Thinking Outside the Disability Management Box: the Case for Modified Duty Off-site in Nebraska Comment

• Publication year: 2021

90 Nebraska L. Rev. 834. Thinking Outside the Disability Management Box: The Case for Modified Duty Off-Site in Nebraska Comment

Thinking Outside the Disability Management Box: The Case for Modified Duty Off-Site in Nebraska Comment(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 835

II. Early-Return-to-Work (ERTW) and Modified Duty Off-Site (MDOS) Programs ................................ 837
A. ERTW Programs .................................. 838
1. The California Study .......................... 839
2. ERTW is in Accord with the Law .............. 841
B. MDOS Programs .................................. 844
1. Compliance with Federal Law: ADA and FMLA ......................................... 846
2. Statutory Support for MDOS Programs ........ 847
3. Judicial Support ............................... 848
i. State ex rel. Sebring v. IndustrialCommission ................................ 848
ii. Gay v. Teleflex Automotive ................. 850
iii. Martin v. Goodwill Industries of SouthernNew Jersey, Inc. . .......................... 851
iv. What We Learn From Sebring, Gay, and Martin ..................................... 852

III. Nebraska Law Does Not Specifically Mention MDOS Programs ............................................. 853

IV. Nebraska Law Generally Supports MDOS Programs ... 854

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A. MDOS Programs Further the Purposes of the Workers' Compensation Act ....................... 855
B. The Loaned-Servant Doctrine Supports MDOS Programs ......................................... 857
1. Daniels v. Pamida, Inc. . ....................... 857
2. Additional Implications ........................ 859

V. Conclusion ............................................ 860

I. INTRODUCTION

Employers and employees alike benefit when injured employees quickly return to work following a work-related injury.(fn1) Often, this requires employers to modify current work assignments or to create alternate assignments that accommodate an employee's medical restrictions while the employee heals. The alternative assignments-or "light-duty" work-can take many forms. For example, clerical duties, secretarial responsibilities, and other alternative positions can be implemented into the company's return-to-work policy. Unfortunately, however, not all employers can accommodate injured employees. In such situations, an injured employee may sit idly at home while the employer pays his or her workers' compensation benefits. Consider the following:

(a) A city firefighter of thirty-five years injures his back while on duty. While he recovers, the fire department refuses his request to return to work in a light-duty position because none were available.(fn2)

(b) A repairman for the local water company is injured while attempting to repair a jockey pump. Due to medical restrictions preventing him from performing certain necessary functions, such as crawling, operating heavy equipment, squatting, and working at heights, the company informs him that it cannot accommodate his request to return to work in a light-duty position.(fn3)

(c) A Campbell Soup Company worker slips and falls on a wet concrete floor at work, injuring his back. The worker's physician excuses him to work in a light-duty capacity but Campbell Soup has no light-duty work available. The company pays him temporary, total disability benefits while he sits idly at home and recovers.(fn4)

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A number of industries(fn5) are prevented from enjoying the myriad benefits associated with Early-Return-to-Work (ERTW) programs. To help these industries realize those benefits, an innovative, new disability management tool has gained interest throughout the country-a Modified Duty Off-Site (MDOS) program.(fn6) Through MDOS programs, an employer can direct injured employees to a local charity or nonprofit organization for light-duty work while the employees recover.(fn7)

Although a handful of businesses in Nebraska have implemented the program,(fn8) Nebraska law is silent as to whether its Workers' Compensation Act permits MDOS programs. Neither Nebraska's revised statutes nor the Nebraska courts confirm the permissibility of MDOS programs.(fn9) Moreover, the compensation court's historically liberal protection of employees(fn10) could result in the court finding MDOS programs are more harmful to the interests of employees than beneficial.

