Obsolete Work Restrictions that Will Not Die, California

[synesthesia56]

Hi, and thanks for your interest and time!

I had a problem where I work with an industrial detergent used to clean medical equipment... Saw a work comp toxicologist, had a QME give a permanent partial disability with a generic restriction to "avoid the detergent used to clean these machines". Stipulations in the award agreement state the QME's restriction was to be permanent.

After further trouble with vapor from the disinfectant in the detergent getting into the air conditioning, the work comp toxicologist assigned a more severe work restriction of "avoiding areas on the air conditioning circuit when cleaning was being done".

I signed an accommodation agreement with my employer for the new restrictions, but transferred to a different building to escape the environment entirely. Felt much better and I asked the work comp doctor if his restriction could be lifted as my problem was resolved but the restriction was affecting my access to the other building, and he said sure.

Fast forward three years... I'm feeling fine, the medical equipment is now cleaned with a new, less toxic detergent, but this equipment is now coming to my new facility. My employer has cautioned me that due to my restriction accommodation agreement, my career may be substantially affected.

Long story short; I dug into the permanent and stationary report of the visit my work comp doc said was supposed to lift his restrictions (leaving only the generic QME restriction which can not be changed), and he never lifted his severe restriction to avoid all areas where the cleaning is done.

I contacted him and he said he would be happy to review and modify his restriction, but I must get approval from the work comp carrier. The carrier refused my request to see him again saying too much time has gone by, and "we can't change the past". The restrictions must remain.

Now, even though the detergent that made me sick is no longer used, I am stuck with a restriction to avoid all areas where these medical devices are being cleaned, and my boss and HR is saying they don't know how they can keep me in my position with the severe restrictions in place.

How do I break this logjam and get back in to see the doc who can modify the restrictions to reflect the changes that have occurred? I don't think I'd make a very good greeter at Walmart!

Any ideas would be greatly appreciated.

Thanks again for listening.

[absent-minded]

look really hard and find a GOOD work comp lawyer (they ARE out there) to play the games with them. you do not have to pay a lawyer up front. good luck, hope things work out for you.

[HRinMA]

Why don't you pay for the doctor's visit out of your pocket? While it may be expensive, it will help you keep your position.

Also how do you know the new detergent won't affect you the same way as the old detergent?

[synesthesia56]

From what I gather, work comp medicine is completely separate from private... Even if I saw the doc private pay, he would not be able to address my work comp restriction unless it was an official work comp visit. Otherwise, one would just be able to doctor shop until they found someone who would report what they wanted. This would give too much power to the patient, who is powerless in the work comp system.

I have resolved my chemical sensitivities through lifestyle modification, and haven't had any problems of this nature for years now.

What bugs me is, the doc said he was lifting my restrictions years ago when I first got better, but he LIED! Funny, as we got along very well and saw eachother many times.

I think it was a cover your a** type of thing. If he lifted my restriction and I claimed another injury, he would have gotten some heat.

Can't believe I'm stuck now...

[HRinMA]

Worker comp is not separate from private doctors in the 7 states (not in CA) my company operates in. I have many injured employees who visit their primary care doctor but it is billed to our insurance company.

You should call the doctor's office and explain the situation and see if you can pay for a visit. It seems the simpliest solution.

[synesthesia56]

I will certainly give it a try...

Thanks for the tip!

[CAIW]

What other states do in return to work issues is up to them..

In Calif however, once you are declared MMI, and rated for PD/WPI, your claim moves toward some type of resolution.
The labor code requires the ER to make a valid job offer within 60 days of MMI, and, that LC also describes what the offer must be...(the key being "if possible") within any ''permenant restrictions"

4658.1. As used in this article, the following definitions apply:
(a) "Regular work" means the employee's usual occupation or the
position in which the employee was engaged at the time of injury and
that offers wages and compensation equivalent to those paid to the
employee at the time of injury, and located within a reasonable
commuting distance of the employee's residence at the time of injury.
(b) "Modified work" means regular work modified so that the
employee has the ability to perform all the functions of the job and
that offers wages and compensation that are at least 85 percent of
those paid to the employee at the time of injury, and located within
a reasonable commuting distance of the employee's residence at the
time of injury.
(c) "Alternative work" means work that the employee has the
ability to perform, that offers wages and compensation that are at
least 85 percent of those paid to the employee at the time of injury,
and that is located within reasonable commuting distance of the
employee's residence at the time of injury.

