Today we're talking about light duty in New York State Workers' Compensation, light duty in Workers' Comp in general. We're going to jump right in. And as always, folks, if you have any questions, please feel free to chime in. Post any questions on the YouTube feed. If you could post questions on Instagram, I will certainly be happy to answer any questions you have with respect to the topic.
My name is Rex Zachofsky, and I am a New York State Workers' Compensation Attorney. My phone number here is 212-406-8989.
So this question in and of itself is the source of so much confusion here in New York State. As far as New York State workers' compensation is concerned, light duty means reduced earnings. Okay, many clients will come in and say, "Ah, I returned to work. I went back to light duty." And I'll say, "Okay, you're working on light duty. How much are you earning? Are you earning the same or less than when you got hurt?" If they are earning the same amount of money as they were earning when they got hurt or more money, then we don't consider them to be a light duty.
Why? Because they don't have reduced earnings. As far as workers' compensation concerns is concerned, we're only looking to see if your injury, your disability has caused a reduction in your wage earning capacity. Okay? The example I've given is a construction worker, a union construction worker, a big strong guy who moves concrete all day and he gets hurt. He earns $1,000 a week at his job and he gets hurt. He breaks his arm, he hurts his back, whatever he does. And his boss says, "You know, you've been such a good worker for such a long period of time. I feel bad that you have to go out on comp. I feel bad that you got hurt." So, we're going to let you sit in the office and answer the phone. And I'm going to pay you the same $1,000 a week that you were getting when you were moving concrete for me.
Even though you're sitting in the office and you might be in a cast, you might be in a wheelchair, you might be, you know, whatever the physical problem you might be having is existing. You are not working at light duty. You're doing less strenuous work. You're working in a different capacity. But because your earnings are the same, you are not working at light duty in the eyes of workers' compensation. Clearly, generally speaking, yes, you are working in light duty. But under the law, under the workers' compensation law, that's not light duty because you don't have a reduction in your wage earning capacity.
So that's the big question here. Light duty means your injury, your disability has caused you to work at a reduced salary. Your unable to, your physically or your disability makes you unable to earn the same amount that you were earning when you had the accident. And that's what we discussed when we talked about light duty here.
Well, I mean, not many, not really, but a good amount do. And it does come up from time to time. And what should you do if they offer it to you? If light duty is offered to you, it comes up in a couple of different circumstances. And you really need to be aware of what the circumstances are surrounding the light duty offer.
First of all, 99.9% of the time there is, the offer of light duty is based upon some medical evidence from some doctor. And the first thing you really need to look at is, is that offer of light duty based upon your doctor's recommendations or the insurance company, the IME doctor's recommendations? And that's super, super important. You have your own treating doctor. You should only follow your doctor's instructions and your doctor's recommendations. You are not obligated to follow the recommendations of the insurance company's consulting doctor.
This is where it gets a little unclear and this is where you really need to pay attention. If you have an attorney, this is where you sit down with them and you go through the offer of light duty because the offer for light duty, usually it's an email or a letter from your employer that says, we've received medical evidence. Well, we received a report from the doctor that shows that you're able to work at light duty or reduced capacity or modified duty. They use all different terms. And based upon the doctor's opinion, you're able to lift up to 20 pounds since you've gotten a little bit better, since you've become partially disabled and you're allowed to, you could stand for 20 minutes, whatever it is. And they'll say that the doctor has said all these things, but they don't, they very rarely say which doctor it is that they're getting this information from. If they're getting this information from the insurance company's consulting physician, you are not obligated to follow those instructions.
That is just his opinion. That's a contribution of his opinion at the carrier's request. And you're not required to follow it less than until that becomes the law of your case, unless there's a finding of partial disability. So first things first, when you get that offer of light duty, review it, be aware of the circumstances and what is that offer of light duty based upon? Is it your doctor or is it their doctor?
Follow your doctor's instructions only and consult with your lawyer. You really want to sit down with your lawyer, go through the entire offer for light duty, review it with your doctor as well. If your unsure as to whether or not it complies with your doctor's instructions as opposed to theirs, show your doctor, let him review it and let him give you his opinion as to whether or not that offer of light duty is reasonable or not.
Nobody can force anybody to do anything. And if you have any reasonable explanation as to why you can't accept the light duty offer, certainly you should speak to your lawyer about it first and then if you need to explain to the judge and the insurance company. But the primary circumstance where you can turn down a light duty offer is when the offer is not based upon your doctor's recommendation.
If that whole letter that we just discussed is solely based upon what the insurance company doctor found during his examination, which is usually 5, 10, 15 minutes, yes you don't have to follow those that you don't have to take that light duty offer under those circumstances. And again, unless the judge rules that he rules in favor of the insurance company's doctor, he finds that whatever that doctor had expressed as his opinion that he agrees with and becomes the law of the case. And even then you're not forced to return to work.
