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WORKERS’ COMPENSATION, RETURN TO WORK, AND USE OF LIGHT DUTY WORK OFFERS: AN OVERVIEW OF PROGRAMS THROUGHOUT THE UNITED STATES. By: Presmanes, Gregory T. Tort Trial & Insurance Practice Law Journal. Spring/Summer2015, Vol. 50 Issue 3/4, p781-808. 28p. Abstract: The article explores the statutory provisions in the U.S. governing workers’ compensation to compensate injured workers during their recovery and return to suitable employment. Topic discussed include failure of employers in establishing return-to-work programs, role of light duty job offer, and the U.S Supreme Court of Georgia opinion regarding suitable employment. (AN: 108398096) Academic Search Complete


I. INTRODUCTION Although the U.S. economy has shown significant recovery, the business world is still suffering from lost work days due to employee sickness or injury.[ 1] The National Safety Council “estimates there are more than 80 million lost work days due to occupational injuries or illness.”[ 2] Furthermore, the Bureau of Labor and Statistics reports that in 2012, more than 1.1 million employees lost an average of nine days due to injury or illness.[ 3] Although this figure represents a decrease from 2008 in cases of missed work, the average number of days missed has climbed. The annual costs associated with employee injury or illness, including medical care and the decrease in productivity, come to $183.7 billion.[ 4] The question becomes: what can employers do to reduce the amount of time employees remain out of work?

The American Academy of Orthopaedic Surgeons has long evaluated this problem and strongly suggests that the best outcome, both for employers and for injured workers, is to return employees to the work force as soon as possible.[ 5] Those who remain out of work for extended periods of time often never return to work.[ 6] They suffer from increased pain and depression and, as a result, take longer to heal and require more medical intervention than other patients.[ 7] Dr. J. Mark Melhorn of the University of Kansas School of Medicine posits that “[o]ne of the roadblocks to getting people back as productive members of the work force is the very thing set up to protect them, the workers’ compensation systems run by the various states and the federal government.”[ 8] Margaret Spence, a board certified workers’ compensation consultant, is similarly concerned that the workers’ compensation system as a whole is partially to blame.[ 9] She notes that it is “riddled with loopholes, litigation, layers of rules and regulations and it does not provide employers with adequate guidelines or resources to understand the importance of implementing return-to-work policies.”[ 10] In fact, she opines that many employers receive no information on designing effective return-to-work programs until an adjuster is managing their claim file.[ 11]

The express purpose often enumerated in state statutory provisions governing workers’ compensation is to compensate injured workers during their recovery and return them to suitable employment at the earliest possible time. Indeed, “[t]he overall goal of workers’ compensation is to enable injured workers to recover and return to work.”[ 12] Rather than merely pay lost wages and medical expenses, workers’ compensation should direct or place a claimant into “real work to restore wage loss and a productive life.” [ 13] Returning claimants to work has been an express, major policy objective of workers’ compensation since the National Commission on State Workmen’s Compensation Laws issued a seminal report in 1972.[ 14]

It is surprising, then, that employers often fail to take a proactive role in returning their employees to work. Many times employers feel they can offer no meaningful jobs within the employee’s work restrictions.[ 15] In the alternative, they worry that injured workers who do not want to be at work will display attitude problems, which will in turn lead to decreased productivity and morale among other employees.[ 16] By the same token, employees may be reluctant to return to their former jobs following an injury because they feel a lack of support from their employer or even feel ostracized by supervisors or coworkers, thereby creating a hostile work environment.[ 17]

In an effort to combat these issues, some states have enacted legislation to provide a smooth transition between the work-related injury and returning to the work place. The purpose of this article is to explore state statutes governing return-to-work programs and highlight those states that have implemented effective procedures. Part II outlines specific features found in state statutes that provide both legal and financial incentives to return to work. Although the list is not exhaustive, these include the light duty job offer and employee benefit termination, premium discounts or dividends, medical and vocational rehabilitation services, special funds, requirements that employers reinstate injured workers, required job searches, and preferred worker programs. The law must often intervene to govern the return-to-work process, but perhaps states should reevaluate existing laws and modify them to more effectively address return to work. Part III provides suggestions for state legislators with regard to identifying important considerations in returning injured employees to work and implementing successful return-to-work programs. Part IV examines some of the federal compliance challenges employers can face when implementing return-to-work policies.

II. STATE STATUTES As stated above, states have attempted to address the needs of employers and injured employees with regard to fashioning return-to-work programs with varying results. In many instances, employees voluntarily return to work when they recover from their job injuries. These results are often attributable to the policies of specific employers and not related to statutory incentives. However, when litigation ensues, the law must step in and facilitate the return-to-work process.

A. Financial Incentives One of the biggest concerns for employers and employees alike following a work injury is financial loss. Therefore, a majority of states provide for some financial incentive to return injured workers to the workplace. As discussed more fully below, many states offer “negative” financial incentives to employees

to return to work by cutting off temporary disability benefits if the employee refuses a suitable job offer. On the other hand, some states provide a money back reward to employers that return former employees to work at their pre-injury wages. Both of these practices demonstrate attempts by legislators to entice employers and employees to actively participate in the return-to-work process by appealing to their pocketbooks.

