Tag Archives: work restrictions

Hurt by (and/or fired for) “violating” your work restrictions

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Damned if you do, damned if you don’t. That’s the dilemma for many injured workers under doctor-given work restrictions.

Injured workers are damned by being subject to discipline if they refuse to work above their restrictions, but they can also be disciplined for doing work “above” their restrictions.

Sometimes “violating” work restrictions can even lead to workers’ compensation benefits being denied.

I thought about this topic after I read a blog post by Thomas Robinson involving a Tennessee worker who hurt himself lifting 29 pounds when his permanent restrictions were 25 pounds. Fortunately, the Tennessee Supreme Court stated that in that case that was not sufficient grounds to deny benefits.

But it “violating” work restrictions can be grounds for denying workers compensation benefits in Nebraska in certain circumstances. Primarily, if an injured worker misrepresents their old injury to a new employer.

Misrepresentation as a defense to paying workers compensation benefits in Nebraska

In Nebraska, an employer can deny benefits if an employee misrepresents their work restrictions in an employment application and that misrepresentation leads to the work injury. I think this law has to be interpreted in combination with ADA and similar disability discrimination state laws. I think checking the box “yes” on employment application of whether you can do a job with or without reasonable accommodation shouldn’t be enough to sustain the misrepresentation defense. But not disclosing an old injury in a post-hire physical or health assessment is stronger evidence in my view.

Some of the more creative minds on the management side argue that concealing an old injury from an employer is willful negligence by an employee. Willful negligence is also grounds to deny workers’ compensation benefits. The Tennessee decision more or less rejected that argument and would be good persuasive authority on the issue.

Fired for violating work restrictions

Can an employer fire you “violating” work restrictions? It depends on the circumstances. If you’re on a 10 pound restriction and you get caught doing cross-fit, I would say yes. But a case where you lift 29 pounds with a 25 pound restriction is a closer call. It’s unlawful to fire some in Nebraska, and most other states, for filing a workers’ compensation claim. Firing someone for a petty and unintentional “violation” of work restrictions would seem suspect and could infer that the workers’ compensation claim was the reason they were fired.

Why I put quote marks around “violations” of work restrictions.

I’m not putting quote marks arounds “violating work restrictions” just to be funny. Maybe I need to explain the joke. Anyone who knows anything about workers’ compensation and is being honest, knows that work restrictions are just an estimate. Even restrictions from a valid Functional Capacity Evaluation are more or less estimates of work abilities.

But what if an employee is fired for exceeding work restrictions that weren’t disclosed?

Fired for concealing work restrictions?

I think these are close cases. As a plaintiff’s lawyer, I would argue that someone who was fired not disclosing a work injury still has a retaliation claim. After all, but for the employee filing a workers’ compensation case, the employer would not have discovered the concealment and fired the employee. Maybe that seems like an overly technical argument, but does the argument at least shift the burden on to the employer to argue an equitable defense like laches or unclean hands? I don’t know the answer to that question, but if there is other evidence of retaliatory motive then concealing an old work injury may not be a lawful reason to terminate an employee.

Don’t risk getting fired

However, as an employee you don’t want to take the risk. The ADA requires that employers attempt to work with you to accommodate a disability. If you are concerned about returning to work after an injury, don’t conceal old injuries if they could reasonably impact your ability to do your job. Often time there are simple fixes that allow you to complete your job duties. The Job Accommodation Network has suggestions about how to accommodate disabilities. Try to use those resources and/or work with your co-workers to try to accommodate your disability. Unions are also a great resource for accommodating an injury, use them when they are available.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Is “Light Duty” Really Light Duty?

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One phrase that is thrown around in the world of workers’ compensation is “light duty.” Light duty refers to a job done by an injured worker while they are on work restrictions. However “light duty” isn’t always light duty if the employee physically struggles with doing their light-duty job. To me, light duty can be a misleading description of what injured workers go through when working alternate-duty jobs. Here are three situations where I think the term light duty is misleading.

1. Employee forced to work without restrictions with one limb when the other limb is restricted. This is common in the meatpacking industry with hand, wrist and arm injuries, and I have seen it in construction as well. Employers read work restrictions too literally and force employees to work unrestricted with the uninjured hand or arm. Unfortunately, the result of this is that the other arms or hand can get injured through overcompensation or overuse. This can lead to another and/or a larger workers’ compensation claim, which also leads to more medical expenses, pain, suffering and inconvenience for the injured workers and their families.

2. Doctor-given restrictions do not really reflect true physical restrictions. This can happen for a couple of reasons. One reason is that a doctor might not know the “light duty” job description. To remedy this, the employee needs to be clear about telling the doctor what his or her actual duties are so the doctor can give accurate job restrictions. Having a written job description is extremely helpful. If management makes it difficult for you to get a copy of your job description, this should indicate that you need to contact a lawyer and that the company may be discriminating against you because of your injury. Second, the doctor may be unduly influenced by an employer or insurer. In Nebraska, we have doctor-choice rights as part of our workers’ compensation act. In other states, attorneys have filed RICO suits against unlawful combinations of employers, insurers and doctors who conspired to undercut the value of workers’ compensation claims. If you feel you are being treated unfairly by a doctor, you should contact an experienced attorney to see what your options are.

3. Work restrictions are difficult to measure. Work restrictions are usually measured by lifting and so-called “non-material handling” activities like walking, bending, climbing, etc. This can exclude a whole host of other restrictions, like noise tolerance, heat and cold sensitivity, as well as dust and chemical sensitivity, which can make a job difficult. Some serious restrictions can also defy easy attempts to measure them. Someone suffering the permanent effects of a head injury may get periodic headaches and sickness that force them to leave work on an irregular basis. This kind of restriction is difficult to measure during a medical examination or even in a functional capacity evaluation, but it certainly impacts someone’s ability to hold a job.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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