2012 will be the major year for “Return to Work” (RTW) discussions in New York. A major decision on RTW will be coming from the Court of Appeals in early spring. (Zamora v NY Neurologic is set for argument on February 15, 2012.)
The Zamora decision is expected to resolve many of the claims involving voluntary withdrawal from work, but only on those claims where there were no valid offers by the employer. The case will most likely deal with people who have made little demonstrable effort to return to work, even though the employer has made no offers.
It is no exaggeration to say that an offer by the employer is 99% of the battle in RTW. The employer, alone among the nearly 100,000 employers in New York, knows the injured worker, the former job duties and the best fit for a sllight modification which would permit, at least, a trial RTW effort. Where employees are left to search on their own, among strangers offering strange jobs, the chances of success are slim.
How much different the interactions are when the employer is directly involved. All parties, carriers/TPA, lawyers and the Board included, are much more likely to get a detailed description of the efforts when the employer is the entity making the offer. All other employers are outsiders in the claim and what they offer or why they refuse is information obtained only after great effort, if ever obtained at all.
The real message of the coming decision will be that an employer who chooses not to be active in the RTW process will be missing the greatest single cost containment tool they possess – the ability to assist (not necessarily guarantee) the effort to return the worker to a job.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
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