1. Light Duty Job Offer: Employee Benefit Termination A light duty job offer in the context of workers’ compensation claims can be an effective tool to return injured employees to work in that it can both reduce the exposure and length of the claim. A majority of states allow employers to suspend or terminate disability benefits when an employee refuses an offer of suitable employment.[ 18] As such, this is likely the most widespread and direct incentive to return injured employees to work. Georgia is paradigmatic of this type of incentive. The pertinent portion of the law reads:

If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation ​ at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.[ 19]

States differ in defining what constitutes “suitable” employment and what acts comprise refusal of said employment such that employers can lawfully suspend or terminate disability benefits. Furthermore, although many states allow employers to terminate or suspend benefits during the period of refusal of suitable employment, if a judge or workers’ compensation board finds the refusal justified, the employer may not terminate benefits. Lastly, in most states the period of forfeiture of benefits lasts only during the duration of refusal. Thus, if a claimant initially refuses the job offer, but later changes his or her mind and accepts the proffered job, the suspension of benefits ceases.[ 20]

a. “Suitable” Employment — By way of example, a Georgia employer may offer an injured worker an available light duty job pursuant to a Form WC-240(a),[ 21] in which the employer provides the job analysis or the “essential job duties to be performed, including hours to be worked, the rate of payment, and a description of the essential tasks to be per- formed.”[ 22] The employer submits the job offer to the authorized treating physician for approval with a simultaneous copy to the injured worker’s attorney. Once the job is approved by the authorized treating physician, it must be offered to the employee.

The Supreme Court of Georgia has defined “suitable” employment as that which is commensurate with the employee’s “capacity or ability to perform the work within his physical limitations or restrictions.”[ 23] In a well-known decision, the Georgia Court of Appeals held that an illegal worker was not entitled to benefits because his employer had offered him “suitable” employment as a delivery truck driver.[ 24] The employee could perform the job physically, but because he was an illegal alien he was unable to obtain a valid driver’s license.[ 25] The fact that the employee could not accept the job because he could not produce a valid driver’s license was of no consequence, as the term “suitable to his capacity refers only to the employee’s capacity or ability to perform the work within his physical limitations or restrictions” and not whether he has, or does not have, legal residency or a driver’s license.[ 26]

b. Justifiable Refusal of Light Duty Job Offer — Most courts require some conscious act on the part of the employee in refusing suitable employment before allowing the employer/insurer to suspend disability benefits. In Georgia, if employees fail to report to work at the appointed date and time or arrive at work but decline to begin work and claim they are physically incapacitated, they have effectively “refused” the proffered job such that an employer would be entitled to unilaterally suspend disability benefits.[ 27]

Once it has been determined that the light duty job is “suitable” to the employee’s capacity, a determination must be made as to whether the employee’s refusal of said offer is justified. Although the judge or board usually has wide discretion in this area, the Supreme Court of Georgia has found that in order for an employee’s refusal of a job offer to be justified, that refusal “must relate to the physical capacity of the employee to perform the job; the employee’s ability or skill to perform the job; or factors such as geographic relocation or travel conditions which would disrupt the employee’s life.”[ 28] The employee is not justified, however, in refusing work due to personal reasons unrelated to work.[ 29]

For example, Georgia courts have held that injured employees are justified in refusing suitable employment when they lack the skills to perform the job. In City of Adel v. Wise,[ 30] the Georgia Supreme Court noted that it was not unreasonable for a nurse to refuse a typing job that she was physically capable of performing, but for which she was vocationally unqualified.[ 31] Likewise, an employee is justified in refusing employment that would disrupt his life. In Clark v. Georgia Kraft Co.,[ 32] the court held that an employee was justified in refusing suitable work that required him to work in an area of the plant that was not air-conditioned because the lack of air could adversely affect the employee’s prosthetic arm and ability to work.[ 33] Additionally, it is reasonable for an employee to refuse work that requires him to relocate his home because such requirement is disruptive.[ 34] On the other hand, Georgia courts have not permitted employees to refuse work due to inconvenient hours.[ 35]

c. State Trial Return-to-Work Programs — Although employers in some states can unilaterally suspend benefits when employees unjustifiably refuse offers of suitable employment, states like Georgia and North Carolina have enacted trial return-to-work programs that appear to counteract or negate the employer’s ability to suspend employee benefits. In North Carolina, an employee may attempt a trial return to work for a period not to exceed nine months.[ 36] During this period the employee may collect compensation that may be owed for partial disability.[ 37] If the trial return-to- work is unsuccessful, the employee may continue to collect total disability compensation.[ 38] Similarly, in Georgia, if an employee attempts the proffered job but is unable to perform for more than fifteen working days, the employer must immediately reinstate weekly disability benefits.[ 39]

2. Temporary Alternative Work Opportunities Similarly, some states, like New Hampshire and Rhode Island, require that employers develop temporary alternative work opportunities for injured employees.[ 40] The New Hampshire Department of Labor outlines the procedure by which employers make such work available to an injured employee.[ 41] Employers can execute a task analysis form whereby they provide the daily tasks performed by the employee prior to his injury.[42 ]This form is then presented to the employee’s physician and can assist him or her in determining what physical restrictions the employee may have as a result of the injury.[ 43]

By the same token, the task analysis form can help the employer develop an appropriate alternative duty plan to bring the injured employee back to work quickly.[ 44]

Some employers have specific alternative duty positions set aside in advance for this purpose, and the task analysis form can be forwarded quickly to the treating doctor for approval.[ 45] However, if the injured employee refuses such temporary alternative work, the employer may petition the Department of Labor to reduce or terminate the employee’s compensation.[ 46]

3. Premium Discounts or Dividends By contrast, no states mandate that insurance companies offer premium discounts or dividends when employers reinstate employees following work injuries, but Colorado provides for premium rebates when an injured worker is returned to work under certain circumstances. The statute provides that the commissioner of insurance may include a “premium dividend of up to ten percent if an employer reemploys injured employees at their pre-injury wages including any wage increases to which such employees would have been entitled had the employee not been injured.”[ 47]

Premium dividends are a tangible reward for those employers that have reduced their workers’ compensation losses below original expectations for a given policy period. It logically follows that when employers reinstate injured employees, they are significantly decreasing their costs because the worker has returned to suitable employment and is contributing to productivity rather than adversely affecting the bottom line. As such, this money-back approach provides the employer with a positive financial incentive to return injured workers to employment at their pre-injury wages.

