is even presumed you will be rated to some level of disability/impairment, that should be addressed now. A RTW under these circumstances leaves you open to additional injury, and the ER/IC to additional exposure. Not a good idea.

    upon my next return which I will be released as MMI with PPD if I am then refused work, then the plot thickens.

    As far wanting me back 100% well, that is so very subjective and interesting.
    When you are released MMI with or with out a rating yet... if there are restricitons your ER must make a reasonable accommodation if requested, under the ADA rules. Or show a financial hardship for not doing so.

    There is nothing really thickening... if your ER can't bring you back to work under the provision of the state rules, or fed rules...you could be eligible for additional benefits. VR possibly.

  5. #5
    Join Date
    Jul 2009
    Posts
    13

    Default Re: FCE

    I had an FCE, this was painful, brought tears to my eyes, My doctor said that I will not be able to return to work! Now the FCE confirms this, what issues are ahead of me? do I retrain, with a Job of my choice?

  6. #6
    Join Date
    Jul 2008
    Location
    California
    Posts
    1,898

    Default Re: Employer Rejected Return to Work Document


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