New Times for Transitional Duty, Modified Duty in New York


Things are changing in workers comp. Lost time has become something to be limited, a concern that did not always receive the highest priority in the past.

The reasons are clear: a less than powerful economy and a rising cost of living.  Return to work, for decades in NY comp, has been viewed as a way to deprive a worker of a settlement and a way to deprive a lawyer of a substantial fee. But a mounting sense of uncertainty has changed that.[WCx]
For the employer, having a plan, not necessarily firm written guidelines, for returning employees to have some form of useful activity will have large benefits, and will not meet with the forms of resistance encountered in the past. A lawyer who ignores a return to work offer made to a client is playing a dangerous game, as recent court decisions have shown.
Employers who are not large enough to warrant an ongoing RTW program have traditionally stated, “We have no light work”, but that misses opportunities. Naturally, prior to most accidents, the mid-size or smaller employers probably do not have a firm plan in place, but that does not mean that something, somewhere, somehow cannot be done.
Doing something without having a prior plan in place has certain advantages. It means that whatever is tried is more likely to be a good fit with the circumstances than a prior plan. What is planned when nothing has yet happened is built on assumptions, not facts.
The first, and strongest gain from an employer meeting with an employee and exploring a RTW plan is to shift the relationship for both from passivity to active measures. And that means a rise in morale for both.
If the employer cannot think of useful work within the limits on activity imposed by an injury, then both the employer and employee should consider a joint search for light, but temporary, work in the general area. The advantage to this effort is that the employee, and the employee's doctor, will also start thinking in terms of return to work.
In all of this, the comp board, the carrier/TPAs and the lawyers have been set aside. The comp law, at least in NY, does not give any of those the power to direct, or prohibit, return to work efforts.[WCx]
RTW efforts encounter many problems, both small and large, which will be discussed in the next piece.

Author: Attorney Theodore Ronca
is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.





Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.


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