When offering modified duty to a workers in West Virginia, Attorneys Denise Klug and Aimee Stern, authorities on the subject from the highly regarded law firm of Dinsmore & Shohl, have counseled employers’ on workers’ compensation matters for many years. Attorneys Klug and Stern offer the following pointers on developing a modified duty job offer letter in West Virginia.
1-The employer should have a specific, written policy governing the modified duty program. At a minimum, this policy should explain whether the modified duty assignment is temporary, the duration of the assignment, the eligibility criteria for participation, and the duties and responsibilities of the claimant and the employer. The policy should also clearly state that it is not intended to deprive a claimant from seeking recourse under any applicable federal or state law.
2-It is recommended that employers keep up-to-date job descriptions, including physical demand guidelines, for all positions. This will help the employer, the claimant, and the claimant’s physician make prompt, informed decisions about modified duty possibilities.
3-Obviously, a claimant must be released to return to modified duty by his treating physician before modified duty can be offered.
4-The employer should obtain a clear description of the claimant’s physical capabilities. The description should identify what the claimant can do, as well as, what the claimant cannot do.
5-A detailed job description which includes the claimant’s physical restrictions should be developed.
6-It is a good practice to submit the modified duty offer to the claimant’s physician, prior to making the offer to the claimant, for the physician’s approval.
7-Modified duty can be part-time or full-time, and can be at reduced wages.
8-The employer will determine the value of the claimant’s modified duty tasks and pay him or her accordingly. The claimant may be eligible for temporary partial rehabilitation benefit, in an amount equal to 70% of the difference between the claimant’s pre-injury and modified duty wages.
9-Once a claimant is assigned to a light duty position, the employer should monitor the claimant’s progress regularly. It is important to make sure that the claimant, his or her supervisor, and his or her coworkers are all abiding by the physical restrictions placed on the claimant.
10-There is no mandatory time limit for modified duty.
Note: Employers should be aware that the 2008 amendments to the W. Va. Worker’s Compensation Act require the Insurance Commissioner to propose rules addressing a claimant’s trial return to work following a compensable injury. These rules have not yet been promulgated; however, when they are, employers will need to be aware of any changes the rules make to this area of the law.
About the authors
Denise D. Klug is a partner in the Litigation Department of Dinsmore & Shohl, LLP. Denise represents companies in the chemical, hospital, steel, trucking and numerous other industries in Ohio and W. Virginia. Denise counsels clients on violations of specific safety requirements, State Fund issues, premium discounts and establishing Drug Free Work Place Programs. She can be reached at denise.klug@dinslaw.com or 304-230-1700.
Aimee M. Stern is a member of the Litigation Department of Dinsmore & Shohl, LLP with an emphasis on toxic torts, medical malpractice and workers’ compensation. She can be reached at aimee.stern@dinslaw.com or 304-230-1603.
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