One of the best methods to reduce all forms of exposure is the employer bringing the claimant back to work within restrictions and limitations. Temporary partial disability benefits tend to constitute the lion’s share of indemnity benefits payable to injured workers in many cases. Bringing the claimant back to work within restrictions and limitations can significantly reduce TPD exposure. Return to work also keeps the claimant in the “working mindset” where he or she focuses more on recovery and resuming a normal lifestyle, as opposed to litigating the claim.
Certain claimant lawyers have been using a very troublesome technique when the employer offers work within restrictions and limitations. They are dispatching a vocational specialist to go to work with the claimant for purposes of observing the job and making sure the work is within restrictions and limitations. This is obviously a very invasive and unusual practice. Most employers are not prepared to have strangers critically look at their worksite and so closely evaluate the transitional duty assignment being given to the injured worker.
There are a handful of orders from JCCs allowing this practice. This practice is permissible based on a rule of civil procedure that allows for entry onto land for purposes of conducting inspections.
The way to overcome this obnoxious practice is by making sure the work being offered to the injured employee is precisely within restrictions and limitations. Keep in mind that the claimant’s lawyer is paying the vocational specialist something on the order of $100 per hour to sit there and watch the claimant work. This is a cost that can never be recovered from the employer/carrier. Once the claimant’s vocational specialist recognizes that the work being offered is within restrictions and limitations, he or she will probably leave, never to be seen from again.
Employers have rights to privacy and the ability to protect trade secrets. Therefore, an employer must be given notice of a vocational specialist accompanying the injured worker to the jobsite. The vocational specialist retained by the claimant’s lawyer cannot show up unannounced and unscheduled. When they have provided notice that they will be evaluating the claimant’s job duties, welcome them with open arms and show them that the work being made available is within restrictions and limitations. An employer/carrier can also take the deposition of the vocational specialist retained by opposing counsel in order to prove that the job was indeed within all applicable restrictions and limitations.