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Adam Weiner worked for the Elizabeth Board of Education and received an award of 100% total and permanent disability on October 18, 2000.  That entitled him to $480 per week for 450 weeks and thereafter.  That award was reduced on January 9, 2001 to $340.98 per week due to the social security disability offset rate. 

            The key development in this case occurred on April 1, 2002, when Mr. Weiner began receiving an ordinary disability pension benefit.  He did not disclose his receipt of ordinary disability pension benefits to the Board of Education, so the Board kept paying him $340.98 per week. 

            On April 29, 2010, the Board sought approval to access Mr. Weiner’s pension records to determine if it was entitled to an offset.  On August 10, 2011, Weiner and the Board entered into a consent agreement reducing Weiner’s disability rate going forward to $222.39. But there was no agreement on past overpayments of $57,753.33.

            This action was filed by the Board to obtain reimbursement for the overpayments between April 1, 2002 through August 10, 2011 totaling $57,753.33.   A hearing took place on August 1, 2012, and on August 29, 2012 the Judge of Compensation denied the Board’s motion for reimbursement based on the conclusion that petitioner did not have the ability to repay the funds.  The Board of Education then appealed.

            The Appellate Division was guided by the principle that “an underlying theme of the workers’ compensation law is that there should not be duplicative payments for the same disability” (citingYoung v. Western Elec. Co., 96 N.J. 220, 231 (1984).  The Court said that there is a two-step process: first, the Judge of Compensation must determine if petitioner was unjustly enriched for which the respondent has the burden of proof.  Second, the respondent can then “institute enforcement proceedings in the Law Division . . . which may be treated as a summary proceeding.”Hajnas v. Engelhard Mineral & Chemical Co., 231 N.J. Super. 353, 363 (App. Div. 1989). 

            The Court said, “It is considered unjust enrichment to permit the recipient of money paid under mistake of fact to keep it, unless the circumstances are such that it would be inequitable to require its return.” (citations omitted).  In this case, the Court felt that the Judge of Compensation did not take a detailed look at the ability of the petitioner to make reimbursement payments.

No evidential hearing was held.  The compensation judge’s finding that Weiner was unable to repay the money, and therefore, it would be inequitable to order reimbursement, was supported solely by ‘several years of his Individual Income Tax Returns, the most recent of which shows an annual salary of $17,295 for 2010.’ No statement of assets and liabilities evincing Weiner’s net worth was produced.  Further, no statement of income and expenses was considered by the judge of compensation.

            The Court reversed and remanded fur further proceedings.  “We will not indulge in hypothetical speculation of a net worth which would support the immediate return of the payments, which all parties agree, should never have been made to Weiner. Nor will we reach a conclusion based on incomplete facts concerning whether, after considering Weiner’s income and expenses, a payment plan would be appropriate.”

            This case can be found at Weiner v. Elizabeth Board of Education, A-0627-12T2 (App. Div. July 15, 2013).  It is an important case for employers for a number of reasons.  The Appellate Division endorses the right of the employer to obtain reimbursement of benefits that are overpaid to the petitioner, including payments from a disability pension.  It is also important because the situation in this case is rather common, namely that someone receiving workers’ compensation later obtains a disability pension without that information ever getting to the employer or carrier on a timely basis.  Lastly, the case is significant because it sets forth specific requirements for each party in an unjust enrichment claim.

The Supreme Court of Alabama recently addressed preemption of the Alabama Workers’ Compensation Act by the Federal Longshore and Harbors Workers’ Compensation Act (LHWCA) inFernando Rodriguez-Flores v. U.S. Coatings, Inc., where an employee sought Alabama workers’ compensation benefits in state court for alleged injuries he sustained while painting in a dry dock on the coast. The employee also filed tort actions for retaliatory discharge and fraud based on a co-employee’s handling of the claim.

The employee recognized that the LHWCA prohibits tort claims against an employer in state court if the basis of the tort is within the scope of the LHWCA. However, the employee cited a narrow exception that allows such actions in state court when the employer intended to harm the employee. The employee further contended that the LHWCA remedies for retaliatory discharge would be inadequate when compared to state law remedies, which allowed for punitive damages.

The trial court dismissed the fraud and retaliatory discharge claims, agreeing with U.S. Coatings that the tort claims were preempted by the exclusivity provisions of the LHWCA.

