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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
keglerbrown.com/mccarty
614-462-5469
