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THE RETURN TO WORK TRAP 2015

By Scott B. Elkind, Esq.

Disability insurers focus on the issue of return to work in order to gain an advantage over claimants.

The first way the issue of return to work is used is the “return to work estimate” requested from a treatment provider. This will be requested on an ordinary inquiry form and the date stated by the provider will be viewed as gospel. The insurer will not make another inquiry to the treatment provider and will assume that the claimant will return to work by that date regardless of an intervening diagnoses or treatment during the interim period. Such conduct is patently unfair to claimants and is clearly arbitrary.

The second way a return to work is employed by defense insurers is far more devious. It is common for claimants become financially desperate or have their jobs threatened due to prolonged absence due to their disability. Many claimants will succumb to this pressure and they will inquire about returning to their own jobs. Employers will not allow the employee to return to work unless they have a note from their treatment provider stating that they are fit for duty. This note will be utilized by the disability insurer to terminate benefits even if the employee is openly struggling to work. The employer will often begin documenting work deficiencies in order to fire the claimant. Once the claimant is fired, they can no longer make a claim for any kind of benefits. This lessens the potential for an insurance premium increase for the employer who can also hire a replacement employee at a reduced cost. This is a win-win for both the insurer and employer.

The third use of return to work is accomplished by allowing the claimant to return to a lesser paid or part-time position. The employer again will request a fit for duty slip for this purpose. This will result in a greatly reduced residual disability benefit paid by the insurer. Again, the employer will often begin documenting work deficiencies in order to fire the claimant. Once the claimant is fired, they can no longer make a claim for any kind of benefits. This lessens the potential for an insurance premium increase for the employer. But, should the claimant claim disability prior to being fired, the disability benefit is greatly reduced due to the change of job status as the “own occupation” benefit is now calculated from the lesser paid position or a part-time position.

For these reasons, a claimant should be consult a knowledgeable disability benefits attorney prior to attempting a return to work so as now to fall prey to these traps.

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