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When Your Primary Physician Calls for Your Return to Work, but Worker’s Comp Insurer Says ‘Not Yet’

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Worker’s Compensation protects you…even from your own Doctor

Worker’s Compensation allows an injured worker who sustains a work-related injury or illness is entitled to receive certain assistances, including Medical Benefits, Temporary Total Benefits, Permanent Partial Benefits, Permanent Total Benefits – regardless of fault.

Why?

Established in the early 1900s, the goal has been to provide a way to protect workers injured in the course of their work through medical care and partial wage replacement. This also protected employers from unpredictable or even fraudulent lawsuits based on civil liability like negligence.

If you require medical treatment your employer, or its insurance carrier, has the legal right to select the physician or medical facility that will treat your work-related injury or illness, although that right is not exclusive.

As a worker, do not feel intimidated; it is against the law for an employer to retaliate, discriminate, or discharge an employee for seeking workers’-compensation benefits. If you feel medical treatment, including physical therapy, was prematurely ended you may be able to have the medical treatment restored.

Replacing Your Physician to Get WC Benefits

Any doctor (including your HMO physician) can refer you to a Specialist, if they feel that your medical condition requires it. Any doctor can also administer tests to tell if you are “really” injured or not, whether you are manifesting legitimate complaints or simply malingering to stay off work.

AMA has guides for virtually every diagnosis, and every job classification (from sedentary to very strenuous) and doctors know how long it should take for a simple back strain to resolve and when a person is medically fit to return to work, based on the kind of work they do.

“Doctor shopping” or going to a new doctor to get a more favorable diagnosis is often unacceptable in the eyes of the law.

Your attorney

Your employer’s policies dictate when you should be at work and if you can be fired for not showing up. In addition, it is important, to know what you are trying to achieve: Do you want sick leave? Do you want disability pay? Do you just want some time off (unpaid)?

Your employer’s policy for leave or paid leave should state what needs to happen for you to remain on leave. Refer to any and all information within your employee handbook or elsewhere which lists leave requirements. Also, if you are in a union, explore the situation with them and list their requirements within your bargaining agreement. Please note that company policies often state that to get legal full paid leave, you must not be able to perform any job within their company.

Similarly, disability insurance may be written to pay if your own job cannot be performed only, but if you can perform another position – that may disqualify.

If Your Physician Won’t, Ask Your Employer

If you are out of sick leave or do not qualify for paid leave, you can ask your employer for unpaid time off of up to 12 weeks under the Family Medical Leave Act (FMLA). FMLA has pretty clear rules for qualification. You or a family member must have a serious medical condition.

An employer can say that your request for leave based on your serious health condition requires a certificate issued by a health care provider. They must allow you 15 calendar days to get the medical certification. The certificate includes a description of the serious health condition, the date that the condition began or treatment became necessary and the expected duration of the condition or treatment. You will have to sign for the release of medical information for health providers to share with the employer and vice versa.

They can also make you get a second medical certification from a health care provider and pick the second health care provider ( the “company doctor” does not qualify). If these opinions are different, the employer can demand a third opinion (the employer pays). The third opinion is final and binding. You and the employer must agree on the doctor.

If the employer asks for it and you don’t provide the medical certification, your absence is not protected by law. This means unless you have another type of arrangement – like a contract or union agreement, your employer can fire you if you do not go back to work when they want you.

Pain is not disabling

Unless it is super serious, you may want to consider attempting to return to work before deciding that you cannot work. You then may be able to articulate the specific tasks that you cannot do, so that either your original tasks can be modified, or treatments like physical therapy can be prescribed to help in your recovery.

While difficult to answer, a general rule: not returning to work assuming the worker’s compensation insurer acknowledges the doctor imposing the no-work order is the treating doctor for purposes of the worker’s compensation injury. Assuming those facts then the worker’s compensation insurer would be required to pay, what is considered in the worker’s compensation system, a Temporary Total Disability.

Sources

United States Department of Labor

Workers Compensation FAQs – Workers Comp Accident Attorney NJ

New Jersey Workers compensation lawyer | Elizabeth Workers Comp Attorney

Remi Alli, JD, MS has worked for publications such as Forbes and Investopedia, and in her work with Brāv, the premier online platform to manage conflicts (www.brav.org), has been featured in such journals including U.S. News and World Report, MONEY, TIME, The Huffington Post and Yahoo! She is a double award winning techie and a three-time award-winning writer, with her most recent: a national legal award.

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