December 13, 2019

Employee’s Failure to Honor Light Duty Restrictions Results in Denial of Benefits

How are your rights under Georgia’s workers compensation law affected if you return to work light duty but end up performing full duty work?

In a recent case heard by the Georgia Court of Appeals, an injured worker was denied weekly wage benefits because he worked beyond the light duty restrictions set out by his supervisor.

The employee in this case was a cook, cashier and clean up worker at a fast food restaurant. In January, 2013, the employee injured his back when lifting a pot of chili. Shortly thereafter he aggravated his back throwing trash into a dumpster. He was instructed by his supervisor to avoid heavy exertion.

On November 19, 2013, the employee injured his back again when a stack of boxes collapsed on his head and chest while he was unloading supplies. Following this accident, the employee’s supervisor instructed him “not to lift anything unless given permission to do so by a member of management.” Four days later, however, the employee was observed by his supervisor lifting heavy items while restocking the store.

Employee Fired for “Insubordination”

On December 19, 2018, the injured employee was fired by the employer for his “insubordination.” He thereafter filed a workers’ compensation claim asking for temporary total disability (TTD) benefits form December 20, 2018 onwards. The State Board judge originally approved the injured employee’s but the employer appealed. The Appellate Division of the State Board reversed the hearing judge’s decision and ruled against the employee, who then filed his own appeal.

The Court of Appeals affirmed the decision of the Full Board, holding that the employee was not entitled to benefits. The Court of Appeals agreed with the employer that the reason the injured employee became unemployed was insubordination (failure to follow instructions issued by his supervisor) and not due to his back problems. Since his economic loss was not the result of his on-the-job injuries, he was not entitled to weekly wage benefits.

Bad Precedent for Injured Workers

This case is troublesome to me for several reasons

First, the Court of Appeals is accepting the hearing judge’s conclusions that the supervisor’s instructions “not to lift anything unless given permission to do so by a member of management” constitutes a valid light duty restriction. The supervisor is not a medical doctor trained in issuing work restrictions. Is it even possible for a fast food restaurant employee to perform any work task with a zero pound lifting restriction? What type of tasks could any employee done with this very broad restriction?

Secondly, this decision does not recognize the reality that employees in light duty status are often pressured implicitly or explicitly to perform tasks beyond the limits of their light duty restrictions. If an employee decides to perform tasks that he believes in good faith are what his employer wants, should he be punished for that? Will we start to see employers and their insurance companies using the tactic of terminating injured workers for being insubordinate as a means to deny temporary total disability benefits?

So, how do you protect yourself from possibly losing your TTD benefits in scenarios where you could be fired for “insubordination” after filing a claim under Georgia’s workers’ compensation law?

First, if you are put on light duty, insist that your restrictions are made clear by your doctor. “Employee is limited to lifting 15 pounds or less” is clear. When I am representing a client and I see a “light duty” work restriction that is not clear or does not reflect my client’s recollection of what the doctor said, I send my client back to the doctor for more specifics. The authorized doctor should be issuing clear and detailed work restrictions.

I also offer guidance to my client about what to expect when he/she returns to light duty and how to deal with push back from supervisors or co-workers. We also discuss what to do if even light duty is too much. I have seen many cases where an injured employee is fired for “insubordination” when the injured employee tells his/her supervisor that “I am not physically capable of performing that task.” Now it seems that if you try to perform a task beyond the doctor’s restrictions that could be considered insubordination too.

Often, when one of my clients is trying to work under light duty restrictions I will speak to that client daily to answer questions or to offer guidance. I know that the employer is talking to their lawyer; my client needs to be talking to me. I also want employers and their insurance companies to know that someone is watching them.

Second, keep in mind that your supervisor or human resources director is not a good source of information for you about your rights under Georgia workers’ compensation law. From your employer’s perspective, an injured worker means higher insurance premiums and an empty work site that has to be kept open. When a worker returns under light duty restrictions, changes have to be made to work flow and other employees will have to take on added burdens.

I encourage any injured worker to seek legal advice regarding medical benefits, TTD (lost wage benefits), travel reimbursement, rights to an independent medical exam, a change in treating physician if needed, and other elements of Georgia work injury law. If I can be of assistance to you in this regard, please do not hesitate to call me at 770-351-0801.

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Jodi Ginsberg

Attorney Jodi Ginsberg represents employees who are injured on the job and who need medical care and missed wage benefits available under Georgia's workers' compensation laws.

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