Commission Determines “Out of Work” Note is a “Light Duty” Note

 

Workers' Compensation Case Watch

In Umana v. Clark Construction Group, the claimant was injured in a work accident.  The claimant saw a doctor for his work-related injuries.  In his report, the doctor outlined the claimant’s light duty restrictions but also said “there is no light duty work available, so he remains unable to work at this time.”  In his office notes each month, the doctor repeated that because there was no light duty available, the claimant remained unable to work.  The Deputy Commissioner found that the claimant was totally disabled during those periods.

The defendants appealed.  The Commission found that the claimant was capable of light duty work during the time that the doctor said he was out of work.  The Commission read the doctor’s “predication of incapacity upon the unavailability of light work as necessarily meaning that the claimant could perform light duty if it were offered.  Indeed, we can divine no other reasonable interpretation.”  Although the doctor issued “no duty” work-status slips, his treatment notes contradicted his statement that the claimant could not work at all.  The Commission also found that the claimant was not legally eligible for employment during those periods of light duty, so he was not entitled to disability benefits during partial incapacity. 

Commissioner Marshall dissented, saying that the claimant could not have reasonably and objectively perceived an ability to return to gainful employment.  Commissioner Marshall interpreted the doctor’s office notes to mean “that if the claimant could not entertain a dialogue regarding possible accommodations with his current employer, he should remain out of work.”

Thumbnail_300x300_Jessica TrivizasJessica Hacker Trivizas is a litigator who focuses her practice on workers’ compensation, defending employers and carriers at the trial and appellate levels. She works with insurance carriers, third-party administrators, and self-insureds. Jessica worked on some of the largest settlements in the country, including the historic NFL Concussion Settlement Program, the BP Oil Spill settlement, and the Reglan/MCP Settlement Program. Her background on these mass claims resolution programs gives her unique insight into the work of claims adjusters.