Entitlement to Temporary Disability Payments When Employer Fails to Adequately Communicate Offer of Modified Work

By Alvaro Lizarraga

Understanding Temporary Disability Payments

Generally, when a worker suffers a work-related injury, and temporary work restrictions are provided by their doctor, the employer must act in good faith and seek to accommodate the work restrictions. The worker is considered to be temporarily partially disabled, and is expected to work during their partial disability, if suitable work is available. 

However, if the employer is unable to accommodate the work restrictions, and the claim is accepted, the worker would be entitled to receive temporary total disability payments. A temporary disability payment is a salary replacement benefit.

A teacher is asked by her employee for a modified work offer

 

Employer’s Duty to Offer Modified Work

In situations where the employer claims to provide modified work that complies with the work restrictions provided by either the worker’s treating physician or a qualified medical examiner, the question becomes, was the work offer adequately communicated to the injured worker?

The California Supreme Court has made it clear that the burden of proof is on the employer to show that work within the capabilities of the partially disabled employee is available, and if the employer does not make this showing, the employee is entitled to temporary disability payments. Further, the employer must explain how the job was modified to accommodate the worker’s health condition. 

A communication by the employer can be done in writing, verbally or both but it must explain how the modified work offered by them is “in line” with work restrictions provided by the physician and worker’s health condition.

Common Issues with Modified Work Offers

It is very common for employers to provide modified work offers; however, issues arise when the work offer is generic, vague and not adequately communicated to the worker. For instance, a warehouse worker might be provided work restrictions of “no lifting, pushing or pulling over 10 lbs., no repetitive head bending and no overhead work,” and the employer claims to offer and provide modified work that lists the work as, “worker to sit behind a desk, to sort and file documents, and review and update data.” 

An employer asks an employee for modified work

 

On the surface, this appears to be light work that a warehouse worker with restrictions should be able to perform. However, this would not be adequate communication as the employer does not explain how the job was modified to accommodate the worker’s health condition considering the work restrictions. As a result, the worker would qualify for temporary disability benefits.

Ensuring Clear Communication on Modified Work

Therefore, it’s important to review the work restriction provided to the worker, and if the employer claims to offer modified work, examine the offer and make certain that it was adequately communicated by the employer. Unfortunately, employers routinely get away with not following the law and workers go without receiving temporary disability payments.

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