January 1, 1900

By Kenneth W. Thayer

In all workers’ compensation matters there comes a time when the medical treatment provided to the injured employee will cease and the employee will be expected to return to his/her position within the company. Up until this point, medical treatment has been under the control of the employer. New Jersey State Statute 34:15-15 states “the employer shall furnish to the injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury to restore the functions of the injured member or organ where such restoration is possible”. In most workers’ compensation cases, the end stage of treatment will result in a medical plateau where the injured worker has reached a state of maximum medical improvement (MMI). Most times the employee is not completely cured, but the condition has been treated to the point at which the functional loss of the injury has either stopped progressing or has in fact reversed, and the employee has made medical progress. “Functional loss” or “partial permanent disability” is defined as a restriction of the body or of its members or organs, which shown through objective medical evidence, produces a lessening to a material degree of the employee’s working ability. (See, N.J.S.A. 34:15:36). At this point, the authorized treating medical providers may return the employee back to work. A question is then presented to the employer: will the employee be able to return to the same type of work he or she once performed prior to the work place injury?

The treating medical provider may release the employee back to work full duty or some form of modified duty. The medical provider may even release the employee back to work but continue medical care such as continued physical therapy or subsequent periodic office visits. The problem facing the employer is what to do with an employee, who may have been returned to work but have returned on modified duty or require additional time off to continue subsequent medical treatment as directed by the authorized medical provider.

The obligation of the employer to provide monetary temporary disability benefits ends regardless of whether the employee is returned to work at full, medium or light duty. The ability to terminate temporary disability benefits is not a product of statute but is found in New Jersey case law. A light duty return to work is termed as a “bridge or modified duty phase” in which the injured worker is eased back into the work force. Depending upon the level of labor intensity of the employee’s position, the employer may decide to request that a functional capacity test be performed. A functional capacity test is a valuable tool to determine whether modified duty will be within the physical capacity of the employee. It is important to the employer to determine the extent of the returning employee’s functional loss. This is important to ensure the employee is able to perform his duties, limit the exposure of possible re-injury and ensure the safety of co-employees. The results of the test are to be used as a guide as to whether the employee should be returned to work at this time or provided with additional rest and medical treatment.

Rushing an employee back to work might be beneficial to the employer in the short term, however, if a re-injury occurs, the money that has been expended on medical treatment and the rehabilitation gained will be for naught. The old saying of penny wise pound foolish comes into play. It is best to ensure the employee can safely perform the duties requested of his/her position before returning the employee to that position. It may be in the best interest of the employee to create a new position for the returning employee to facilitate their acclamation back to work. This new position would be a temporary position. The creation of the temporary position shows the employee that their services are appreciated and that the employer wishes them a speedy recovery. Once again this may provide less productivity in the short run however is an effective way to retain valuable employees.

The employer may also make reasonable accommodations for the returning employee, such as desk/work station adjustments, a convenient parking spot or adjustment of start and end work times. Such accommodations help ensure that the employee is able to return without incident. It is important to minimize any potential exposure to a re-injury. An employee who returns to a work situation in which his employer acknowledges the limitations the employee is faced with will have an easier time recovering sufficiently to perform his normal duties.

An employer must always retain control of medical treatment. There are times when a returning employee is assigned to modified duty, however no additional medical treatment is warranted. Some employees may disagree and seek treatment on their own. Unauthorized medical bills will be generated, and the employee will seek reimbursement from their employer. In such a situation, it is important that the authorized medical providers are clear in their release report that no additional medical treatment would be beneficial to improve the functional loss suffered by the employee. It is the employer’s obligation to closely monitor the medical treatment to establish any defenses to subsequent medical care which may be needed in the near future. The authorized doctors must address issues pertaining to future medical treatment. If the medical providers do not believe any additional treatment is required, their release report must state so and make a distinction between curative and palliative treatment. This will be required if the employee attempts to obtain unauthorized treatment and seek reimbursement at a later date by way of a motion before the Workers’ Compensation Court.

It is therefore important for the employer to address these issues when faced with a returning injured employee. It is true most employment is in fact “at will” and an employer may terminate any injured employee who cannot fulfill the position for which they were hired due to their limitations, if said limitation causes risk of injury to the employee or co-employees. However, if the employee is a valued employee it is always in the best interest of the employer to ensure the employee has every opportunity to rehabilitate in order to return to their position within the company.

Kenneth W. Thayer, III is an associate of Hill Wallack LLP where he is a member of the Litigation Division and Workers’ Compensation Practice Group.