When you’ve suffered injuries due to a workplace accident, one of the first things on your mind is – “when can I return to work?” For most people, work is a large part of their lives, and it makes up much of who they feel they are as a person. If your injuries make returning to your previous position impossible, what are your legal rights? Being unable to work has far-reaching physical and emotional ramifications. In this article, we’ll discuss your legal options from a workers’ compensation perspective should you be unable to return to your job after a workplace injury.
In California, the Supreme Court has stated that if you’re unable to return to your usual and customary work due to medical restrictions related to your industrial injuries, it is legal for your employer to deny your return to work. And, of course, some employees become severely disabled after a workplace accident and they know full well they’ll be unable to return to work. In these instances, your legal rights must be examined by looking at not only the state of California workers’ compensation laws, but also California employment laws and federal Social Security disability laws as well.
After a workplace injury, your treating physicians will hopefully provide the necessary treatment to give you back as much of your bodily function as possible, based on the severity of the injuries you’ve sustained. When, in the course of your treatment, you are getting no better but no worse, your physician may find that you have reached the point of Maximum Medical Improvement or MMI. At the point of MMI, your ability to return to work becomes important. If your treating doctors restrict you from returning to your usual and customary work, you can challenge this decision by utilizing either an Agreed Medical Examiner (if you are represented by an attorney and an agreement to use an AME can be reached by the parties) or a state Panel-Qualified Medical Examiner. These medical examiners will examine you with your job duties in mind. If they also agree that you should be restricted from returning to your usual and customary employment, it is legal for your employer to prohibit you from returning to work, if they do not have any modified or alternative positions available within the work restrictions given.
At this point in time, the California Fair Employment and Housing Act (FEHA) requires an “interactive process” where you will meet in person with your employer, to discuss whether there is any alternative or modified work available that you may be able to do. If there isn’t any modified or alternative work available to you, you still have to attend this meeting. Failure to do so is a violation of California employment law.
Also, your employer will consider your physical restrictions before deciding to offer you “modified work”. Modified work means that only a portion of your usual and normal work duties need to be adjusted before you can work. If no modified work is available, your employer may choose to offer you “alternative work”, which would equate to a different but similar type of work with the same rate of pay and location of employment. If alternative work is chosen, you must be paid at least 85% of what you were previously earning before your injuries, and the location of employment must be located within a reasonable distance for commuting.
Luckily, under current California Workers’ Compensation laws, you are entitled to supplemental benefits if you’re unable to return to work for your employer due to the work restrictions related to your industrial injuries. These benefits are called Supplemental Job Displacement Benefits (SJDB), and they take the form of a voucher. For injuries on or after January 1, 2013, thes SJDB vouchers are worth up to $6,000.00, that can be used for a number of educational training or skills improvement purposes, including, but not limited to:
The Supplemental Job Displacement Benefits voucher is non-transferable, has no cash value and therefore can’t be cashed in, and can’t be utilized for any other purpose. When you use the voucher, the issuing insurance company must reimburse you or directly pay the training provider within 45 days of receiving receipts or other paperwork regarding the training program or school.
The following requirements must be met in full to become eligible for a voucher:
Keep in mind that if your previous employer offers you suitable modified or alternative employment and you refuse, you are not eligible to receive the job displacement voucher. The employer, by law, must make the offer to you within 60 days of receipt of a doctor’s statement, called a Physician’s Return-to-Work and Voucher Report, saying that you are “permanent and stationary”, and also outlining your new work restrictions. Also, the SJDB vouchers once issued needs to be promptly used within the required time frames, since they do have an expiration date if issued on or after January 1, 2013.
In addition, if the injury for which the voucher was issued occurred on or after January 1, 2013, on top of the SJDB voucher worth up to $6,000.00, you might also be entitled to an additional $5,000.00 benefit from the California Department of Industrial Relations through their separate Return To Work Supplement Program (RWSP). Therefore, if you receive a SJDB voucher for an injury on or after January 1, 2013, you should immediately check into, and if eligible, apply for the RWSP benefit to protect any rights you might have to this benefit, given there are strict time limits for applying and receiving this potential benefit. Currently, application for this potential RWSP benefit can be made online.
If you are deemed unable to return to work in any capacity, you will need to explore your eligibility for Social Security disability benefits. An experienced Social Security Disability attorney can help you navigate the often complex and confusion processes involved in filing for disability. It isn’t uncommon for a disabled worker to have their request for Social Security disability denied several times, so an attorney skilled and knowledgeable in Social Security disability law is absolutely necessary.
While returning to work is the goal that the majority of employees hurt in workplace accidents desire, it may simply not be possible. If that is the case, you should explore all of the above benefits, and seek out legal counsel to inform you of your legal rights to various types of compensation.
Attorney Todd Tatro focuses his practice on one type of law only – Workers’ Compensation law in California. He is a Certified Workers’ Compensation Specialist who has decades of experience fighting for injured workers’ rights. Contact Attorney Tatro to schedule a free consultation by calling (559)431-0123, or contact him through his online contact page.