On appeal, the Supreme Court recognized that there existed a "twilight zone" of concurrent jurisdiction between the LHWCA and the Alabama Act, wherein the location of a work accident provides the employee the option to pursue benefits under federal or state law. In doing so, the Supreme Court also recognized that state law would be preempted by federal law, if the laws were in conflict.

The Court identified a clear conflict between the LHWCA, which prohibits lawsuits against a co-employee, and Alabama common law, which allows for them. Because of this conflict, the Court held that the state law was preempted by the Federal law. The Court further held that U.S. Coatings did not intend to harm the employee, so the action did not fall within the exception. As a result, the Court affirmed the dismissal of the fraud claim.

As for the retaliatory discharge claim, the Court recognized that both the Alabama Act and the LHWCA provided relief for employees who are fired for claiming workers’ compensation benefits, and therefore, the laws were not in conflict. The Court did note that Alabama provides for punitive damages in retaliatory discharge actions, but that the LHWCA does not. However, this discrepancy in potential remedies did not create a conflict between the substantive causes of action. The Court held that the legislative history and interpretation of the LHWCA supports the notion that the federal law shall supplement state law, if possible, and if no conflict exists between the laws, the employee may pursue the action under state law. As a result, the Court held that the employee’s retaliatory discharge claim brought under state law should not have been dismissed and remanded the case back to the trial court.

My Two Cents:

The Alabama Supreme Court made it clear that a work related accident occurring in the twilight zone of concurrent jurisdiction between the LHWCA and the Alabama Act may be compensated by either set of laws. The restriction that the Court enforced supports the long standing preemptive theory, whereby federal law will trump state law when they are in actual conflict. Interestingly, as held in this case, a significant discrepancy in the potential remedies available to an employee will not result in a conflict between a state law and a federal law which address the same cause of action.

________________________

About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

John Machiaverna worked for the City of Newark as a firefighter since 1988.  He filed a workers’ compensation claim for his left knee in 2008, alleging that repeated work stressors over many years caused extensive knee problems and a need for knee replacement surgery in May 2007.  He contended that his knee problems were due to regular climbing of extension ladders and stairs, crawling through buildings and carrying people out of buildings. The City denied the claim and put petitioner to his proofs.

            During the testimony at trial, petitioner was asked if he had ever suffered any injuries in his work career. He testified that he had no previous injuries to his knee or hip.  That testimony fell apart on further questioning.  He then admitted that he injured himself in 2002 when a piece of sheetrock gave way during a fire, causing injury to his left leg. He next admitted on cross examination that he had arthroscopic surgery on his left knee in April 2002.

            The petitioner was seen by four IME doctors, two for each side.  The Court noted that he “lied to all four doctors who examined him because he failed to disclose his prior left knee injuries.” The Judge also commented that he initially failed to admit to having prior knee surgery in April 2002 and failed to admit two incidents in 2001.  The IME doctors testified in court, and their testimony was critical in proving fraud.

  Dr. Canario for respondent said that petitioner had not told him about a previous surgery to his left knee in 2002. In the opinion of Dr. Canario, petitioner’s size and weight were major factors in his knee problems.  Petitioner was six foot five inches tall and weighed 345 pounds.  Dr. Wong for petitioner stated in testimony that petitioner had not told her about his 2002 knee surgery.  Dr. Kulkarni for petitioner also said that petitioner had not told him about three prior knee injuries. 

The Honorable Theresa Yang, Judge of Compensation, found that petitioner was not a credible witness.  She held that in concealing his prior knee injuries and surgery, petitioner committed fraud as defined by the New Jersey Fraud Act, N.J.S.A. 34:15-57.4 She therefore dismissed the case.

On appeal, petitioner argued that his due process rights had been violated because he was “deprived of the opportunity to defend himself against the court’s allegations of fraud.” The Appellate Division categorically rejected that position.  “There was sufficient evidence to support Judge Yang’s credibility assessments and her determination that a violation ofN.J.S.A. 34:15-57.4 (c) (1) had occurred.”  The Appellate Division held that petitioner failed to prove an occupational claim. 