This next section deals with the SJDV/voucher issues, but also in your situation, your acceptance of "modified/alternative" work...

(b) Within 30 days of the termination of temporary disability
indemnity payments, the employer offers, and the employee rejects, or
fails to accept, in the form and manner prescribed by the
administrative director, alternative work meeting all of the
following conditions:
(1) The employee has the ability to perform the essential
functions of the job provided.
(2) The job provided is in a regular position lasting at least 12
months. (3) The job provided offers wages and compensation that are within
15 percent of those paid to the employee at the time of injury.
(4) The job is located within reasonable commuting distance of the
employee's residence at the time of injury.

Note the 12 month time frame... your ER is only required to maintain your modified job for those 12 months. Beyond that time...there are NO protections, nor would a PQME opinion to your job functions be relative. The ER/IC is correct in denying you access to the PQME again. Even if you pay out of pocket, won't matter. Dr opinion do not affect ER employment policy.

You did not indicate how this claim was resolved, Stipulations w/Award, or Finding w/Award & Order by judge, or C&R with a lump sum payment.
In the stips, the body parts would be agreed to for future medical care, and the % and $ amount of indemnity benefits due.
I have to think as you did return to work, your indemnity was reduced by 15%, so you have a Stipulated agreement in place.
If you suffer reinjury you may petition to reopen the claim within 5 years of the org DOI/Date Of Injury... for "new and further disability".

What bugs me is, the doc said he was lifting my restrictions years ago when I first got better, but he LIED! Funny, as we got along very well and saw eachother many times.

That's not entirely true. The PQME opinion, and restrictions are used in calculating your PD/WPI rating, that rating is what the PD indemnity money is based on.
Lift the restrictions, and you reducue the indemnity, you also change the terms of a RTW offer.

There is nothing that says you cannot 'rehabilitate' post injury, which apparently you have done. There is nothing that says the ER must continue to recognize those restrictions past the 12 months of your RTW.

What you can do... as this is waaaaaay past the provisions of the WC statutes, negotiate with your ER the possibility of a Dr evaluation now and what if any restrictions you may have and your suitability of performing the basis functions of your job. This is NOT a WC issue however. The cost would be bourne by your ER and/or your contribution. Technically, the ER would be liable for employment suitability post the 12 month employment post MMI.

I think it was a cover your a** type of thing. If he lifted my restriction and I claimed another injury, he would have gotten some heat.

Nope. Everything you are bring up in this thread is pretty much cut and dried in WC system in Calif.
And, those PQME are contracted by the DWC Medical unit, and writh those reports under oath just as though in a courtroom testifying in person.

I have resolved my chemical sensitivities through lifestyle modification, and haven't had any problems of this nature for years now.

If you do experience further symptom... file a new claim if you are past the 5 year SOL.

Also know, unless you are eligible for benefits under FMLA, there are no job protections, or ER paid benefit continuations. FMLA provides up to 12 weeks per annum, then the ER can lay off or terminate you at will.

You have no further benefits under the WC claim. Here too, you can be terminated at will any day sans a collective barganing agreement in place.

[synesthesia56]

Great Post CAIW! Many Thanks!

Claim was resolved, Stipulations w/Award. Stipulation was for original QME's generic restriction to remain. I think I can live with this one. It is the piggyback restriction that followed from the work comp/employee health doc that has me worried.

I am working, in good standing for over 3 years now at new dept of same healthcare company. Just don't want to see this sleeping dog wake up and bite me in the future.

I shall try to digest your wonderful input and see what I can do. Will post again with my ideas.

