Will An Injured Worker be Paid to Work Transitional Duty at a Not-for-Profit?
An Illinois company does not have any modified positions available to bring the worker back to transitional duty with his restrictions. However, there is a not-for-profit organization the company is working with to place the injured worker while he is recovering from his work-related injury and transitioning back to full time duties. What are the companies options?
#1: Company pays the worker his regular wages while he is back to transitional work at the not-for-profit.
#2: Company pays the worker his regular wages while he is back to transitional work at the not-for-profit and his risk sharing pool reimburses the company for the wages paid.
#3: TPA/Risk sharing pool pays the worker temporary total disability (TTD) benefits while he is back to transitional work at the not-for-profit.
Discussion of Options:
Option 1 is an acceptable approach, but if the company refuses to pay wages while the worker is working at the not-for-profit, are Options 2 and 3 viable alternatives to get the employee into transitional duty?
In Illinois there remains the duty to pay “maintenance” (same rate as the TTD) while someone with permanent restrictions is in “vocational rehabilitation.” Vocational rehabilitation normally takes the form of permanent job placement assistance. Maintenance benefits are payable at the TTD rate during a worker’s compliance with the job search efforts.
The Illinois Workers’ Compensation Act and prior court decisions following National Tea provide that if the labor market is such that a person of like qualifications with permanent restrictions would be able to secure their own employment on his or her own efforts, then there is no duty to place or vocationally rehabilitate or pay maintenance. Usually the claimant must enter into a diligent but unsuccessful a job search effort before the duty for placement shifts to the employer to show they are employable. The duty to provide vocational assistance with permanent placement exists only when the employer has no permanent work available within the restrictions and where there is an actual likelihood of successful job placement.
Assuming this worker is eligible for vocational placement assistance because of the high probability he will not find work without professional assistance, the normal approach would be Option 3 where the TPA, Risk Pool, continues to pay the “maintenance” benefits while waiting on the permanent placement. Working with the not-for- profit group while seeking permanent employment certainly can qualify for the continued maintenance benefits.
However, it is more effective to cut to the chase on claimants who have no job to go back to. Most injured claimants are employable in some capacity but there is no guarantee the worker will find work, that the job market for the injured worker will remain stable or the new job provide enough wages to avoid a wage differential claim. And, at any rate, a claimant can certainly sabotage the job placement efforts or even a new job position.
A professional rehabilitation expert can usually provide a report on the likelihood of re-employment and an expected rate of pay, as well as the expected duration of the job search. If at all possible, try to close these claims out at this point by providing a permanency settlement, several months of “maintenance” to accomplish a job search (say 3 to 5 months depending on severity of restrictions) and with a portion of the funds, (say $5,000) provide for professional job placement assistance.
Employees have a much greater personal motivation to save money and find employment quickly if their own settlement money at risk of diminishing. It would be to the employer’s benefit to find someone who can accurately assess the employee’s placement and earnings potential and advise on placement of a motivated claimant.
If however, we are talking of purely “transitional employment” because the claimant has not yet reached maximum medical improvement (MMI) nor reached permanent restrictions, only Option 1 or 2 are really available — having the company pay his regular wages while the worker is “assigned” to work at the not-for-profit.
An employer can continue to pay TTD benefits while waiting for permanent restrictions for a return to work at the company or at other permanent job placement but there is no real duty under Illinois case law for Option 3 — no duty for an employee to work a temporary job assignment with someone other than the employer while recovering and on TTD(temporary total disability).
The only real way to force the worker to attend work at the not-for-profit is under Option 1 or 2. Otherwise, it is not really enforceable. Workers are entitled to TTD benefits as long as they are medically unable to do their regular job and while no light duty “transitional” employment is available with their employer. There exists no duty under Illinois workers’ compensation for the worker to take on a temporary job assignment of alternate employment with the not-for-profit organization while still recovering from work injuries. Employers offering light duty can certainly assign their workers to report to work wherever they want and that would include assigning them to work at the not-for-profit organization. Since the employer is not receiving the benefits of the employees’ labors, they may insist on reimbursement under Option 2.
If possible, it might be wise to provide a work hardening program and an Functional Capacity Evaluation (FCE) to obtain permanent restrictions but the treating doctor may not accommodate those efforts or the natural recovery time from the injury may preclude the use of work hardening and an FCE.
Providing the worker with the temporary job assignment at the not-for-profit organization may provide the worker with a much greater motivation to get released to return to regular work rather than the other alternative of getting paid TTD benefits while sipping lemonade at back yard barbeques.
Author: Brad Bleakney of Bleakney & Troiani in Chicago, IL practices in the areas of work-related injury claims third party litigation for accidental work injuries. He has a background in industry where he helped a Fortune 500 company reduce their workers’ compensation losses significantly. Brad can be reached at: Brad Bleakney, Bleakney & Troiani, 1 North Franklin (2625) Chicago, IL 60606 312-541-0045 or fax 312-541-0041 info@WorkComp-Chicago.com
Read Brad’s Blog at: http://workcomp-chicago.blogspot.com/
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
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