This case is important because it shows that Judges of Compensation are following the statutory law under the New Jersey Fraud Act.  It is not necessary for an employer to prove a claimant was working while on temporary disability benefits to establish fraud.  That is just one issue in a fraud case.  If a claimant deliberately misrepresents or conceals prior medical information that is relevant to the claim, that in itself constitutes fraud.  The case also shows how important it is for defense counsel to get prior records, whether attacking credibility or attempting to prove fraud.

On July 19, 2013, the Alabama Court of Civil Appeals released its opinion in Gore v. Lafarge North America, Inc. wherein it addressed the trial judge’s ability to assign a disability rating that is lower than the impairment rating issued by the authorized treating physician. In Alabama, a judge is not limited by the impairment rating when assigning a disability rating. Although it is common for trial judges to use the impairment rating assigned by the doctor as a minimum, it is unusual to see a disability rating that is lower than the impairment rating.

In Gore, the plaintiff claimed that he was permanently and totaling disabled as a result of rocks falling on him while at work injuring his neck and other parts of his body. Initial treatment provided by the employer did not reveal any injuries and the plaintiff was returned to work at light duty and given pain medication. The plaintiff then went to see his own doctor but did not indicate he had treated with the employer’s doctor. As a result, the plaintiff secured pain mediation from both doctors which was an obvious credibility issue. Discovery later revealed that, prior to the accident, the plaintiff had been off of work for other injuries, including his neck, and was receiving narcotic pain medication up to 4 days prior to the alleged accident. During that period of time he was also off work as a result of being convicted for doctor shopping to secure multiple prescriptions for Xanax. The evidence at trial also revealed that the plaintiff was not truthful in regards to prior neck problems. The plaintiff testified that he never had prior neck pain but his supervisor testified that the plaintiff had been off work, or unable to perform his work, on numerous occasions complaining about his neck, back, shoulder and foot. Medical records also revealed prior medical treatment for back and neck pain. The plaintiff ultimately underwent surgery performed by the authorized treating physician to remove several disk and bone spurs as a result of arthritis at almost every level and a pinched nerve. The initial fusion was unsuccessful and a revision was performed. He was ultimately placed at MMI with light duty restrictions and given a 20% impairment rating to the body. The authorized treating physician testified that, based on the provided history, the accident did cause the pinched nerve, however, it was very challenging to separate degenerative from acute.

The trial Court found that the plaintiff was suffering from similar symptoms prior to the accident evidenced by short term disability 3 times over a 5 year period and narcotic pain medication as recently as 2 months before the accident. The trial Court also questioned the plaintiff’s credibility based on inconsistent testimony regarding prior injuries and his criminal convictions for DUI in the past and the conviction for doctor shopping. The trial Court found that the plaintiff proved that he had an on the job injury but found that it only resulted in a permanent partial disability. The trial Court opined that the plaintiff’s past medical condition accounted for some of the disability and the degenerative conditions could have resulted in the current injuries and/or need for treatment. As a resulted, the judge reduced the doctor’s 20% impairment rating to a 10% disability rating to account for the preexisting condition causing some of the current disability and not the on the job accident.

On appeal the plaintiff argued that the preexisting condition should not have been considered because he was performing his job normally at the time of the accident. He argued that because the accident was one factor of the disability he met his burden of proof since the accident did not have to be the sole cause of the permanent and total disability. The Alabama Court of Civil Appeals agreed that this met the standard for medical causation but stated that the extent that the accident contributed to the disability was the issue. The Appeals Court stated that the preexisting neck injury was not latent or asymptomatic and, therefore, the preexisting condition was the cause of a portion of the disability and was in fact affecting his ability to work at times prior to the accident. The Court of Appeals ruled that the evidenced supported the Trial Court’s finding that a portion of the 20% disability issued by the doctor was not the result of the accident but was the result of the preexisting degenerative condition.

Of note, the Court of Appeals stated that the evidence was sufficient to deny benefits altogether because of the plaintiff’s inability to work on various occasions leading up to the accident but the employer did not cross appeal that issue.

The Court of Appeals remanded the case to the trial Court for a determination on whether the plaintiff suffered any loss of ability to earn because he had not been able to return to work following his injuries.

