I am often asked about light duty job offers, what needs to be in them, and do they have to be in writing. Here’s a few things to consider:
- The law does not require the offer to be in writing to be a valid job offer BUT invariably the claimant may deny being offered the position and written documentation is our best proof for trial.
- The light duty offer does not have to be sent certified mail. In today’s day and age, I recommend several methods of alerting the claimant. Mailing a copy of course but in addition also emailing it if they have a personal email. Texting it to them as well is valid if they already text with the employer. A phone call or voicemail to let them know it is coming in the mail and when the job starts is not a bad idea either, but the voicemail alone without written documentation can be flimsy proof for us. Certified mail is proof they received it, but so is an email or text response back from the claimant. (Screen shot any texts and add to the personnel file)
- The claimant does not have to sign it to accept or refuse the offer but I do like it when we get a signed refusal. I have seen some letters give a contact name and information as to who the claimant will be reporting to for the position. That is a good idea that way the claimant can contact someone if they are refusing.
- The letter needs to spell out a few things. What day and time the light duty position starts, and that it is within the work restrictions from the authorized treating doctor. You don’t need to spell out the restrictions specifically, but if you do, add a disclaimer that if the restrictions change please advise immediately and we will modify the job accordingly. It should have some basic information about the light duty job so the claimant cannot claim it did not exist.
If the claimant refuses the job, it is our burden to prove that light duty was available for every week we are denying TPD. I have seen some letters state that the light duty will remain available until they are released full duty, and that is what we would have to prove at trial so it helps.
If possible, the letter should spell out how many hours a week and the rate of pay. We can only deny TPD/deem the earnings for what was refused. For example, if the only offer is 20 hours a week at $10 an hour, we may still owe some TPD based on the 80%/80% formula. We can only deny TPD for what was offered, and we still have to pay what we would have paid if the claimant had shown up for the light duty job. Spelling out what was offered clears that issue up as to exactly what/how much can be denied.
- It is the Employer/Carrier’s burden to be proactive and reach out and offer light duty, even if we haven’t heard from the claimant.
- Terminating the claimant’s employment for a no call/no show can be an expensive decision in the long run and could lead to a 440.205 retaliation claim. I recommend discussing that with your defense attorney, who undoubtedly is on our firm because you are smart.
Morgan Indek | Managing Partner