Will I have to find a new job?
Many questions arise as an injured worker moves throughout the workers compensation process in Virginia. Most of my clients were happily carrying out the duties of their jobs when their accident occurred. Many employees have worked their way up with a particular employee and secured a substantial hourly wage or, in some cases, secured a job with a substantial salary. As a result, almost all of my clients are concerned about the security of their job. This question is related to another article that I wrote here about the impact of a termination of employment.
Many times, after we have secured the proper Award from the Virginia Workers Compensation Commission for an injured workers wage loss and payment of medical benefits, the question naturally arises: Will I have to find a new job because of my injury? As with nearly every legal question associated with workers compensation claims, the answer to this question is - It depends. Below are some scenarios that may help you understand whether your accident and injury may necessitate finding another job.
Many employees cannot return to their pre-injury job when they reach "maximum medical improvement."
The unfortunate reality for many of my clients is that regardless of how well they did their job, how qualified they are in their job and how well they recovered the employer may not be able to accommodate their work related disability once they reach "maximum medical improvement." Maximum medical improvement is a fancy way of saying that the injured workers doctor believes that the injured worker has improved to the point where the injured worker is "as good as the injured worker will get."
When this happens, many times the treating physician will assess permanent work restrictions. Doctors assess permanent restrictions in different ways. Some doctors base their opinion of permanent restrictions on similar patients in the past or based upon their experience with similar injuries and conditions. Other doctors prefer for the injured worker to have a "functional capacity evaluation."
A functional capacity evaluation is a test that is designed to show the doctor what physical activities the injured worker can and cannot perform safely. The test is sometimes part of a broader "work hardening" program which is usually an intensive several day or several week long program of physical reconditioning. Other times, the test is administered without any program. Usually the test is several hours long and may last up to 8 hours. Very often the test is adminstered by a physical therapist at a physical therapists office set up to conduct the tests. The test involves all sorts of lifting, standing, walking, bending and stooping exercises accompanied by observations by the physical therapist. In some cases, the physical therapist has information about the injured workers pre-injury job and is simply assessing whether the injured worker can return to that particular job. Other times, the test is conducted to offer a more general assessment of what an injured worker can and cannot do physically. During the test, the physical therapist attempts to assess whether the injured worker is giving their full effort to make sure that the test reflects the injured workers full capability. This assessment very often causes a conflict. On many occasions I will meet with my clients after the evaluation and review the report. Sometimes the report indicates that the injured worker gave "submaximal" effort and that the FCE is not valid. Many times my clients indicate that they experience pain during the test and were afraid to offer much more exertion. It is important for an injured worker to express during the FCE any issues they are having with particular aspects of the testing. I also recommend that my clients summarize the experience after the test and write down any concerns they had during the FCE and the physical therapists response.
In any case, once an FCE is done, the injured workers treating doctor will review the report and, many times accept the FCE report as representative of the injured workers physical functional ability. Other times the doctor may use the test, along with the doctors treatment history and experience to craft permanent work restrictions.
If the FCE reveals that the injured worker is not capable of performing the pre-injury job, sometimes employers offer work that accommodates the injured workers permanent restrictions. Rarely is such an offer intended to last for the injured workers entire work life which inevitably leaves the employer with a decision to either terminate the injured workers employment, continue to accommodate the injured workers restrictions, help the injured worker find other employment or simply pay the injured worker weekly workers compensation benefits. If you have been injured in a work related accident, have permanent restrictions and cannot perform your pre-injury job, please do not hesitate to contact our office to discuss your case.
Sometimes the injured worker and the employer agree to settle the workers compensation case with an agreement for the injured worker to resign
If an injured worker cannot perform his or her pre-injury job, many times the workers compensation insurance company will attempt to negotiate a full and final settlement of the workers compensation claim that requires a resignation from employment. All things considered, this is a relatively new way of negotiating workers compensation claims. When my practice began resignations were not always, or even often required, by employers and insurers. Gradually, over the years, insurance companies and employers have almost universally required that a resignation be signed in order to settle a claim. In many cases, this has made the negotiation process much more complex. However, we have successfully negotiated hundred, if not thousands, of workers compensation settlements with and without resignations. Many factors go into whether such resignation is required or even effective. Is the injured worker part of a union that offers other employment protections? Are their other laws applicable to the injured workers profession? Does the injured worker have retirement benefits that will be affected by the resignation? Each case is different and many questions can arise. An injured worker must carefully consider the settlement offer and his or her circumstances.