Tag Archives: misrepresentation

The problem with being released back to work from an injury with no restrictions when you still probably have restrictions

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Being sent back to work with “no restrictions” can actually make it harder for injured workers to return to work and retain jobs

Recently I read medical records in two separate cases where doctors wrote they were doing my client’s favors by releasing them to work without restrictions when there was evidence of permanent damage or impairment from the injury.

The thought is that a worker with no restrictions will have an easier time returning to work. But in my experience, an inaccurate opinion that a worker has no restrictions makes it harder for an employee to return to work and retain work after an injury.

Vocational rehabilitation and return to work – In Nebraska, a worker who is unable to return back to work at a similar rate of pay because of an injury can be eligible for vocational rehabilitation benefits. Sometimes this means job placement, other times it can be mean re-training or further education. This also means being paid temporary total disability while being involved in a program.

An inaccurate statement from a doctor stating an employee has “no restrictions” makes it harder for an employee to obtain vocational rehabilitation. Nebraska law allows for awards of vocational rehabilitation based on an injured workers’ testimony. But that requires the delay and uncertainty of a hearing.

Sometimes and an employee is released back to work with impairment but no restrictions. The impairment entitles an employee to permanent disability and can be a basis for the Nebraska workers’ compensation court can appoint a counselor for vocational rehabilitation services. But without restrictions a counselor may have difficulty placing an employee in a job or developing a plan.

The bottom line is, if an employee has permanent restrictions given by a doctor, then vocational rehabilitation can start faster and counselors have a much easier time in developing job placement or retraining programs.

No restrictions. No reasonable accommodations under the ADA? Under the Americans with Disabilities Act an employee can ask for a reasonable accommodation based on a disability. An employee with a medical note that they have no restrictions will find it difficult to impossible to find an employer who will try to reasonably accommodate them.

While in theory, employees have some ability to testify to the extent of their own disability under the ADA, that testimony usually carries less weight in an ADA case than it does in a Nebraska workers’ compensation case. But even if an employee can succeed in an ADA case, that means an employer has taken some adverse action against them. Usually, but not always, this means they were fired. This also usually means an employee waits a year at shortest for an outcome.

But an employee can short-circuit this hassle if they have reasonably accurate work restrictions from an MD.

Getting fired for false representation of your injury? I think doctors who give their patients inaccurate work releases without restrictions could in some circumstances be setting up their clients for being fired. Employers can ask about prior injuries post-hire if it is job-related. An employee who is mislead into believing they have “no restrictions” may believe they have no restrictions. A doctor who purposefully releases someone back to work with no restrictions may also be re-enforce the falsehood that no one will hire a worker with restrictions.

So what could happen? The employee is unable to tolerate the job and maybe asks for an accommodation. Then it comes out the person had a prior injury. Lying on an employment application is a good way for an employee to get fired.

Nebraska law also makes it harder for employees who misrepresent their physical condition during the hiring process to collect workers’ compensation benefits.

No, having “no restrictions” won’t ruin your workers compensation case.

Nebraska workers’ compensation law allows employees to testify to the extent of their disability or injury so long as the injury is found to be work-related. But evidence that a doctor believes an employee has “no restrictions” gives employers a plausible excuse to delay benefit payments.

Lawyers for injured workers can often times “fix” a “no restrictions” report with results from a Functional Capacity Evaluation or FCE. Fortunately many doctors will order these tests, but not every doctor does. But even if the tests are ordered, an employee or their attorney can get stuck with the cost of the examination.

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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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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