MODIFIED DUTY

Steven Cesare, Ph.D.

A business owner from Ohio called me the other day to talk about his company’s safety program. Despite myriad onerous obligations OSHA has placed on employers to provide a safe work environment, this owner has maintained deep empathy for his employees, has instituted a venerable safety culture, and serves as a sincere role model across the entire safety spectrum (e.g., goals, training, accountability). Within that context, the prevailing issue throughout our conversation was his company’s “position” on modified duty.

Modified duty (i.e., light-duty) is an offer of a work assignment made to an employee who is recovering from an injury, and who has received professional clearance from a physician to return to work with specific medical limitations. An employee assigned to modified duty may perform a portion of the duties of his/her regular job or a completely different job, at a reduced pay level. The key element is that the modified duty job must not extend beyond the employee’s stated physical restrictions.

Often, the most expensive part of a workers’ compensation claim is the indemnity benefits (i.e., a percentage of the worker’s wages) paid to the injured worker for lost wages. In addition to lost wages, it is commonly stated that employees are less likely to seek legal counsel if the employer facilitates early return to work through light-duty positions. If an injured worker is released to modified duty by a treating physician and the employer encourages a return to work within their restrictions, the indemnity benefit is eliminated (or at least reduced). Ultimately, this reduces claim reserves and legal costs. It is also espoused that employers can curtail attorneys from faking a case, because in most states the injured worker’s attorney only gets paid a portion of what the employee receives in indemnity benefits. In short, if the employee does not receive indemnity benefits, there is no money in it for an unethical attorney.

In unidimensional terms, many landscapers instinctively believe in modified duty because they do not want their injured employees to receive partial wages while staying at home every day surfing the web and/or watching ambulance-chasing attorneys on television commercials.

To that end, with practical application, depending upon the nature of the employee’s injury, common modified work assignments in the green industry involve: having the employee clean up the yard, shop, or office; serving as a yard security officer in which the employee is given a chair to sit in while ensuring the yard is free from trespassers every workday; allowing the employee to hand water vegetation on a job site while only using his/her non-injured arm/hand; or performing low-level administrative tasks in the office.

By way of contrast, some companies eschew modified duty assignments as part of their company-wide risk management program. In support of that position, several common pitfalls are frequently relied as justification. First, if by chance, the injured worker somehow gets reinjured or aggravates his/her current injury while at work, the workers’ compensation process becomes increasingly complex. Case in point, the employee could cite the employer for prematurely rushing him/her toward an illegitimate full recovery, or intentionally ordering the employee to perform work duties beyond stated work restrictions; thereby serving as prima facie evidence for a lawsuit.

Second, it is not uncommon for attorneys to scrutinize modified duty assignments as provocation for a wrongful termination claim if the injured employee is let go from the company for violating a company policy or failing to meet performance standards, with the attorney leveraging the position that the company had the ulterior motive of trying to prevent the employee from receiving additional temporary disability payments. In essence, the injured worker is principally granted heightened protective status.

Finally, in an age characterized by easily-offended employees who wait provocatively to be triggered by any degree of accountability, let’s not pretend those employees will not allege a microaggression by stating that management constantly belittles them for being injured, malingering, and not contributing to the team.

While the decision is ultimately made by the business owner, which I will totally support, it is my professional premise to not offer modified duty to injured employees in that the above-mentioned potential risks are likely much more severe, long-lasting, and costly than paying disability payments to injured employees to stay at home, attend their treatment sessions, and remain outside the realm of plausible litigation.

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