Is return to work an all-or-nothing proposition? NY court says no, p2Friday, January 9, 2015
We are continuing our discussion of a New York man’s dispute with his former employer over workers’ compensation benefits. The employer accused the man of voluntarily withdrawing from the workforce by turning down a light-duty assignment. The employer asked the worker to be cleared by the employer’s doctor and report for work within 24 hours. The worker could not comply for a few reasons.
First, the worker knew from his doctor as well as the workers’ comp office that he should not return to work before his official medical clearance date. Second, he had already made an appointment with his own doctor on that day. (Remember, workers’ comp claims can involve multiple physicians offering opinions that favor the employer’s interest in closing the claim as quickly as possible; the opinion of the employee’s own doctor is generally based on the employee’s health and continued recovery.)
The employer didn’t take “no” for an answer. The company suspended the worker; if he attempted to return to work, the employer added, he would be arrested for trespassing. In short order, the employer said the worker had abandoned his job and fired him. The company then told the workers’ comp office that the worker had voluntarily withdrawn from the labor market.
The New York Workers’ Compensation Board and the state appellate court reviewed the evidence and found that the employer could not support its argument with medical evidence that the worker was capable of returning to work on 24-hours notice. The employer could not justify the charge of job abandonment, either: When the employee was able to return to work, he understood that he would be arrested if he set foot on company property.
The worker prevailed. The court even ordered the company to pay the costs of the appeal.
The Workcomp Writer, “New York Court Finds Worker’s Refusal of Light-Work Justified,” Thomas A. Robinson, Dec. 30, 2014
Jesco v. Norampac Mfg. Co., No. 518229, 2014 WL 7287995 (N.Y. App. Div. Dec. 24, 2014), via WestlawNext