If your job injury claim falls under the jurisdiction of the Louisiana Workers Compensation Act or Longshore & Harbor Workers Compensation Act and your treating doctor says you are physically capable of returning to modified duty work either with your employer of injury or with another prospective employer in your geographic region. The vocational counselor says you have the skills necessary to do the position. What should you do?
If the Modified Position is with Your Employer of Injury
If the modified duty position is with your employer of injury, get to work and try the job. If you fail to return by the return to work date, you may be fired and your employer will probably reduce or terminated your workers compensation indemnity payments. See, Banks v. Industrial Roofing & Sheet Metal Works, Inc.pdf Furthermore, without showing up, you will never be able to determine if the position offered pays your pre-injury wage, if it is full-time or part-time, if the position is within your physical restrictions and skill set or if the position even exist. Sometimes these positions are even temporary or perhaps even created solely for purposes of terminating or reducing your indemnity payments.
Upon returning to work , make sure you keep a copy of your work restrictions in your pocket so you can provide them to your employer if your restrictions are called into question. If you have physical trouble performing the job, call your treating doctor immediately to get in to see him.
Also, upon returning to work, do not give the employer a reason for terminating you for misconduct as this may also be a basis for terminating or reducing your potential future indemnity payments under the rationale that your termination caused your wage loss, not your job injury. See, Synigal v. Vanguard Car Rental, 951 So. 2d 1197 – La_ Court of Appeals, 5th .pdf
Do not quit your job as this may also be a basis for terminating or reducing your indemnity payments.
If the Modified Position is with Another Potential Employer
If the vocational rehabilitation counselor presents your treating doctor with a list of job descriptions of potential jobs with other employers in your geographic location, you should diligently explore these job opportunities. If you don’t, your indemnity payments may be reduced or terminated if your treating doctor has indicated you are physically capable of performing the jobs on the list. See, Mayeux v. Kentucky Fried Chicken, 671 So. 2d 1261 – La_ Court of Appeals, 2n.pdf
Without at least exploring the job opportunities by asking questions of the potential employer and/ or making out an application with the prospective employer, you will have difficulty determining whether the position advertised is within your physical restrictions, your skill set and your geographic area or if it even exists or pays the listed pay rate.
Keep detailed notes on all prospective positions including name, address and phone number of the prospective employer, who you spoke with, date you made out an application, whether there is an actual position available, physical requirements, education and skill requirements, rate of pay, follow up calls etc.. See, Gasway v. Cellxion, Inc., 31 So. 3d 566 – La_ Court of Appeals, 2nd Circuit.pdf
Similar Rules Apply under the Longshore & Harbor Workers Compensation Act
Similarly, under the Longshore and Harbor Workers Compensation Act, the employer of an injured worker may be able to reduce or terminate the Longshoreman’s indemnity payments by demonstrating that the injured worker is able to secure suitable employment within the injured employee’s geographic region that the longshore employee is physically and mentally capable of performing. The employer of injury need not hire the injured worker himself or find him a guaranteed job. Rather, the employer only needs to establish that water is nearby which the injured worker may drink if he reaches for it. See,New Orleans (Gulfwide) Stevedores v. Turner, 661 F. 2d 1031 – Court of Appea.pdf