Light Duty, Good Faith Job Offers + Transitional Work

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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 EmployersTime 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 Mart90 Ohio St.3d. 428 (2000)

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Left-Handed

PositionState, 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 validState, 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 McCartyDirector, Kegler Brown Hill + Ritter

dmccarty@keglerbrown.com

keglerbrown.com/mccarty

614-462-5469