B. Rehabilitation The purpose of rehabilitation assistance in workers’ compensation stat- utes[ 48] is to “restore an injured worker’s earnings capacity as nearly as possible to that level that the worker was earning at the time of injury and to return the injured worker to suitable gainful employment in the active labor force as quickly as possible in a cost-effective manner.”[ 49] Rehabilitation can be one of the most effective devices to return injured employees to work. A Michigan study conducted by the vocational rehabilitation division found that about 60 percent of the workers referred to vocational rehabilitation in the first ninety days of disability returned to work, whereas only about 29 percent of the workers referred after two years returned to work.[ 50] These numbers suggest that rehabilitation services are crucial to dispelling the tendency of injured employees to view workers’ compensation as an “extended vacation plan.”[ 51]

A majority of the states have some statutory provision for rehabilitation services for injured employees in order to encourage early return to work.[ 52] Most of these programs mandate that employers or their insurance carriers fund rehabilitation services to assist employees with living expenses and vocational training.[ 53] Employers are enticed to participate in rehabilitation because they hope the employee is successful in the program and can return to the work force, thereby significantly decreasing or even terminating the disability payments for which the employer may be liable.[ 54] Conversely, employees have an incentive to participate because some states, like New Hampshire, suspend or terminate disability payments if they are uncooperative or refuse to accept vocational rehabilitation.[ 55]

Generally, there are two types of rehabilitation services that arise in the workers’ compensation context. First, all states require that employers provide medical rehabilitation services related to the employee’s job in- jury.[ 56] The goal of medical rehabilitation is to repair the injured employee physically in order to return him to the work force as quickly as possible.[ 57] Medical rehabilitation generally consists of “exercise and muscle conditioning, under the supervision of a physician, to restore a person to maximum usefulness” or any other treatment or therapy recommended by the injured employee’s physician.[ 58] Many times an injured employee can return to work following medical rehabilitation alone.

On the other hand, vocational rehabilitation focuses on the ability of the injured worker to return to work and is typically offered to those employees who have incurred significant limitations as a result of the job injury, have few transferable skills, and cannot return to work with their former employer.[ 59] These services can often include many of the following: counseling and guidance with job placement, job seeking skills, job accommodations, skills training, college training, physical and emotional restorative services, driver training, and vehicle and home modification.[60 ]Typically, the goal is to return injured employees to work with their former employers; in the alternative, to return them to similar work with another employer or different work with another employer; or finally, to provide training to employees so that they might obtain employment in another occupational field.[ 61]

A number of states, including Hawaii and Kansas, have enacted comprehensive vocational rehabilitation schemes that are not mandatory for the injured employee.[ 62] Hawaii provides that an injured employee may enroll in a rehabilitation plan, in which case the employee and certified provider of rehabilitation services submit an initial report to the employer detailing, among other things, an assessment of the employee’s current medical status, disability, physical or psychological limitations, and a job analysis.[ 63] More importantly, injured employees may continue to collect temporary total disability benefits while enrolled in a rehabilitation plan or program if they are not earning wages during the period of enroll- ment. [ 64] If they do earn wages for work performed under the program, they are entitled to the difference between the average weekly wage at the time of injury and the wages received under the program.[ 65]

By contrast, other jurisdictions, recognizing that the primary purpose behind workers’ compensation is to restore the injured employee to gainful employment, require that the employer provide rehabilitation services to an injured employee.[ 66] Kentucky law provides:

[w]hen as a result of the injury [an injured employee] is unable to perform work for which he has previous training or experience, he or she shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him to suitable employment.[ 67]

Louisiana, Maine, Michigan, Minnesota, New Hampshire, Oklahoma, and Oregon, among others, also entitle injured workers to vocational rehabilitation services and have statutes similar to Kentucky.

Finally, in a few states, such as Iowa, injured employees are entitled to a $100 weekly payment from the employer, in addition to other benefits, during each week they are actively participating in a vocational rehabilitation program.[ 68] However, these payments are generally made for a period not to exceed

thirteen weeks, unless the circumstances suggest that a continuation of services will accomplish rehabilitation of the injured employee.[ 69]

C. Special Funds: Second Injury Fund States have recognized that employers may be reluctant to hire employees with preexisting permanent disabilities; therefore nearly all jurisdictions[70 ]have developed or have had second injury funds that are generally formed to “encourage employers to hire disabled workers by limiting, in the case of further injury, their liability for compensation payments to amounts only applicable to the latest injury.”[ 71] Second injury funds reimburse employers that hire a disabled worker for workers’ compensation benefits if that worker suffers a second or subsequent injury.[ 72] In other words, if an employee is hired with a permanent preexisting condition and later suffers a subsequent injury that exacerbates his previous disability, the employer is typically only responsible for the portion of the disability caused by the subsequent injury.[ 73] In this way, second injury funds operate as “apportionment devices” such that the cost of a workers’ compensation claim is distributed “from an individual employer to the entire workers’ compensation system, as funded by all employers.”[ 74]

Second injury funds originally functioned as indirect return-to-work programs, in that they “promote[d] [the] social policy of encouraging employers to hire or retain such employees” with permanent preexisting disabilities.[ 75] However, in recent years, many states have come to view such funds as “expensive and counterproductive.”[ 76] With the passage of the Americans With Disabilities Act in 1992 and specific state laws prohibiting discrimination of the disabled in hiring decisions, legislators began to reexamine the purpose of their Second Injury Funds.[ 77] “By 2005, many states, including Alabama, Colorado, Connecticut, Florida, Kansas, Kentucky, Minnesota, Maine, Nebraska, New Mexico, Oklahoma, Utah, and South Dakota, as well as the District of Columbia, had limited or eliminated their second injury funds.”[ 78] Georgia followed in 2006.[ 79]

D. Injured. Worker Reinstatement Some states require that employers reinstate injured employees if there is work available to which the employee could be assigned. The policy still places an emphasis on returning the injured worker to work, but these provisions place the burden on the employer to make room for injured employees or face monetary penalties. In Arkansas:

[a]ny employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one ( 1) year.[ 80]

Like Arkansas, these states usually impose time limits on the period to which this obligation applies. In Maine, the employer’s obligation to reinstate the employee generally expires after one year from the date of injury, but can continue for three years if the employer has more than 200 employees.[ 81]

Moreover, most states take into account various factors in determining whether an employer must

reinstate an injured worker. In Maine, in order to facilitate the placement of an injured employee, an employer must make “reasonable accommodations for the physical condition of the employee unless the employer can demonstrate that no reasonable accommodation exists or that the accommodation would impose an undue hardship on the employer.”[ 82] Maine courts consider the size of the employer’s business, the number of employees employed, the nature of the employer’s operations, and any other relevant factors when determining whether an employer is subject to undue hardship.[ 83] Presumably larger organizations would be held to more stringent requirements for accommodating injured employees because these employers are more likely to have open positions that can be modified for employees with physical restrictions. Finally, those states that statutorily require employers to reinstate injured employees also often allow employers to suspend or terminate disability benefits if the employee unreasonably refuses the job offer.[ 84]

E. Required Job Search A few jurisdictions have conditioned the receipt of workers’ compensation benefits on whether the injured employee is conducting a job search or seeking suitable employment.[ 85] North Dakota provides that the “injured employee shall seek, obtain, and retain reasonable and substantial employment to reduce the period of temporary disability to a minimum. Employees have the burden of establishing that they have met this responsibility.”[ 86] If they fail, without good cause, to undertake a good faith work search utilizing their transferable skills, their disability and vocational rehabilitation benefits will be suspended.[ 87]

F. Preferred Worker Programs: Oregon’s Return-to-Work Program The State of Oregon is committed to bringing injured workers back to their jobs quickly and close to their pre-injury wages. Oregon accomplishes these goals in two distinct ways. First, like other states, the statute governing workers’ compensation prohibits employers from discriminating against injured workers and entitles injured workers to reemploy- ment.[ 88] Second, Oregon offers three return-to-work programs that are designed specifically to promote early return-to-work with long-term safety nets for injured workers.[ 89] Each program considers three fundamental pieces that work in harmony to create a successful return-to- work program: wage incentives, protection for the employer against reinjury, and reimbursement to the employer for costs associated with job modification for an injured employee.[ 90]

1. Workers’ Benefit Fund The Workers’ Benefit Fund was created to fund Oregon’s Reemployment Assistance Program, which includes the Employer-At-Injury Program and Preferred Worker Program, discussed more fully below.[ 91] The fund is financed by an assessment of 1.5 cents for each hour worked applied to employers and workers.[ 92] In 2006, the Workers’ Benefit Fund expended $90.3 million.[ 93] This fund is crucial because it allows for the support of Oregon’s unique programs.[ 94]

2. Employer-at-Injury Program[95] This program provides financial incentives for employers to return injured workers to early modified work.[ 96] Injured employees are eligible for the program if they have one or more restrictions that prevent employment at regular duty.[ 97] Employers receive a $60 flat fee for employer-at-injury (EAIP)

placement. Furthermore, insurers reimburse employers in the form of wage subsidies up to 50 percent for up to three months and up to certain amounts for other expenses.[ 98] This program has received widespread praise from both employers and injured workers.[ 99]

3. Vocational Assistance Program Injured workers are eligible for vocational assistance if they have a permanent disability that prevents them from obtaining employment in any job that pays 80 percent or more of the pre-injury wage.[ 100] Benefits under this program are similar to those of other states and can include maintenance indemnity payments during retraining, expenses for education, and rehabilitation services.[ 101] Generally retraining is allowed for sixteen months (twenty-one months if necessary) in addition to four months of direct employment services.[ 102]

4. Preferred Worker Program The primary purpose behind Oregon’s Preferred Worker Program is to “encourage the re-employment of qualified Oregon workers who have permanent disabilities from on-the-job injuries and who are not able to return to regular employment because of those injuries.”[ 103] This program is funded by the Workers’ Benefit Fund.[ 104] The major program benefits include premium exceptions, claim cost reimbursement, and wage subsi- dies.[ 105] More specifically, under this program, an employer is not responsible for paying workers’ compensation insurance premiums or premium assessments on a preferred worker for three years from the date of hire or eligibility.[ 106] Additionally, the employer may receive a 50 percent wage reimbursement for the preferred worker for 183 days.[ 107] Finally, the program provides assistance for employment purchases, up to certain maximum dollar amounts.[ 108] For example, the program provides for tuition, books, and fees; temporary lodging, meals and mileage to attend instruction; tools and equipment; clothing; moving expenses; initiation fees; occupational certification; worksite creation costs; and worksite modification.[ 109]

An eligible worker automatically receives a Preferred Worker Program identification card when the insurer or self-insurer reports that the employee has been released to restricted duty due to the compensable in- jury.[ 110] This card puts employers on notice that they may be entitled to the program’s benefits if they employ such workers.[ 111] Ninety-two percent of respondents to a DCBS survey reported they would utilize the Preferred Worker Program again and found all aspects of the program useful.[ 112]

5. “Safety Net” for Workers Following Settlement Finally, Oregon allows injured employees who have settled their claims an opportunity to take advantage of the Preferred Worker Program if they still require assistance obtaining employment.[ 113]

