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Injured, but told to Return to Work

Many times during our practice we encounter a situation where the injured worker believes that they cannot return to work, but their treating physician had releases them to return to work. Typically, in such situations, the physician has returned them to work in a “modified duty” capacity – meaning that they have been provided certain restrictions (or modifications) that the physician believes should be adhered to if they are to return to work.

On most of these occasions the injured employee says “I’m not going to go back to work”, “I can’t do that job even with those restrictions”, “I’m not ready”. It is at that point that they ask me for my advice. My typical response is that if they do not return to work and at least try to see if they can do the modified duty, the employer may be able to terminate them as having abandoned their job. I then indicate, in my opinion, they should try to do the modified job even if only for a brief time. If they are at work for 2 hours, all day, 2 days, or as long as they can tolerate without making their injuries worse – At that point they can go to their supervisor and indicate that they tried the modified duty and it is jut too painful to continue and indicate they need to return to their physician.

The result, then, is that they have followed the physician’s instructions, they have cooperated with the employer, they tried (in good faith) to return to work and they have shown their employer that they do wish to return to work. This typically prevents the employer, at least at that specific point in the litigation, from terminating the injured worker’s employment – leaving their ability to return to work as an issue to be dealt with at a later time.

Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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