You could find a different job, you can look for different work. So you're not necessarily really forced to return to a light duty offer.
If you're cleared for light duty, and again, you have to differentiate here, are you cleared for light duty by your doctor or are you cleared for light duty by their doctor? We're going to go with the assumption that you are cleared for light duty by your doctor. That's really the only clearance that you need to consider. If your doctor clears you for light duty work and your employer does not offer light duty work, do you have to search for work? Generally speaking, yes.
You do have to look for work within your physical restrictions or within the restrictions of your disability. So yes, you do have to look for work if your doctor clears you to return to work. So generally speaking, yes, you do have to look for work. But if you can demonstrate that you remain actively employed in your position with your employer and they don't offer restricted duty, then perhaps you can make the argument that you don't have to look for work. So if you're working a job, let's just come up with an example here, you're a bricklayer and you hurt your back and your doctor says, "Hey, you know you've gotten a little bit better, you have a marked disability, a 75% partner." You've gotten a little bit better, you've healed. And you go to your employer and you say, "Hey, my doctor has cleared me to return light duty. Maybe I can work doing something else, so a little less strenuous until I get all better." And your boss says, "We don't offer light duty. We are all or nothing type of facility." And listen, there's a lot of employers out there that are like that.
Without getting into names of companies that do that, there are a good amount of companies that say, "We will not take you back unless you're 100%." And when I say companies, that includes municipalities, that includes cities and certain departments within certain cities. They won't take you back unless you are 100% unless you're fully cleared by your doctor to go back to work at full duty, they will not take you back. But if you can show that your employer does not offer that light duty and you've been cleared for that light duty, you can perhaps avoid the obligation of having to look for work.
If you prove to the judge that your employer won't take you back at light duty, then yes, you might have the opportunity to avoid that. So it's something to certainly consider.
Yes. And they will oftentimes try to use it against you. And they'll be much in the situation that we just discussed. You'll have a letter. There'll be a letter sent to you that says, "Hey, we've received medical records from the doctor." That say, "You can do certain light duty work where your restrictions have improved and you can do certain work and we're offering you a position within the restrictions."
They won't specify that it's their doctor's opinion and not your own doctor's opinion that they're relying upon. And they might try to throw that in your face in court or they might try to get you to go back to work and try to do the job that they're offering, which now is contrary to what your doctor said. If your doctor said you have a 90% or 100% disability or you can't lift more than 10 pounds, and their doctor says you can lift up to 20 pounds and you try it and you're successful.
Now they just disproved you and your doctor and that will hurt your case. It's always important to listen to your doctor. That's the person you've trusted with your care. The trust in a doctor is so important in getting better and you need to stick with that trust. So listen to your doctor. Don't listen to anybody else but what your doctor says. And if you have questions about what their doctor says or their offer of light duty work, talk to your doctor about it. Bring him the documents. Talk to your lawyer about it. Get as much information and understanding about all this as possible.
But yes, insurance companies will oftentimes try to use offers of light duty against their injured workers. And that's one of the big ways that they'll do it. The other thing they'll do is rather than send you a letter in the mail, they'll present you the letter in court. Hey, judge, guess what? By the way, we're offering light duty. Here you go. Here's a letter offering light duty and sometimes they're hoping to get that knee jerk reaction that quick dismissal of, I'm not going back, you know, and it just makes you look bad. So, you know, it's certainly a tactic. Some questions popping up over here.
What about the QME doctor? I don't know what a QME doctor is. I'm assuming it's the same as an IME doctor. I don't know if this is a New York state claim QME. If it's the same as an IME doctor that I'm discussing, yes, you don't have to follow your doctor, the IME doctor, which is the insurance company's consulting physician. They have a lot of different names from them. IME is independent medical examiner. They're not independent. They are paid for by the insurance company. But you follow your doctor's instructions. And it's the, like I said before, oftentimes it's the opinion of that IME doctor that they use to try to base the offer of light duty without really telling you that they're basing it on that to try to get you back to work. Independent. She clarified. Yes. Independent medical examiner. Thank you. So, we're on the same page. Very good. Okay. So, yes. Independent medical examiner. They try to shoehorn their doctor's opinion in. And they don't clarify that it's their doctor's opinion. They call it the doctor or a doctor or medical report. And they don't say that it's disregarding what your doctors have to say.
So, be very, very cognizant of the circumstances surrounding your, that light duty offer. Talk to your lawyer.