III. MODEL RETURN-TO-WORK PRACTICES Workers’ compensation laws were first enacted in 1911, and the Supreme Court’s interpretation of the Commerce Clause at the time led to a state- by-state system rather than a federal system.[ 114] Some scholars argue that the varying and fractured discrepancies in state laws “interfere with the goals of uniformity, efficiency, fairness, and predictability in our workers’ compensation system.”[ 115] In 2009, Congressman Joe Baca introduced H.R. 635, a bill that would establish a renewed National Commission on State Workers’ Compensation Laws to address some of the inequities in the current workers’

compensation system.[ 116] Congressional findings showed that current state workers’ compensation schemes may not be appropriate in light of “increases in medical knowledge, changes in the hazards associated with various employment, new risks to health and safety created by new technology, and increases in the general level of wages and in the cost of living.”[ 117] The duties of the Commission would involve studying and evaluating workers’ compensation laws to determine whether changes need to be made to accommodate the modern employer and injured employee.[ 118] The Commission would also submit interim reports to the president and Congress detailing its findings and making recommendations with regard to improvements in state workers’ compensation systems.[119 ]A similar commission was established in 1972 and produced a well-known and influential report calling for reform.[ 120]

Because the bill died in the House, it is unclear whether a reconvened national commission would have recommended federalizing the workers’ compensation system in order to effect uniformity.[ 121] Congressman Baca reintroduced the bill in 2011, but it suffered the same fate and Baca was not reelected in 2012.[ 122]

In the absence of a federal system, states must keep in mind the interests of both the employer and injured employee when drafting model policies, and recognize that these interests are not necessarily at odds. Both the employer and employee require incentives to make the transition back to work smooth and effective. States could consider five possible modifications: ( 1) improvements to light duty, ( 2) mandatory reinstatement and premium discounts, ( 3) accountable job searches, ( 4) medical and vocational rehabilitation, and ( 5) the innovative Oregon system.

A. Improving the Light Duty Job Offer First, the use of the light duty job offer is the most widespread return-to- work program utilized by the states. Although this scheme is effective in theory, the reality is that in many states the system can be manipulated to undue advantage. Employees in some states need only attempt to perform the job for a short period of time before they can claim they are incapacitated, thereby forcing employers to immediately recommence benefits until a hearing can be had on the issue of whether the employee unjustifiably refused suitable light duty. For example, Georgia formerly required claimants to attempt to work for an hour before they could claim an inability to do the job, return home, and continue to collect total disability benefits. The burden then shifted to the employer/insurer to request a hearing to address the issue of whether the employee can perform the work and is unjustifiably refusing the suitable light duty job. These provisions failed to encourage the injured employee to keep trying to return to work and did not encourage the employer to offer light duty work.

To address this shortcoming, the legislature adopted an alternative approach and amended the law in 2013.[ 123] Instead of immediately shifting the burden to the employer to prove unjustifiable refusal, the employee must make a more extensive effort to perform suitable light duty. For example, the employer must secure return-to-work restrictions from the treating physician for a light duty job before formally offering the job to the injured worker within those restrictions. Once the position is approved, as is customary in most states, the employee must return to work on a specified date and time. The employer

is required to compensate the employee with temporary partial disability benefits, in addition to salary, if there is a loss of income while making an effort to perform the job. The employer/insurer pays total disability lost time benefits for any full days of lost time due to a claimed inability to perform the light duty job during the grace period. The employee must attempt the proffered job for the greater of eight cumulative hours or one scheduled workday. If after fifteen working days the injured employee has made several good faith attempts to return to work to no avail, the employer must recommence total disability benefits, subject to its right to request a hearing to determine whether the injured employee has unjustifiably refused suitable work.

The result of the amendment is that the employee is compensated to try to work, his lost time benefits continue while he is trying to return to work, and the employer is given another chance to return his employee to suitable employment. On the other hand, if the employee does not attempt to perform the job at all on any of the scheduled times during the proscribed period of time, the employer may unilaterally suspend his lost time benefits, subject to the employee’s right to request a hearing to determine whether he has justifiably refused light duty. At that time, the burden shifts to the injured worker to demonstrate ongoing disability. This system encourages honesty and takes into account the needs of both the employer and injured worker. Georgia could improve its system by requiring mediation to try to resolve the return-to-work issues while the hearing was pending. The mediation would be given a high priority by the board, which would schedule expedited mediations and hearings on return-to-work issues.

Similarly, providing temporary alternative or transitional work opportunities is another effective tool in bringing injured employees back to work. As stated above, those who remain out of work for extended periods of time often never return. Although some employers may not have temporary positions available, experts recommend sending an injured employee elsewhere to work at a local charity, a program also known as “modified duty off-site.”[ 124] Transitional work has been shown to save claims costs. In Ohio, a Bureau of Workers’ Compensation study showed that employers that used a transitional work program saved $1,108 on average in compensation claim costs and an average of $139 in medical costs per claim.[ 125] Those employers were also able to return injured workers to the job ten days sooner than employers that did not utilize a transitional work program.[ 126] In addition, employers gain ancillary benefits: they “are seen as ‘good citizens’ by offering their employees” to charities, the donation may be tax deductible, insurers can better manage claim costs leading to more affordable renewal rates, and nonprofits benefit by “receiving scarce volunteers for valuable services.”[ 127] However, court opinions on modified duty off-site work are scarce and, without legislative authorization of such programs, a risk exists that they may be challenged.[ 128]

States that currently mandate temporary alternative work opportunities do not allow the employee the chance to justifiably refuse the offer and continue to collect disability benefits. Rather, the statutes appear to unconditionally permit the employer to request a reduction or termination of compensation if the employee refuses the work.[ 129] Unlike the light duty job offer, this provision provides a stronger financial incentive for the employee to return-to-work.

Statutes could also provide for companies to offer light-duty based on business models with gradual or innovative work programs. To allow for staff who had become new parents to spend more time at home, the University of Michigan Department of Business and Finance implemented gradual return-to-work policies.[ 130] New parents have a six-month period after childbirth where they can work at 50 percent to 80 percent of their normal workload while maintaining full-time status.[ 131] Companies such as Best Buy and Sun Systems have created “results only” and “open work” business models that allow for clockless, any place, any time work.[ 132] Although industrial conditions and employees’ varied disabilities may limit many employers from taking advantage of these options, their availability could be helpful for some.

