Mark C. PetersonJune 2, 2015

AN INJURED EMPLOYEE’S RETURN TOWORK AND THE IMPACT ON WORKER’S

COMPENSATION EXPOSURE

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Mark C. PetersonMark Peterson defends numerous employers and sureties atall stages of workers’ compensation matters including athearings and mediations before the Idaho IndustrialCommission and in appellate matters before the SupremeCourt of Idaho. Mr. Peterson’s workers’ compensationexperience spans from small companies to some of thelargest employers and insurance companies in the world. Hisexperience also includes representing employers and suretiesin compliance matters before the Idaho IndustrialCommission.

Mark represents individuals and entities in a wide variety oflitigation matters including breach of contract, negligence,liens, collections and other general litigation.

Mark represents multiple medical providers in varioustransactional and litigated matters. His health law practiceincludes the representation of hospitals in medical indigency,collections, medical liens, federal regulatory compliance,involuntary Mental Health commitments, claims againstestates, and judicial confirmation of contractual relationshipswith governmental entities. His health law experience alsoincludes representing hospitals in licensing issues andsuccessfully preventing the improper disclosure of mentalhealth records by the Idaho State Department of Health &Welfare.

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• There is no requirement under Idaho’s workers’compensation law to provide modified duty work toan employee who has physical restrictions due to awork-related accident or occupational disease.

• However, benefits under the workers’ compensationsystem are impacted by an employer providingemployment to an injured worker who has work-related restrictions.

Workers’ Compensation

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• Benefits of making light duty work available:

– Employee

– Employer

• Indirect Impact

• Direct Impact

Benefits to Employees and Employer

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• American Academy of Orthopedic Surgeons hasissued a position statement favoring early return towork programs.

• Most states, including Idaho, favor early return towork.

Well-Established Trends Favor EarlyReturn to Work

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• Financial incentives: Employees returning to workreceive more income through wages than workers’compensation benefits.

• Prevents deconditioning.

• Encourages and accelerates recovery.

• Prevents psychological behavior patterns inhibitingsuccessful return to work.

• Improves quality of life.

Benefits to Employees

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• Worker retention

• No rehiring and retraining

• Reduced costs for lost production

• Reduced business interruption

• Improved workforce morale

Benefits to EmployerIndirect Impact

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• Temporary Total Disability Benefits

• Temporary Partial Disability Benefits

• Permanent Partial Disability

• Total Permanent Disability

Benefits to EmployerDirect Impact

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• Until found by a physician to have reached maximummedical improvement, an injured worker is entitled to:

– Temporary Total Disability: If no work is available to theemployee consistent with the physician-imposedrestrictions, then the employee is entitled to a portion(generally 67 percent) of his or her average weekly wage.

– Temporary Partial Disability: If less than full wages areavailable to the employee, then the employee is entitled toa portion of the difference in wages.

Temporary Total Disability and TemporaryPartial Disability Benefits

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The Malueg Doctrine

If a claimant remains in a period of recovery, they are entitled to totaltemporary disability benefits unless and until:

1) they have been medically released for light duty work; and

2) the former employer has made a reasonable and legitimate offer ofemployment which:

a) the employee is capable of performing; and

b) employment is likely to continue throughout period of recovery.

The employer may also meet the burden by demonstrating appropriateemployment is available in the general labor market, which Claimant has areasonable opportunity of securing and which employment is consistent withthe terms of the light duty work release.

Malueg v. Pierson Enterprises, 111 Idaho 789 (1986).

Temporary Total Disability Benefits (cont’d)

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• Making modified work available to an employeewho has recovered enough from injury or illness todo some work, but has physician restrictions duringthe recovery period preventing the employee fromfulfilling all of the physical requirements of the job.

What Is Light Duty Work?

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• Worker, physician, management, supervisor,sometimes the Industrial CommissionRehabilitation Division (“ICRD”)

• Identify real jobs

• Develop clear job descriptions

• Video helpful for physicians

• Consistency

Team Approach Needed for Success

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Offers of modified duty employment should generally:

• Be made in writing.

• Identify the job, shift, and wage that is beingoffered.

• Instruct the employee when he/ she is to report towork.

• Represent that the modified duty job is to lastduring the expected period of recovery.

Offers of Temporary Work

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• State that the job is within the current physician-imposed restrictions.

• Instruct the worker not to do work outside thephysician-imposed restrictions and to report to thehuman resources designee if asked to work outsidethose restrictions.

• Require a signature acknowledging acceptance ofthe offer.

Offers of Temporary Work (cont’d)

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• An employee who rejects a bona fide modified dutyjob offer is not entitled to temporary disabilitybenefits.

Offers of Temporary Work (cont’d)

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• Permanent partial disability is a potential benefit to aninjured worker designed to compensate for loss of earningcapacity resulting from permanent limitations orrestrictions.

• Disability in excess of impairment is a rather nebulouspart of the workers’ compensation system designed toassess loss of earning capacity. In a rather loose way, theIndustrial Commission focuses on a claimant’s pre- andpost-accident earnings and any loss of access to the labormarket based upon permanent physical restrictions.

Permanent Partial Disability

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• Permanent Partial Disability is calculated under astatutory formula based upon a 500 week model.

• Example: A worker who has a 50 percent disabilitybased upon a 2015 injury would receive $94,737.50(500 weeks x .50 = 250 x $378.95). The employerwould get credit for any impairment paid.

Permanent Partial Disability (cont’d)

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• Although not statutorily provided, the IndustrialCommission tends to award smaller disabilityawards when the employee remains employed withthe employer.

– No or little wage loss.

– Shows ability to compete in the labor market andperform the nature of work.

– However, the absence of wage loss even if working timeof injury job does not preclude disability if there arepermanent limitations restricting access to labor market.

Permanent Partial Disability (cont’d)

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• An injured worker is considered totally and permanentlydisabled if there is no work available in the general labormarket absent a sympathetic employer, temporary goodluck, or the extraordinary effort of the worker.

• A worker found totally and permanently disabled isentitled to weekly time loss benefits for the rest of his orher life.

• Total and permanent disability findings where the injuredworker remains employed with the time-of-injuryemployer are extremely unusual, but such determinationsdo rarely occur.

Total and Permanent Disability

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Questions/Comments?

THANK YOU!

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Mark C. Peterson

MOFFATT THOMAS

101 S. Capitol Blvd., 10th FloorBoise, ID 83702

mcp@moffatt.com

(208) 345-20001-800-422-2889

www.moffatt.com

For more information or questions,please contact:

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