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What happens if as a result of an industrial injury one can’t return to work?

The Supreme Court of the state of California has long held that if someone is medically restricted from returning  to their usual and customary work, it is legal or permissible for an employer to prohibit return to work. In addition, unfortunately there are situations where individuals are so disabled that they know they cannot return to their usual and customary job. So what rights exist for these individuals? The answer requires an analysis of not only the workers compensation laws of the state of California, but in combination with the employment laws of the state of California, and the federal Social Security disability system.

When an injured worker has received sufficient medical treatment that the doctors have determined that they have reached a point of maximum medical improvement (MMI) (not getting better or not getting worse), return to work becomes an important issue. Of course, many injured workers do not lose time from work, or return to work before they reach the MMI status. If the treating doctor restricts an injured worker from returning to their usual and customary employment, this can be challenged by the parties utilizing an Agreed Medical Examiner, or a state Panel Qualified Medical Examiner. If these doctors also restrict return to one’s usual and customary employment, as stated above, it is legal for an employer to prohibit return to work.

The FEHA California Employment law then requires that an “interactive process” take place. This is an in person meeting between the employer and the injured employee. At this meeting the employer must discuss what if any alternate or modified work is available. If no work is available, the meeting still must take place. Failure to schedule such a meeting is a violation under California employment law.

Under California Workers Compensation law, if someone cannot return to work, they are entitled to receive certain additional benefits. Supplemental job displacement benefits take the form of vouchers ranging from $2-$8000. The injured workers permanent partial disability benefit is increased by 15% for each weekly payment. Finally, since such individuals sustain either a total or substantial wage loss, using the Ogilvie case, (see the specific item on our website regarding Ogilvie), the overall percentage of permanent disability can be substantially increased.

Finally, those injured workers who cannot return to work should be advised with regard to their eligibility rights for either Social Security disability, or for governmental employees, the  appropriate state, county, city, or teachers retirement system rights.

Return to work, especially in these hard financial, times is always a desired goal, but for those individuals who cannot return to work all of the above benefits should be explored.


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