B. Carrot and Stick: Mandatory Employee Reinstatement and Premium Discounts Compelling employers to reinstate injured workers where there is work available to which the employee could be assigned could work well in conjunction with premium discounts or dividends. That is to say, employers would have the burden to make room for injured workers only where such arrangement is reasonably feasible. They would be held accountable because they would face monetary penalties for failure to comply. At the same time, employees are discouraged from refusing the offer for fear their lost time disability benefits will be suspended. However, just as the light duty job offer may promote dishonesty on the part of the injured employee, this statutory provision may allow employers to further stall the return-to-work process. More specifically, employers may be reluctant to bring injured employees back to work because they worry that injured employees will display poor attitude problems, in turn leading to decreased productivity and morale among other employees. Employers may also experience anxiety at the thought of returning an injured employee to work for fear that the employee will sustain a new injury or aggravate the prior injury. Saddling employers with a negative financial incentive may further exacerbate the already tense situation.

If employers decrease their costs by returning injured workers to suitable employment, perhaps a tangible reward is in order. In order to sweeten the arrangement for employers, states could adopt Colorado’s policy of providing a premium dividend of up to 10 percent if an employer rehires injured employees at their pre-injury wages. Using reinstatement rights and premium dividends together ensures that both the employer and injured employee get something out of the deal, and the ultimate goal of returning employees to suitable employment at their pre-injury wages is accomplished.

C. Ensuring the “Job Search” Is Effectively Performed In the alternative, if it is not feasible for employers to return injured workers to light duty jobs, or if the employee is physically unable to return to available modified employment with his former employer, states could enact statutory provisions to mandate that employees conduct continuing good faith job searches, within their physical restrictions, in order to continue to be eligible for disability benefits. This would be similar to the ongoing job searches required to collect unemployment insurance. States like Ohio and North Dakota currently require job searches as a condition to the receipt of disability benefits.[ 133]

However, job searches are not customarily required to continue after the employee is awarded lost time total disability benefits, even where the employee is subsequently released by his or her physician to

restricted duty work. Furthermore, job searches are often relegated to mere formality whereby employees simply provide the right answers to questions or go through the motions without really looking for suitable work.[ 134] In order for job searches to have any value as a return-to-work program, states must require specific evidence to show that employees are in fact undertaking a good faith search for work within their physical restrictions.

First and foremost, the burden of proving a sufficient job search must be on the employee. States could require more specific evidence of the job search to assure that such an undertaking is done effectively and in good faith. For example, states could demand more evidence of the steps the employee took to complete a good faith work search, such as the number of employment applications submitted, whether job interviews were in person or over the phone or online, and whether employees revealed their restrictions to potential employers in order to satisfy their burden that they were unable to obtain suitable employment because of their job injury. One potential means for developing evidence could be to require employers to post a list of temporary staffing agencies and recruiters. Employees would be required to use that panel much like they are required to use a doctor from the employer’s posted panel of physicians.[135 ]For example, an employer could use Pittsburgh-based Catalyst RTW, a service that “provides the unique combination of motivation, support and opportunity which overcomes seemingly insurmountable barriers to employment” by collaborating “with local and national vocational companies for on-site services.”[ 136]

Court supervision of the job search would be another alternative to assure that the employee continues to look for suitable work in exchange for continued receipt of lost time disability benefits. Court supervision could be accomplished primarily by vocational rehabilitation, hearings, or both. Rehabilitation counselors have long been used in the workers’ compensation system to assist employees in finding work within their physical restrictions.

States could have mandatory periodic status hearings to ensure that injured employees are actively looking for work. For example, the first hearing could occur three months after the date the employee was released to light duty work. If at that time the employee proved he was unable to obtain employment within his work-related restrictions, he would be entitled to continue to receive temporary total disability benefits. These status hearings could be held every three months until fifty-two aggregate weeks had expired from the date the employee was released to light duty work.[ 137] If the employee was still unable to obtain suitable employment at that time, the employer would be able to reduce his total disability lost time benefits to temporary partial benefits. Even after the injured worker’s benefits are reduced to temporary partial levels, he would have to continue to prove an ongoing viable job search at status hearings. However, once the employee’s benefits have been reduced, the status hearings could be held every six months. If at any time an injured worker fails to look for suitable work, employers would be entitled to unilaterally suspend benefits until the following status hearing. This result would ensure that employees take a proactive role in returning to the work force.

D. Medical and Vocational Rehabilitation: Improving the Mind and Body Of course, in many instances returning an employee to work following a job injury is not only a matter of

providing legal and financial incentives to employers and employees. An injured worker typically has some loss of bodily function that may prevent him from returning to his former job or at the very least prevents him from returning for some period of time. Therefore, both medical and vocational rehabilitation services are critical to bringing a recovered employee back to the work place. Arguably these services must be utilized together in order to facilitate the best result. States that emphasize medical recovery but fail to use vocational rehabilitation may be extending the period of time an employee remains out of work.

E. Lessons from Oregon: An Innovative System Legislators across the United States have studied the Oregon scheme when considering improving their respective workers’ compensation sys- tems.[ 138] One study conducted by the Rand Institute for Civil Justice compared the median number of days off following a work injury and found that at thirty-eight days, Oregon’s median number of days was slightly longer than Wisconsin (thirty-six days), shorter than Washington (forty-five days), but significantly shorter than New Mexico (seventy- seven days).[ 139] This information lends some credence to the strength of Oregon’s return-to-work system. Still, although lessons can be gleaned from the structure in Oregon, the Workers’ Compensation Research Institute warns that a process that is successful in one state may not provide the same results in another.[ 140]

Though Oregon has enacted return-to-work provisions that are similar to other states, it also has special programs unlike any other state. Both the Employer-At-Injury and Preferred Worker Programs provide incentives to employers and employees to encourage early return-to-work. As stated above, system participants stated they were pleased with the programs and would recommend them to other states. Under an Employer-At-Injury program, employers would receive significant wage subsidies for returning employees to early modified work. These allowances could assist the employer with the various costs associated with bringing an injured worker back to work, such as work site modifications, tools and equipment, clothing, and other expenses. By the same token, the Preferred Worker Program works somewhat like the former second injury funds in that it would encourage employers to hire employees who have sustained prior injuries that prevent them from returning to their former jobs. However, unlike second injury funds, the Preferred Worker Program would provide multiple financial incentives to employers, such as insurance premium discounts and wage subsidies. Perhaps more importantly, injured workers would be given a second chance in the workplace and would be provided with sufficient education and training to ensure they are successful in their new jobs. Finally, states could offer employees more assistance even after they have settled their claims in the form of continued eligibility for the Preferred Worker Program.