My Two Cents

: Just because the preexisting condition does not prevent the employee from performing his job prior to the accident do not ignore it. If the preexisting condition is causing, or partially causing, the disability complained of, the Judge can attribute some of the disability to the preexisting condition, and reduce the disability attributed to the work injury.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

Bobby Robinson was injured working at a construction site in Asbury Park, N.J. when a jack hammer “kicked back” and knocked him off a ladder in December 2006.  He filed two workers’ compensation petitions:  one against Tishman Construction Corporation and the other against Air Joy Heating and Cooling, Inc.  The two companies asserted joint responsibility for workers’ compensation benefits and an order approving settlement was entered in the Division of Workers’ Compensation.

            During the receipt of workers’ compensation benefits, Robinson also brought a civil suit against Tishman Construction Corporation (hereinafter “Tishman”).  Tishman filed an answer to the complaint contending that Robinson’s suit was barred by the exclusive remedy provision of N.J.S.A. 34:15-8, which prohibits civil suits against employers except in the case of intentional harm.  The question before the court was whether Tishman was in fact Robinson’s employer.

            The construction site in Asbury Park was owned by Paramount Homes, which wanted to build three residential units on its property.  Paramount contracted with Tishman to provide administrative and supervisory staff for the site and to monitor labor levels and equipments as well as manage trade contractors.  Tishman then entered into a contract with Air Joy as the HVAC subcontractor for the site.

            Air Joy’s job was to install exhaust vents by cutting out duct openings in the exterior walls.  However, Air Joy could not use its own employees to do this.  The Local 595 Laborers Union (Local 595) claimed this project, and since Air Joy did not have any contract with the Union it could not hire union employees directly.  Air Joy relied on Tishman to do this because Tishman was a signatory to the labor union.  Air Joy would tell Tishman’s construction superintendent how many laborers were needed, and then Tishman would provide the laborers through the union.

            Robinson was told to report to the construction site in August 2006.  He reported to Kenny, the Air Joy foreman.  Robinson said that while on the site Air Joy employees directed his work.  However, he submitted his time sheets to Tishman’s labor foreman.  Tishman employees gave the final sign-off on the time sheets before sending them to payroll.  Tishman paid Robinson directly and then charged Air Joy back for his wages.  The payor on the checks was Tishman.  Before he received a paycheck, Robinson would have to show his Social Security card and driver’s license to the appropriate individual at Tishman. 

            Tishman’s project foreman testified that Robinson worked for Air Joy on loan from Tishman.  Tishman’s project foreman patrolled the site for safety issues and checked on employees.  Tishman retained the right to fire union workers and had exercised such power in the past.  When Robinson was injured, a Tishman employee called the ambulance that took him to the hospital, and Tishman filled out the accident investigation report.

            The trial court found that Tishman was Robinson’s general employer and Air Joy was its special employer.  That gave both companies immunity from civil suit.  The Court of Appeals affirmed that decision, noting that both companies shared in responsibility for the workers’ compensation claim. The Court said that it was clear that Tishman was a general employer. “There was an implied contract of hire based upon the fact that plaintiff’s services were procured by Tishman through his union, he performed work, and was paid.  Tishman paid his wages.  Tishman had the right to control the work and the power to both hire and discharge him. Tishman was plaintiff’s employer and is entitled to the immunity provided by the Act.”

            This case shows that employers benefit from joint employer situations such as general and special employer relationships. Both the general and special employer are entitled to immunity from civil suit in the case of injury to a borrowed employee.  The case may be found at Robinson v. Tishman Construction Corp. of New Jersey, A-1370-11T4 (App. Div. June 28, 2013).

For all injuries occurring after July 1, 2013, the max comp rate is $691 and the min comp rate is $346.

Charlie Larson 605-336-2424; calarson@bgpw.com

Issue: When does a surveillance video need to be provided to Claimant’s attorney

Claimant sent Employer and Insurer interrogatories and requests for production asking to produce any surveillance evidence they had. Employer and Insurer objected to the request based on the work product doctrine and that the information sought was beyond the scope of discovery. The rule has been that surveillance must be turned over after the claimant’s deposition. However, employer and insurer refused to produce the surveillance after claimant’s deposition as they had not determined whether they would use the surveillance at hearing.

The department determined that surveillance materials were work product and not discoverable until the Employer and Insurer determine that it will use the surveillance, in any way, at hearing. The judge determined that if Employer and Insurer wanted to use the surveillance material at hearing, it must provide Claimant a copy of the materials at least 30 days prior to hearing. This is a change from previous rulings and will be interesting if the matter goes up on appeal.

