Case Study : Workers' Compensation

How Much Can An Employer Modify A Job?

Modified Return to Work

Elijah was an over-the-road driver for a major furniture company. He traveled all over the United States delivering truckloads of furniture. Although not at every stop Elijah often had to assist with the unloading. Elijah made excellent money despite the fact that he had only a GED.

Elijah twisted his knee and tore the cartilage in it requiring a surgical repair. Broadspire authorized this and the surgery went fairly well. A couple of months after the surgery Elijah’s doctor ordered a Functional Capacities Evaluation. Elijah gave full effort in his FCE and was released to return to work with a medium work load. The doctor clarified this to limit Elijah’s lifting to nothing over 50 pounds, and no bending, stooping, or squatting. Importantly, the doctor limited Elijah to sitting no more than 5-6 hours per day total. Additionally he noted that Elijah had problems with his knee stiffening up on him within a fairly short period of time – as little as an hour.

Broadspire notified Elijah that his employer had a new opening for a truck driver that would be a no touch position, no unloading freight ever. Obviously this addressed the issue of Elijah not lifting over 50 pounds. We looked at this position very carefully and it did seem to be a legitimate position. The employer was able to explain that this was the first of a several new positions which would be no touch. So we were satisfied that it was a real job. However there were two other problems with the job.

First, in order to do a proper DOT pre-trip inspection a driver is supposed to look under vehicle to inspect the brakes, wheels and rims, axle, transmission, and rear end. While it was hypothetically possible to do this without bending, stooping, or squatting no one could remember seeing any truck driver ever gently lie down on a creeper and roll around on his back to do the inspection. Yet that was precisely what Broadspire suggested that Elijah do. In fact Broadspire hired a vocational “expert” to testify to exactly that!

Second, Elijah was limited to sitting for no more than five or six hours per day. Yet this driving job, like virtually all over-the-road jobs called for eleven hours of driving over the course of a fourteen hour day. Broadspire’s “expert” got Elijah’s doctor to clear him to drive a truck so long as it was not more that six hours per day.

It was at this point that the interests of the employer and the insurance company separated. Broadspire was paying Elijah the maximum compensation rate and Elijah lived in a rural part of North Carolina. There was little other work around and absolutely nothing Elijah could do in a comparable pay grade. So if Broadspire couldn’t get Elijah back to work at his employer they would be paying benefits to him for a long, long time.

The employer, like most employers, was more than willing to pay Elijah good money as long as Elijah was able to give them a full honest day’s work. For several years he had been able to do that. The employer did not want to – and no offense to Elijah – pay him full salary to work half-time. And they didn’t want to keep a very expensive truck idling around truck stops all over the country.

Broadspire hired an attorney to take Elijah to a hearing before the Industrial Commission. We successfully convinced the Industrial Commission that the modifications which Broadspire claimed the employer could make were so drastic that the no other trucking company would ever offer Elijah the same deal. As such the modified job was not a “real job” which would be available in the competitive labor market. The Industrial Commission agreed.

How much can an employer modify a job for you to return to? What happens when the insurance company’s interests are different than your employer’s interests? How does a truck driver do a pre-trip inspection with a bum knee? Why is it important for your doctor to really understand what your job requires?

Lessons to be applied…

  • The insurance company’s goal is to stop paying you weekly checks.
  • Your employer is willing to pay you weekly checks if they can get get a week’s worth of work from you. In the long run they probably won’t like paying you to do just “be there.”
  • If there are particular parts of yoru job which are unusual it is important that your doctor understands these. In Elijah’s case he couldn’t very well get out of his truck every ten minutes to stretch out his leg – and he needed that leg to use the brake and gas pedals safely.
  • Sometimes the expert hired by the insurance company knows what the “answer” is supposed to be and tries to make the facts fit that answer. It takes a lot of work to prevent them from succeeding.