IV. CHALLENGES TO DEVELOPING RETURN-TO-WORK PROGRAMS Although return-to-work policies provide numerous benefits to employers and employees, their implementation can be difficult. In addition to state law, federal statutes can raise a host of issues. Requirements under the Americans with Disabilities Act (ADA)[ 141] and the Rehabilitation Act, as well as the Family Medical Leave Act (FMLA),[ 142] provide two examples.

First, the circuits are split on the legality of return-to-work policies that require a doctor’s note detailing the nature of the employee’s illness before returning to duty.[ 143] Employees claim that doctors’ notes

violate the ADA, which requires medical inquiries be driven by business necessity and be job-related.[ 144] In 2003, the Second Circuit held that even requiring “general diagnoses” in doctors’ notes exposed employees with disabilities to stereotypes.[ 145] However, in 2009 the Sixth Circuit approved a policy that required a doctor’s note stating the “nature of the illness and whether the employee is capable of returning to regular duty.”[ 146] The court stated that “the analysis in the present circumstances should focus on whether a medical inquiry is intended to reveal or necessitates revealing a disability, rather than whether the inquiry may merely tend to reveal a disability.”[ 147] The court concluded that a description of the nature of an illness does not necessitate revealing an illness and is, therefore, not prohibited by the ADA or Rehabilitation Act.[ 148]

Additionally, the ADA requires reasonable accommodations for employees with disabilities; those accommodations include absence or leave from work if the employee, through that time off, could regain ability to work.[ 149] Any return-to-work program must ensure it is not forcing an employee to return in violation of the ADA.

Second, the nuanced analysis of leave and disability discrimination can be difficult because of overlays between workers’ compensation statutes and the FMLA.[ 150] “For example, employers need to be wary of terminating disabled employees, such as those with cancer, who have exhausted their FMLA leave, and who need additional leave time to heal before returning to work.”[ 151] The Equal Employment Opportunity Commission has required employers to provide additional unpaid leave time for employees in those situations.[ 152] But where return-to-work, rather than termination, is the issue, both the Sixth and Seventh Circuits have held that the FMLA and ADA do not obligate an employer to provide light-duty work to an injured employee.[ 153] Both courts focused on the FMLA language stating that “if an employee cannot perform an essential function of [his] original position because of a physical or mental condition, the employee has no right to restoration to a different position under the FMLA.”[ 154] Although an employee is not entitled to light duty because it is not equivalent to the original position, employers must carefully evaluate whether the duties the employee is unable to perform are “essential.”[ 155]

V. CONCLUSION No legal solution can take the pSlace of employers, employees, insurance adjusters, physicians, and attorneys working together to facilitate the return-to-work process. However, many of the suggestions above ( 1) contemplate rehabilitating the mind and body to bring the injured employee back to work by providing incentives to ease frustrations, ( 2) provide financial assistance in times of need, ( 3) require the employee to make a continuing job search for work within his or her physical restrictions, and ( 4) place some responsibility on the employer to help the employee get back on his feet. Statutory provisions that effectuate these goals recognize that employers need assistance and should be rewarded for their efforts in bringing the injured back to work. By striking a balance between the interests of the employer and those of the employee, states can more effectively govern the return-to-work process.

Footnotes 1. See Margaret Spence, Return to Work Program 101: The Grim Statistics 80 Million Lost Work Days Due to Injury or Illness, WORKERS COMP GAZETTE, Apr. 16, 2008, occupational-injury-or-illness/ (last visited May 4, 2015) (examining the effect injury and illness have on the work force). Although the URL for this story refers to 80 billion lost work days, the correct statistic is indeed 80 million.

2. Id.

3. Press Release, Nonfatal Occupational Injuries and Illnesses Requiring Days Away from Work, Bureau of Labor Statistics (Nov. 26, 2013), nr0.htm (last visited Apr. 22, 2015). The total number of employees filing claims is down from 1.2 million in 2008, but the average number of days missed increased from seven days. Spence, supra note 1 and accompanying text.


5. See Jim Barlow, Opinion Column, Hous. CHRON., Oct. 31, 2000, available at 2000 WLNR 6361505 (stating that companies that make the effort to design and implement light duty work for injured workers “wind up with improved morals, more productivity and a better work force”); WORKERS’ COMP. GUIDE § 6:4, Analysis and Guidelines — Accelerating Return to Work (stating that if employers return injured employees to the workplace early they can reduce medical claim costs by 15 percent to 20 percent and can save 80 percent to 100 percent of lost wages costs).

6. See WORKERS’ COMP. GUIDE § 6:4 (reporting that employees who do not return to work within 90 days of injury have less than a 50 percent chance of ever returning, and employees who do not return to work within 120 days of injury have less than a 10 percent chance of returning to any job).

7. Id.

8. Id.

9. Spence, supra note 1 and accompanying text.

10. Id.

11. Id. See also 43% of Employers Don’t Have a Return-to-Work Program, Says Poll,, +20-0ct- 2008+MW20081020 (last visited Apr. 22, 2015) (stating that only 57 percent of employers that answered a poll reported having a return-to-work program designed to bring injured employees back to work quickly).