Let me know if you have questions.  Charlie Larson (605) 336-2424 orcalarson@bgpw.com

The SD department handed down two more decisions where it ruled with the treating doctor on treatment recommendations.  It's nearly impossible to prove that treatment recommended by the treating doctor is not necessary, and most of the time it is not worth the fight.

Let me know if you have questions.  Charlie Larson (605) 336-2424 or calarson@bgpw.com 

This is an interesting decision regarding a parking lot case. Here, a husband came to his wife’s work during her morning break and shot and killed her in the parking lot. He then took his own life. It was undisputed that work had nothing to do with the martial conflicts they were having, yet a petition was filed because the murder took place on the employer premises. The department found the death did not arise out of the wife’s employment, the circuit court affirmed, and the SD Supreme Court also affirmed.

In order to arise out of the employment, the injury must have its origin in the hazard to which the employment exposed the employee. There are three possible categories to determine whether an injury has its origin (i.e. whether there is a causal connection) in the employment. These are: 1. Risks distinctly associated with the employee, which are always compensable. 2. Risks personal to the employee. These are generally non-compensable and defined as "risks so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment." 3. Neutral risks, which may be compensable under the positional risk doctrine.

Positional risk doctrine only applies in neutral risk situations. Positional risk involves situations where the only connection with the employment is that the work placed the employee at the particular place and time when he or she was injured by a neutral force (neither personal to the employee nor distinctly associated with the employment).

Under the positional risk doctrine, you apply the "but for" test: "An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured."

The HSBC case hinged on whether the death was from a neutral risk or a personal risk. The Court found the death arose from the personal risk (pressure from the pending divorce). "The positional risk doctrine requires that the risk must be one in which any other person then and there present would have met with irrespective of his employment." Since the husband would not have killed anyone but his wife, no other employee would have met with the same fate, and thus the positional risk doctrine did not apply.

Other assault cases may be compensable depending on the circumstances. For instance, fights between co-workers, when the employer brings the two employees together, the fight is about work, etc. Unfortunately, there is no bright-line rule and this will be fact specific in the future.

The claimant argued the employment contributed to the assault because the husband knew where she parked and the only time she was away from the kids was when she was at work (he wouldn’t have killed his wife in front of the kids). The court rejected this argument as the risk of assault must be increased by the employment. The Court said just because the wife was killed on the premises was not enough even if it provided the husband with the opportunity to kill her as the work did not have anything to do with the conflict between them.

The case also had a discussion about unexplained deaths, shifting presumptions and other legal mumbo jumbo. I’m not sure what significance this will have later on. I do not believe this case will have much bearing on future parking lot cases unless we can show that the injury was personal and not neutral. For instance, if someone trips in a pot hole in the parking lot, that’s a neutral risk because "but for" the work, the employee would not have been in that parking lot. However, if the employee’s knee simply gives out, that may be a personal risk and the "but for" test would not be used. The key will be how the department classifies the injury and risk.

If you have questions, please call me at 605-336-2424 or email me atcalarson@bgpw.com.  Thanks, Charlie Larson.

The words “fitness for duty” do not appear in the New Jersey Workers’ Compensation Act, but the issue is of paramount importance to employers and employees in many workers’ compensation cases.  In New Jersey the need a fitness exam is often compelling because medical and temporary disability benefits end at maximal medical improvement often without any comment from the treating physician about whether the employee can return to work.  When workers’ compensation benefits end, the focus often turns next to whether the employee can return to work and perform the essential job functions.  This is not for the Judge of Compensation to decide in New Jersey.

            When can an employer require a fitness-for-duty examination in a workers’ compensation setting?  Practitioners must differentiate between employees who are out of work and employees who are working.  When an employee seeks to return to work following a workers’ compensation absence and there are restrictions imposed by the treating doctor, a fitness-for-duty exam is appropriate.  In fact, New Jersey physicians often seek guidance from FCEs, functional capacity examinations.  In contrast, when an employee with a workers’ compensation claim is working, an employer cannot request a fitness exam absent a business reason. A medical evaluation of an employee can be required by an employer under the Americans with Disabilities Act and under state disability law under certain circumstances. The ADA standard is “job related and consistent with business necessity.” 42U.S.C. 12112(d)(4). 

