The Importance of Modified Duty in Workers’ Compensation Cases

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The benefits of using modified duty where allowed are many – both for the company and the injured worker. It has been proven that injured workers who return to work on modified duty tend to heal 30% faster than those injured workers who do not work until released.


What is Modified Duty?


Modified duty (also sometimes called light duty) is an offer of a work assignment made to an employee who is recovering from an injury, and who has received clearance from a physician to return to work with specific medical limitations. An employee assigned to modified duty may perform a portion of the duties of their regular job or a completely different job. The key is that the light duty job be within the Claimant’s restrictions. Modified duty is intended to allow employees to earn a salary and perform productive work while they continue to recover. Often, however, it is also used as a tool to provoke settlement.


Often, the most expensive part of a workers’ compensation claim is the indemnity benefits (a percentage of the worker’s weekly wages) paid to the injured worker for lost wages. Also, it is what usually motivates a Claimant to stay out of work. Who wouldn’t want to stay home and get paid? Employers who institute effective return-to-work programs have reported considerable savings. In addition to lost wages, according to the National Institute on Disability and Rehabilitation Research, employees are less likely to seek legal counsel if the employer facilitates early return to work through light-duty positions. If an injured worker is released to modified duty by their treating physician and you help facilitate a return to work within their restrictions, the indemnity benefit is eliminated (or at least reduced). Ultimately, this reduces reserves and legal costs. It is also likely that you could curtail attorneys from faking a case because in most states the Claimant’s attorneys only get paid a portion of what the Claimant gets in indemnity benefits. If the Claimant can’t get indemnity benefits, there is no money in it for an attorney. (Keep in mind that this is coming from an attorney whose livelihood depends on claimants getting an attorney.)


In many states, if an employee refuses modified duty while she is collecting workers’ compensation payments for a work-related illness or injury, part or all of her workers’ compensation payments may be withheld.


Operating a Return to Work Program


Return-to-work programs should operate hand-in-hand with your company’s current risk management tools as one component of your overall risk management program. The basic elements of a return-to-work program include the following:


Develop Job Descriptions. Detailed functional job descriptions should include information about specific physical demands. Medical providers make informed decisions about an individual’s specific capacity and limitations relative to the written job description.


Provide Alternate Duty. When an injured or ill employee has limitations, it may be necessary to place the employee in a different job to continue working. Create a job bank that lists different job types (with detailed job descriptions) that you can use when an employee needs alternative duties. When you are determining transitional jobs, consider the types of restrictions that are typically associated with various injuries.


Work Hardening or Conditioning. Ideally, employees that return after an absence return to their previous position—but this is not always the case. Getting employees to return to work is more apt to be successful if they are allowed to return gradually, slowly building up strength and endurance for job demands.


For example, a worker is much more likely to return to work (and a doctor is more likely to approve) a job that starts with a return to work 4 hours a day then increases each week.


Why Modified Duty is Important


If injured employees are not offered alternate duty, they are allowed to stay at home. When at home, the employee can perform a variety of different activities such as: sit for extended periods of time (watching lawyer commercials), answer the phone, work at a desk or counter, pay bills, carry out trash, lift a gallon of milk (8lbs), and execute a range of different everyday tasks.


If all of these activities can be done at home, why not have the injured employee perform similar activities at work? Avoid paying an employee to stay home when tasks at the company can be accomplished with accommodating work restrictions.


The longer an employee is out of work, the harder it becomes to get the employee back to work. Although the employee may not be able to produce at 100%, some productivity is better than none. Keeping the employee active can help promote physical and mental healing as well as create good morale throughout the workplace. It will also act as a deterrent to others so that other workers do not try to also stay at home and get paid.


Return to work often can be influenced by economic incentives to remain disabled. Rarely does someone set out to fake an injury and then return to work. It’s much more likely that they have an actual injury, but once they start getting paid (while not working), they get used to not having to work and want it to continue.


If a Claimant is out for 2 years or more, it is a statistical anomaly they will ever return to work. It is important to have the Claimant return to work to break the cycle. One study found that the likelihood of back pain patients returning to work is inversely related to the duration of pain.


Only 50% of patients returned to work after pain of 6 months duration, 25% returned after 12 months, and almost no patients returned to work after 2 years. (Waddell, G. (1987) A new clinical model for the treatment of low back pain. Spine, 12, 632-644.) Other studies have found that employees who stay out of work with a job-related injury for more than twelve weeks have less than a 50% chance of ever returning to work.


As you can see, a return to work program is important. Not only does it reduce costs, but it can also be used effectively to help settle a case.


It is common that a Claimant who realizes they are about to be returned to work will suddenly decide they want to resolve their case. If they are not really hurt and are attempting to “get” something from the employer, there is no better way to push the case towards settlement than making them come back to work.


In summary, there are numerous benefits to a return-to-work program and institution of a program is something that should be done if at all possible. Written By Attorney George Waters, Eraclides Gelman Attorneys at Law 1888 Old Norcross Rd., Lawrenceville, GA 30044 678-822-9660 |


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