Again, Many Thanks!
S56

[CAIW]

It is the piggyback restriction that followed from the work comp/employee health doc that has me worried.

Don't know what you mean by "work comp/employee" health doc... you have one PTP/Primary Treating Physician to treat your injury.
When there is a disputed medical issue, you go to PQME. (if you don't have an attorney)
There are specific restriction to you org injury post recovery that define your ability to work. You work within those restrictions with your preinjury employER or you don't.
If your ER can't provide work within those restrictions, you find work elsewhere that IS within the restrictions. Doing otherwise indicates you are not as "disabled" as you may claim or the rating indicates... when that happens, the ER/IC can go back to the WCAB and petition a reduction in your indemnity award.

Basically, after the one year your ER provided the modified/alternative work, the PQME restrictions are no longer applicable. You are working a job that is considered permenant or "usual and customary".....if you and your ER wish to change your job functions, you'd have to qualify for that job, based on experience, and health considerations just as any other EE making application. You are in a "as is" condition, the same a any new hire.

Whether you have protection or consideration under ADA would only be determined if you have a "disability" in that definition. Not all work injuries are "disability" under ADA.
For "reasonable accommodation" under ADA, you must have a condition that affects one or more life activities...you do at work, but not in your daily life activities. Could be a trigger there.

[synesthesia56]

Ahh... Fog is lifting now.

Employer is insisting I continue to sign a work restriction agreement that follows the work comp doctors guidelines, years after my condition has resolved... They are saying these are part of the stipulations of the award/settlement. The award/settlement stipulations actually only state the QME's generic guidelines apply, but employer is using the more restrictive guidelines of the work comp doctor I saw post QME/award.

They are now saying when the medical devices that caused my initial injury come to my unit, they may, (or may not!) authorize a return to a doctor to have my restrictions evaluated.

It seems regardless of what the doctors say now, I am bound by the work restriction agreement I have signed at work that apparently is indefinite regarding its end point.

[CAIW]

Once you have recovered to a stable condition, MMI has been reached, you are rated for PD/WPI, that number is used to calculate the indemnity benefits due.

The PTP or PQME report does contain restrictions, or recommendation on the type of work or activities you should avoid, but those limitations are also to your daily living activities, or any other job you may apply for.

Once you are MMI, and your ER makes a valid job offer within those restrictions, which are technically "permenant", after the 12 months required in the labor code, any future job negotiations are between you and your ER... the WC claim has NO bearing or relationship to your continued employment.

They are now saying when the medical devices that caused my initial injury come to my unit, they may, (or may not!) authorize a return to a doctor to have my restrictions evaluated.

If your ER wishes a "fit for duty" evaluation, it is at their expense. They have provided a job for you "as is" when you returned to work. (AS IS being with those restrictions.)

It's up to you to sign a agreement or not. There is no legal requirement. The job you are performing, is the job you were hired to do. Claim or no claim at this point.

Regardless of what forms or agreement you may sign, you CANNOT sign away your legal rights to file a DWC form 1 in the event of further/reinjury/new injury. The law is the law, no one can sign away their rights under the law.

[synesthesia56]

Can't thank you enough for your help CAIW... Think I got it now.

I spoze I'll just sign their bloody restriction agreement for now to keep the peace and keep the wonderful info you have provided on ice for when I need to do battle with the dreaded Catburt down the road.

A shame they can't just explain things properly in the first place! Would save a lot of wear and tear on all our keyboards.

I'm sure many others will see this post and be helped by it...

Thank You so Much!

God Bless, & Cheers!

[Betty3]

Very nice & deserved compliment, CAIW.

[CAIW]

Thank you synesthesia56 and Betty for your kind words.
The WC system in all states is more than ...confusing.
I'm sorry for the difficulties you are having with your ER.
Many times these issues are simply due to the over indulgence of ER's trying to protect their interests...which is to be expected. More so however is ignorance to what the statues/codes etc actually say about what they are liable for or where the responsibility lies.

Good luck to you...trust this too will eventually resolve amicably.