Returning to Work

Returning to work safely and promptly can help in your recovery. It can also help you avoid financial losses from being off work. After you are hurt on the job, several people will work with you to decide when you will return to work and what work you will do. These people include:

• Your treating doctor
• Managers who represent your employer
• The claims administrator handling your claim for your employer.

Sometimes doctors and claims administrators do not fully understand your job or other jobs that could be assigned to you. That’s why it is important that everyone stay in close contact throughout the process. You (and your attorney if you have one) should actively communicate with your treating doctor, your employer and the claims administrator about:

 

The work you did before you were injured

• Your medical condition and the kinds of work you can do now
• The kinds of work your employer could make available to you.

Soon after your injury, the treating doctor examines you and sends a report to the claims administrator about your medical condition. If the treating doctor says you are able to work, he or she should describe:

• Clear and specific limits, if any, on your job tasks while recovering. These are called work restrictions. They are intended to protect you from further injury (example: no work that requires repetitive bending or stooping)
• Changes needed, if any, in your schedule, assignments, equipment or other working conditions while recovering (example: provide headset to avoid awkward positions of the head and neck)
• If the treating doctor reports that you cannot work at all while recovering you cannot be required to work.

If your treating doctor reports that you can return to work under specific work restrictions, any work your employer assigns must meet these restrictions. Your employer might, for example, change certain tasks or provide helpful equipment. Or your employer may say that work like this is not available. If so, you cannot be required to work.

If your treating doctor reports that you can return to your job without restrictions, your employer usually must give you the same job and pay you had before you were injured. The employer can require you to take the job. This could happen soon after the injury, or it could happen much later, after your condition has improved.

If the claims administrator’s letter says your employer is offering you work, the job must meet the work restrictions in the doctor’s report. The offer could involve:

• Regular work: Your old job, for a period of at least 12 months, paying the same wages and benefits as paid at the time of an injury and located within a reasonable commuting distance of where you lived at the time of your injury
• Modified work: Your old job, with some changes that allow you do to it. If your doctor says you will not be able to return to the job you had at the time of injury, your employer is encouraged to offer you modified work instead of supplemental job displacement benefits (SJDB). The alternative work must meet your work restrictions, last at least 12 months, pay at least 85 percent of the wages and benefits you were paid at the time you were injured and be within a reasonable commuting distance of where you lived at the time of injury
• Alternative work: A new job with your employer. If your doctor says you will not be able to return to the job you had at the time of injury, your employer is encouraged to offer you alternative work instead of SJDB. The alternative work must meet your work restrictions, last at least 12 months, pay at least 85 percent of the wages and benefits you were paid at the time you were injured, and be within a reasonable commuting distance of where you lived at the time of injury.

If your employer offers you modified or alternative work:

• You may have only 30 days to accept the offer. If you don’t respond within 30 days, your employer could withdraw the offer
• If you fail to respond to the offer of modified or alternative work within 30 days or reject the job offer, you will probably not be entitled to supplemental job displacement benefits.

If you were injured between Jan. 1, 2004 and Dec. 31, 2012, and your employer has 50 or more workers, and you are not offered regular, modified or alternative work, your weekly PD benefits will be increased by 15 percent once that offer is made.

If you were injured between Jan. 1, 2004 and Dec. 31, 2012, and your employer has fewer than 50 workers, and you are not offered regular, modified or alternative work, your PD benefits will not change.

If you were injured on or after Jan. 1, 2013, your permanent disability benefits will not change if you are not offered regular, modified or alternative work, regardless of the size of the employer.

The state’s experience and extensive studies have shown that the longer you stay off work the less likely you are to go back, and that leads to more wage loss and a lower quality of life. PD benefits will never make up for the money you lose by not returning to work, so these provisions were put in place to get you back to your job as soon as medically possible.

Of course, for some people this just may not be possible. Consult an I&A officer or an advocate of your choice if your situation is complex or you need to figure out what other resources are available to you.

Depending on your date of injury, you may still be entitled SJDB if the job does not last for 12 months or your disability prevents you from performing the tasks involved in the job. If you have concerns, talk to your employer or the claims administrator. If that doesn’t help, call a state I&A officer.

If you were injured on or after Jan. 1, 2004, and are permanently unable to do your usual job, and your employer does not offer other work, you may qualify for SJDB. This benefit is in the form of a voucher that helps pay for educational retraining or skill enhancement — or both — at state-approved or state-accredited schools.

For date of injury on or after Jan. 1, 2004 and prior to Jan. 1, 2013, employees who do not return to work for their employer within 20 calendar days from the expiration of time for making an offer of regular, modified, or alternative work will receive a voucher. The amount of the voucher is based on the percentage of disability:

• Up to $4,000 voucher for permanent partial disability of less than 15 percent
• Up to $6,000 voucher for permanent partial disability between 15 and 25 percent
• Up to $8,000 voucher for permanent partial disability between 26 and 49 percent
• Up to $10,000 voucher for permanent partial disability between 50 and 99 percent

Up to 10 percent of the voucher funds may be used for vocational or return-to-work counseling.