Consequently, this Comment has a dual purpose. First, it advocates for legislative action. The Nebraska legislature must amend its workers' compensation statutes so that employers can confidently implement

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MDOS programs as part of their broader return-to-work policies. Second, even if such legislative action is not taken, the Comment demonstrates how Nebraska law still permits MDOS programs. Part II discusses ERTW programs, the supporting law for such programs, and the status of the law regarding MDOS programs nationally. Part III analyzes the status of the law in Nebraska concerning MDOS programs and-due to the absence of any clear direction-advocates for legislative action. Part IV argues that Nebraska courts should nonetheless support MDOS programs even if legislative action is not taken because Nebraska law inferentially supports the practice.

II. EARLY-RETURN-TO-WORK (ERTW) AND MODIFIED DUTY OFF-SITE (MDOS) PROGRAMS

Workplace injuries can threaten the viability of a business.(fn11) An injury can create a domino effect of losses, leaving many companies feeling powerless to control the associated costs.(fn12) In essence, injuries lead to a decreased workforce, significant harm to the injured employee's wellbeing,(fn13) increased costs associated with one or more of the existing disability benefit systems,(fn14) and other injury-related costs such as indemnity payments and medical or legal expenses.(fn15) Businesses have shut down because they could not afford these exorbitant costs.(fn16) Furthermore, such costs naturally deter prospective businesses from even starting.(fn17) Fortunately, there is a way to control, or at least minimize, these costs: ERTW programs.

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A. ERTW Programs

ERTW programs temporarily return injured employees back to the workforce in a light-duty capacity that meets the employee's medical restrictions.(fn18) In doing so, these programs provide numerous benefits, such as increasing employee morale, decreasing the costs of temporary employment, and reducing the amount of workers' compensation payments. These benefits are best illustrated by the following example.

In early 2007, saddled with nearly $10 million per year in workers' compensation costs, Ohio State University decided to significantly change its disability management policy.(fn19) The university "turned to a novel idea: moving ill and injured workers to less-demanding jobs instead of leaving them at home while they recover."(fn20) In a little over a year, the university reassigned 500 injured or ill employees-about ninety-five percent of its injured work force-to lighter-duty jobs.(fn21) Those jobs included blacking out social security numbers on documents, taking magazines to patients in the medical center, and enforcing the college's no-smoking policy.(fn22) The university avoided the workers' compensation system by paying the employees their regular pay regardless of where they were reassigned.(fn23)

At the end of its first year, the ERTW program saved Ohio State University $4 million-over twice as much as the college anticipated.(fn24) Tori Weeks, who oversaw the program, noted the $4 million figure did not even include savings from projected reductions in workers' compensation insurance premiums.(fn25) She estimated that lower premiums would produce approximately $500,000 in savings and save $1.5 million annually within five years of implementing the program.(fn26)

The program also helped maintain a happy work force.(fn27) Instead of receiving seventy-two percent of their wages while on workers' compensation, the injured employees received their regular pay.(fn28) The

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program made them feel more productive and happier.(fn29) They had less time to sit at home, worry about their injury, and wonder whether their employer would accept them upon return.(fn30) The ERTW program therefore benefited both the employer and the employee alike.

As illustrated, an ERTW program is part of a company's broader disability management. ERTW programs help lower the amount of time an injured worker is absent from the workplace, thereby enabling the employer to control costs associated with workplace injuries.(fn31) The employee likewise remains active while out of work, thereby retaining a positive "work ethic."(fn32) For instance, a 2003 study indicated that injured workers do not miss work for extended periods of time when they have management and labor support as well as a formalized, written return-to-work agreement.(fn33) In contrast, the longer employees are absent from the workplace, the less motivation they will have to return.(fn34) Additionally, ERTW programs help control an employer's workers' compensation costs by reducing the amount of time an employee is eligible for benefits.(fn35) Because of this, ERTW programs are the most important factor influencing lowered workers' compensation costs.(fn36)

1. The California Study

In 2004, because of the numerous benefits associated with return-to-work programs, California partly reformed its workers'...