Great question. Will that end your workers' compensation benefits? Well, ending your workers' compensation benefits is a very generic statement. You're entitled to medical benefits. So, no matter what, if you still require medical care, you're going to get the medical care that you require under what's permissible under the law. So, whatever the law lasts for, medically you can get. You can always apply and get those medical records, those medical benefits, whatever you need there. Will it end your monetary benefits, your financial benefits, the money you're getting from workers' compensation? So, let's backtrack a minute here.
If you are working and you're receiving light duty benefits, light duty also known as reduced earnings in New York State. In New York State, if your injury does not allow you to go back to work and earn the same amount that you're earning before the accident, you are entitled to reduced earnings benefits. So, hypothetically speaking, let's say you were earning $900 a week at your job. You have this horrible accident. After a few weeks you go back to work. But the most you could do is earn $600 per week. You're working less hours, you're working maybe in a different position, a different role, and you're trying the best you can and you're only capable of earning $600 a week. So, you're entitled to two thirds of the difference. So, if the difference is $300, you're earning $900 before, you're earning $600 now, you're entitled to two thirds of the difference. The difference is $300, you would be entitled to $200 in reduced earnings benefits from workers' compensation. And that is until you are able to, unless you're deemed to be able to work full duty, unless you actually start making your full salary again.
So, if you're fired, we need to know why you were fired. If you were fired because you've been coming to work late and you've been stealing from the cash register, well, there's a good shot your workers' compensation benefits are going to end because the reason is because you're not going to be able to work. And that's because the reason why you were fired is unrelated to your disability. However, if your boss says, "Listen, we've been trying to give you the best, you know, we're letting you work here and you're just not cutting it because of your injuries, just reduced earnings, light duty or not, there's no sense in your being here because you're unable to really do anything productive and they let you go, well, the reason why, arguably, is because of your disability. And if they're letting you go because your disability is prohibiting you from working, then your benefits should not stop and there's certainly an argument to be made to continue your benefits.
So, it could go either way there and it's really important. It's very fact specific. It's important to know why you've been terminated and how it might be related to your underlying injury or disability.
My first tip, don't be so quick to dismiss the offer. Even if the offer is based upon the insurance company's doctor and his recommendations or her recommendations, if it's based upon the IME doctor's recommendations, don't be so quick to dismiss it because it looks, you will come across as combative. Give it consideration. Hey, you know, sir, I might not think that I'm able to do this, but I'm going to run it by my doctor and see what he has to say. You know, give it its due consideration. It goes a long way, especially in those circumstances where they present this offer to you in front of the judge.
And, you know, sometimes they'll say, "We mailed you an offer. Did you get it?" Yeah, I didn't get it. Yeah, because they mailed it six hours before. Well, here's the offer they're offering you this position to do light duty work and yada yada yada. You know, a lot of people's instinctual knee jerk reaction is to say, "Well, the hell with you, I'm not doing this. I can't do that and they yell and scream and get upset. Don't do that. Don't act impulsively. Don't act like that. Give it the consideration. Show the judge that you're a reasonable person.
You might say, "Hey, I don't think I'll be able to do this or, you know, my injuries are still, I'm still in a lot of pain, but I'm going to talk to my lawyer. I'm going to talk to my doctor. I'm going to consider this and see if it's something that me and my doctor feel like I can do and give it that consideration." Show that you're a reasonable person and you're trying to do right by everybody and that you're acting in good faith.
Good faith goes a long, long way. Fighting and being hard headed and argumentative does not go. It goes a long way in the other direction. Show the judge that you're a reasonable person. You're acting in good faith. It goes a very long way.
So, like I said, I guess my second thing, give the offer. It's full consideration. Review it. Make sure that this offer is in accordance with your doctor versus their doctor's recommendations and discuss it with your doctor. Sometimes they'll jumble some of those, you know, you can stand for 10 minutes, but you can walk a mile. They'll take a little from everybody and try to put it together to, you know, fudge the lines.
So, talk to your doctor, see what you can and can't do. Sometimes it's worthwhile to give it a shot. Like I explained before, with reduced earnings benefits, even if you're not working at the full capacity, if you're earning less money, you still might be entitled to workers' compensation benefits. And the salary that that light duty job is getting you. And you could do, it's better than workers' compensation alone. It's not as good as working full salary, but, you know, the primary goal here, and the way the law is written, is to get you to go back to work. It's to get you back to work, get you healed, get you back to work as soon as possible.
You will never earn the same amount of money on workers' comp that you earn working. Workers' comp, by definition, does not pay you your full salary. It pays you a percentage, a portion of your salary. Going back to work is, from a financial perspective, the best thing you can do. Listen to your doctor and go back to work with the two you decide that you're able to, and if that's a light duty thing, then great. It's a light duty thing.