The law also says that an employer will not be liable for providing the SJDB to an employee if, within 30 days of the end of TD payments, an offer of modified or alternative work is made, and the employee rejects or fails to accept the offer in the form and manner prescribed by the DWC administrative director.

For injuries occurring on or after Jan. 1, 2013, the voucher amount is $6,000.00 regardless of the PD rating. The voucher will be due within 20 calendar days from the expiration of time for making an offer of regular, modified, or alternative work. The job must pay no less than 85% of the employee’s earnings at the time of injury and must be expected to last at least 12 months.

No. For injuries occurring between Jan. 1, 2004 and Dec. 31, 2012, if the employer sends a notice of offer of modified or alternative work within 30 days of your last temporary disability (TD) payment and the offer meets certain requirements, and you don’t accept the job, you’re not eligible for the voucher. The offer of modified or alternative work must meet the following conditions:

• You have the ability to perform the essential functions of the job
• The job is a regular position lasting at least 12 months
• The job offers wages and compensation that are at least 85 percent of those paid to you at the time of your injury
• The job is located within reasonable commuting distance of your residence at the time of injury.

For injuries on or after Jan. 1, 2013, if the employer makes an offer of regular, modified, or alternative work within 60 days after receipt by the claims administrator of the Physician’s Return-to-Work & Voucher Report and the offer meets certain requirements and you don’t accept the job, you’re not eligible for the voucher. The offer of modified or alternative work must meet the following conditions:

• You have the ability to perform the essential functions of the job
• The job is a regular position lasting at least 12 months
• The job offers wages and compensation that are at least 85 percent of those paid to you at the time of your injury
• The job is located within reasonable commuting distance of your residence at the time of injury.

Job offers should not be filed with DWC.

For injuries occurring between Jan. 1, 2004 and Dec. 31, 2012, if you are eligible for the voucher and you haven’t settled your eligibility (as part of an overall settlement in your case) you will receive the voucher from the claims administrator within 25 calendar days from the date your disability award is issued by the workers’ compensation judge at the local Workers’ Compensation Appeals Board district office. For injuries occurring on or after Jan. 1, 2013, the voucher is due 60 days after a treating doctor, AME or QME declares the injured worker permanent and stationary, and issues a report outlining the worker’s work capacities, if the employer does not offer the worker a job.

The claims administrator must issue reimbursement payments to you or direct payments to the VRTWC and training provider within 45 calendar days from receipt of the completed voucher, receipts and documentation.

Different doctors may have different opinions about a worker’s ability to do tasks safely. You have a right to question or disagree with a report written by your treating doctor. To dispute the doctor’s report about your ability to work:

• If you do not have an attorney, you must send a letter to the claims administrator stating that you disagree with the report. You must send the letter within 30 days of receiving the report
• If you have an attorney, contact your attorney right away. The deadline for stating your disagreement is 20 days

If your employer assigns or offers you work that does not meet the work restrictions required by your treating doctor, you don’t have to accept it. Contact a DWC I&A officer for more details on how to proceed.

It is illegal for an employer to discriminate against you because you requested workers’ compensation benefits or because you have a work-related disability. This is prohibited by California Labor Code section 132a, the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

However, an employer is not always required to offer you a job or offer a job that you may want. For example, there may not be any jobs you can do that meet the doctor’s work restrictions.

There is nothing more the DWC can do for you at that point, but other types of assistance may be available:

• State disability insurance (SDI) or, in rare cases, unemployment insurance (UI) benefits paid by the state Employment Development Department (EDD)
• Social Security disability benefits paid by the U.S. government for total disability
• Benefits offered by employers and unions, such as sick leave, group health insurance, long term disability insurance (LTD) and salary continuation plans
• A claim or lawsuit if your injury was caused by someone other than your employer.

You should also be aware that the federal Americans with Disabilities Act (ADA) prohibits discriminating against those with physical or mental impairments that substantially limit one or more life activities, and who can perform essential job functions. An employer is required to provide a reasonable accommodation if it would not impose an “undue hardship” on them.
For information on the ADA, call the Equal Employment Opportunity Commission at 1-800-USA-EEOC.

Additionally, the state Department of Fair Employment and Housing administers the California Fair Employment and Housing Act (FEHA), which prohibits harassment or discrimination in employment, housing and public accommodations. For more information on FEHA call 1-800-884-1684.

Not for injuries on or after Jan. 1, 2013.

The voucher does not expire if issued prior to Jan. 1, 2013. If issued on or after Jan. 1, 2013, the voucher will expire within two years of being issued or five years from the date of injury, whichever comes later.