12. See WORKERS’ COMP. GUIDE, supra note 5, § 6:1.

13. David B. Torrey, The Common Law of Partial Disability and Vocational Rehabilitation under the Pennsylvania Workmen’s Compensation Act: Kachinski and the Availability of Work Doctrine, 30 DUQ. L.

REV. 515, 598 (1991).


15. See Margaret Spence, Can Injured Employees Return to Work? Successfully?, July 30, 2008, (last visited Apr. 22, 2015) (contending that effective return-to-work policies are implemented before the employee is injured).

16. Id.

17. Timothy M. Feeney, Getting Real: Managing the Case and Client Expectations to a Successful Outcome, 2013 WL 2139881 (Apr. 1, 2013) (“I have had incidents of bullying employees who filed workers’ compensation claims when they returned to work. Supervisors or coworkers may say to the person, ‘Your workers’ compensation claim is hurting the company. Why did you make that claim?'”); Maria Greco Danaher, Ostracism and Mistreatment May Constitute Hostile Work Environment, 15:13 LAWS. J. 10 (Allegheny Cnty. Pa. Bar Ass’n 2013) (detailing the 7th Circuit’s Title VII decision in Hall v. City of Chicago, 713 A.3d 325 (7th Cir. 2013), where a female plumber returned to work on light duty but was harassed for making her claim by a male supervisor). Feeney suggests trying to find out the claimant’s relationship with coworkers and supervisors before returning an employee to work as employers want good employees to return.

18. Approximately thirty-nine states provide that temporary total disability benefits can be terminated if an employee refuses an offer of suitable employment. Such states include, but are not limited to, Alabama, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Maine, Michigan, Minnesota, Montana, New Mexico, North Carolina, South Carolina, Tennessee, and Virginia.

19. GA. CODE ANN. § 34-9-240 (West 2014). Note that Alabama, Arkansas, Delaware, Florida, Indiana, North Carolina, South Carolina, and Virginia, among others, have statutes similar or identical to that of Georgia. However, unlike other states, Georgia does allow a claimant to recover any permanent partial disability (PPD) benefits to which he or she may be entitled during the period he refuses a suitable job offer from the employer.

20. 4 LARSON’S WORKERS’ COMP. LAW § 85.03 (2014).

21. See State Board of Workers’ Compensation Form WC-240(a).

22. Georgia Board Rule 240(b)(2)(i).

23. City of Adel v. Wise, 401 S.E.2d 522, 524 (Ga. 1991).

24. See Martines v. Worley & Sons Constr., 628 S.E.2d 113 (Ga. App. Ct. 2006).

25. Id. at 26.

26. Id. at 28.

27. GA. CODE ANN. § 34-9-240(b)(2) (West 2014); Georgia Board Rule 240(b)(3).

28. City of Adel v. Wise, 401 S.E.2d 522, 525 (Ga. 1991).

29. Id. at 524.

30. 401 S.E.2d 522 (Ga. 1991).

31. Id. at 525 (citing Shogren v. Bethesda Lutheran Med. Ctr., 359 N.W.2d 595 (Minn. 1984)).

32. Clark v. Georgia Kraft Co., 345 S.E.2d 61 (Ga. App. Ct. 1986).

33. Id. at 62-63.

34. See City of Adel v. Wise, 401 S.E.2d at 525 (Ga. 1991) (citing Acco-Babcock, Inc. v. Counts, 1988 WL 31967 (Del. Super. Ct. 1988)).

35. See McDaniel v. Roper Corp., 256 S.E.2d 146 (Ga. App. Ct. 1979) (holding that an employee could not refuse employment within her restrictions because she did not want to work second shift).

36. N.C. GEN. STAT. ANN. § 97-32.1 (West 2014).

37. N.C. GEN. STAT. ANN § 97-32.1.

38. N.C. GEN. STAT. ANN § 97-32.1 (West 2014).

39. GA. CODE ANN. § 34-9-240(b)(1). Note, however, that the employer may then file a hearing request to contest the reinstatement of benefits.

40. See N.H. REV. STAT. ANN. § 281-A:23-b (2014) (“All employers with 5 or more employees shall develop temporary alternative work opportunities for injured employees. If the employee fails to accept temporary alternative work, the employer may petition ​ to reduce or end compensation. Notwithstanding ​if an injured employee returns to temporary alternative work within 5 days of sustaining the injury, such employee shall be paid workers’ compensation from the first date of injury”).

41. For an overview of this return-to-work scheme, see New Hampshire Department of Labor, (last visited Apr. 22, 2015) (emphasizing the importance of physicians, employers, and adjusters working together to bring the injured employee back to work).

42. Id.

43. Id.

44. Id.

45. Id.

46. Id.

47. COLO. REV. STAT. ANN. § 8-42-107.6 (West 2014).

48. For an overview of each state’s workers’ compensation rehabilitation schemes, see the table, “Rehabilitation Benefits Provided for Injured Workers Under State Workers’ Compensation Laws,” (effective 2005, last visited Apr. 22, 2015).

The U.S. Department of Labor, which created this table, no longer researches and compiles comparative data on state workers’ compensation programs. Those tasks were inherited by the Workers Compensation Research Institute (WCRI) and the International Association of Industrial Accident Boards and Commissions (IAIABC), which jointly publishes a compilation biennually. Currently, Table 14 is “Rehabilitation Benefits Allowed Under Workers’ Compensation Systems.” See WORKERS’ COMPENSATION LAWS, 5th ed. (as of Jan. 1, 2014) (WCRI/IAIABC 2014), available at (Resources link) (members only).

The U.S. Chamber of Commerce also publishes an annual compilation of state workers’ compensation laws characteristics. Currently, Chart X of that compilation details the rehabilitation programs available in all states. See U.S. CHAMBER OF COMMERCE, 2013 ANALYSIS OF WORKERS’ COMPENSATION LAWS (2013).