We got some questions here. How long after surgery should you consider a light duty offer?
I am not a doctor, and even if you ask the doctor that question, they would tell you, it really depends on a case-by-case basis. What kind of surgery are we talking about? If it's an ingrown toenail surgery, I think it's going to be much quicker than a shoulder arthroscopy. It really depends on the surgery, and it depends on your recovery, and it depends on what you're capable of doing. Everybody's different.
Certainly, it wouldn't be an immediate thing, but I would absolutely have that discussion with your doctor when that offer is made. Like I just said, working is better than not working. You make workers compensation, pays you a maximum of 2/3 of your weekly salary each week of lost time. Working will always get you more money. If a light duty offer, Chris is sent to you, give it its due consideration, talk to your doctor about it, especially if you're just out of surgery. That's a very, very good question.
How long does it take for opposing counsel to sign a stipulation in regards to a TTD-benefit settlement? We've been waiting over two months.
Okay, well, TTD, I'm assuming, this is outside a little bit outside of what we're talking about here. TTD-MSUV is temporary total disability-benefit settlement. It's hard to answer that question because I just need a little more information. Usually, if it's a stipulation, a stipulation of folks is an agreement between the parties. It's a piece of paper. It's a stipulation across the top. It means agreement. Hey, we've agreed to the following things. It could be we're agreeing as to what your salary is. We're agreeing as to what sites of injury you hurt in this accident. We're agreeing as to awards. We're agreeing as to permanent disability. We're reaching an agreement on a whole bunch of different things. It's just an agreement. Generally speaking, when parties reach that agreement, you formalize the terms on a piece of paper. Once they're good, everyone signs off. Two months, that seems a little bit long. Again, I don't know if you're in New York either. Talk to your lawyer. Tell them to go and light some fires under the insurance company. Find out what the hell's going on over there and why your stipulation form has not been signed and submitted.
Another question, "On Workers Comp, no light duty. My company went out of business."
When you say there's no light duty, you're not capable of light duty or not been offered light duty. If your company went out of business, so another big misconception in the world of Workers Compensation, especially here in New York, is returning to work, disability from work. If a doctor says that you're 50% disabled from work, under the law, the doctor is not assigning you a level of disability from your job. Your doctor is assigning you a level of disability from all jobs. It's the job market in New York state. So, going back to the example I used earlier, the construction worker, you could be a heavy labor construction type guy and you could suffer a relatively minor injury. You could fracture your thumb. That fracture might prohibit you from ever going back to that heavy duty job that you've done your whole life. It's a relatively minor injury, whereas a person who has so many works and dry cleaners might be able to go back to work with a broken thumb a few weeks later and not really miss much. So, when a doctor assesses you for having a level of disability, it's your level of disability from all jobs.
So, the construction worker might be 100% disabled from his job as a construction worker for a long time or potentially forever, but it doesn't mean he can't do any work at all in New York state. So, the doctor would say that you have a partial disability and you could do something else. So, when an employer doesn't have an offer of life duty, and you're not able to go back to life duty, if you can do other work, sometimes you have to look outside the sphere of the body. And if your company's out of business, it's not going to matter. Anyway, you pick up and move on to the next phase of your life and put that behind you and put a smile on your face, demon haunted house. It's a little scary to me, my friend, but I'm sorry that your company went out for them, but sometimes, you know, people also a lot of times are worried about going back to their job. And they tell me about all the problems they have with their employer and how they did this wrong and that. Sometimes it's one of those circumstances where one door closes, another one opens, and maybe it's the time to move on with your life, try to find a different employer in the same field that you've been working, perhaps try to find something new altogether, move on with your life and put this horrible thing behind you.
If you have questions about workers' compensation here in New York or elsewhere, if you live in California, Florida, Pennsylvania, Massachusetts, we have firms that we work with all over the country that handle workers' compensation claims. We have firms that we work with that handle personal injury matters, sole security disability, labor and employment. If you've been unpaid overtime, they keep surfacing left and right. Folks, look at your pay stubs. Think about what you're getting paid. If you work 40 hours a week and you're not getting time and a half or anything over 40 hours, you might have an unpaid overtime claim.
It's remarkable how many times we go through a file and it's staring right in the face that this guy worked 55 hours and got paid minimum wage straight through. Well, it shouldn't be that way. It shouldn't always be that way. Again, every case is different. They're fact specific. But if that's the situation that you're in, it might be worth having a discussion because maybe there's an unpaid wage, unpaid overtime claim, things like that.
And with that, folks, I'm going to wrap it up here. Again I can be reached at, 212-406-8989.
Thank you everyone and have a great day.
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