            It is important to appreciate differences between the New Jersey Workers’ Compensation Act and laws in other states.  Many states have a requirement for vocational rehabilitation. New Jersey does not.  Awards for partial permanent disability in New Jersey are not generally dependent on how long an employee has been out of work but on the level of functional loss in the injured body member.  New Jersey compensation law does not provide job protection, except against retaliation for filing a workers’ compensation claim.  Temporary disability benefits and medical benefits end at maximal medical improvement in New Jersey.  Whether the employee returns to work may not matter all that much as far as the outcome of a workers’ compensation claim but it matters to the employee and employer for obvious reasons.

            Workers’ compensation cases suddenly merge into labor law at the return to work stage.  It is outside the power of a Judge of Compensation to order an employer to return an employee to work.  However, employees have rights under the Americans with Disabilities Act, the Family and Medical Leave Act, and the New Jersey Law Against Discrimination that impact on return-to-work status.  Many workers’ compensation claimants are covered under the ADA and NJLAD but these laws do not automatically mean the employee must be reinstated.  An employee with a disability must be able to perform the essential functions of the job with or without reasonable accommodation. 

            How then do employers decide whether an employee who has been out of work  with a serious injury is fit for duty?  Medical and legal guidance is crucial.  From a medical vantage point, employers can reach out to treating doctors, occupational physicians or physiatrists for advice on fitness for duty.  As mentioned above, FCEs are a wonderful tool that provide objective and scientific information about ability to perform essential functions. For this reason, treating doctors routinely ask for FCEs before giving opinions on restrictions and ability to perform job duties.   From a legal standpoint, it is important to consider the application of disability and leave laws that may apply.

            Here are some common traps that employers fall into in fitness assessments:

            * The Ambivalent Treating Doctor Syndrome

            Quite often the treating doctor imposes serious job restrictions that carry on for many months.  There may be severe restrictions against lifting, bending, reaching and performing other physical functions. Light duty may be offered. After maximal medical improvement is reached and compensation benefits end, the employee will often contact the employer to return to work. When the employer expresses concerns about the medical restrictions, a short note may suddenly appear from the treating doctorremoving all restrictions.  This stunning turn of events leaves employers shaking their heads. 

            * The “Wing It” Return-To-Work Note

            New Jersey is blessed with highly skilled surgeons in the workers’ compensation arena.  However, surgeons are not always the best choice when it comes to deciding whether the employee can do a particularly difficult job.  A good fitness-for-duty examination requires time, information and medical expertise.  The job description must be read and considered, and the physician must speak with the employee about job duties.  In addition, FCEs should be analyzed to see that the testing reflects the actual job duties to be performed.  Cryptic medical notes following a serious surgery stating, “Bill may return to work full duty” without analysis or any indication that job description has been analyzed are more often than not “wing-it” notes.  There are risks to the employee who is returned to a job that he or she cannot safely perform, and a well intentioned “wing-it” note can do more harm than good.

            * Reflexively Turning to Treating Doctors

            When it comes to assessing fitness for duty, the best choice is generally an occupational physician or physiatrist who specializes in this area of medicine and has an understanding of reasonable accommodation requirements. These experts often have training in biomechanics and are willing to expend the time it takes to fully appreciate the job duties and consider possible accommodations. There is simply no substitute for thorough analysis. The idea that fitness assessment is as simple as scribbling on a note pad could not be further from the truth.  Yet all practitioners continue to see treating doctors hurriedly write “full duty” without any analysis at all of the job requirements or previous restrictions.

            * Asking the Comp Adjuster Whether the Employer Must Reinstate

            This is also a very common mistake that employers make in New Jersey.  The reason this happens is that many employers erroneously think that return-to-work issues are decided in comp court.  Almost every adjuster has been asked more than once for advice from an employer on whether the employer can terminate or must reinstate.  This is a complex medical/legal inquiry with significant labor law implications that should be put to house counsel or outside counsel for guidance. 

            Developing a return-to-work team is the best solution. There is an important role on this team for counsel, HR managers, claims professionals, supervisors, nurse case managers, and medical experts.  It is a fact of life that many employees post-injury cannot return to their former job while many others can and should be reinstated.  The process is complex but can be handled effectively with a consistent and comprehensive approach.