WHY A PROMISE OF YOUR OLD JOB BACK MAY BE A WOLF IN SHEEP’S CLOTHING
You have worked on boats or rigs for years and you have an injury. The first thing you want is to return to work as soon as you can. The doctors are telling you that a surgery may be needed, or you may have even had a surgery already performed. The bills may be starting to pile up, or you’re tired of getting those checks every two weeks from the company and just want to get back to work.
And your company is telling you that they ‘need you to get released because they can’t hold your position open too much longer’. All you hear is, “We really want to get you back to work as quick as we can” or “We really need you back…when will the doctor release you?” or “We have a great new position for you…just get a full release from your doctor and you are good to go!” But is this what it seems?
Your company may be a ‘good’ company and you may have worked for them for a long time. Some of your best friends may be with the company. Hearing this from an attorney may make you skeptical and you may be inclined to dismiss this article. But think about this other side of what is going on. First, let me give you some background of how your maritime claim works.
RETURNING TO WORK CAN HURT YOUR CLAIM
Why does it matter to your company if you get back to work now or later? How could it possibly hurt your claim to go back to work ‘just to try it’?
Assuming you are what the law calls a ‘seaman’ at the time of your accident, then you have the right to file a claim seeking at least three things:
IF YOUR COMPANY IS AT FAULT, THEY OWE YOU COMPENSATION
So, who pays you these amounts? Under the law, if your company or any of your co-workers did anything wrong that caused or contributed to your accident, then your company (or usually its insurance company) would be assigned a percentage of fault for the role they played in your accident. This can be any percentage from 0% up to 100%.
Let’s say your company is 40% at fault because you slipped on a poorly maintained deck area of your vessel or rig, then your company (again, usually its insurance company, so you don’t have to worry about financially harming your company, a concern some of our clients have) legally owes you 40% of your total damages caused by your accident and injury. Let’s use some real numbers as an example.
AN EXAMPLE OF HOW MARITIME INJURIES PLAY OUT
Let’s say, for example, you have a 35-year-old offshore tug captain (we’ll call him Johnny) who has worked for his large tugboat company for more than 10 years. One day while he is on the back deck, he slips in oil leaking from a wench. He had filed paperwork weeks before about this issue, but the company never fixed it.
His lower back is badly injured and he has a two-level fusion that his company’s insurance pays for while he’s out of work. The surgery helped but didn’t completely fix his back. He is approaching his final doctor’s appointment and suspects his doctor will give him some form of a release at that time. The company has been calling and telling Johnny that ‘they need him back’ and he ‘just has to get a full release and his old job is his’. What’s going on here? Is this good for Johnny? This could basically play out in two different ways.
NOT GOING BACK TO WORK & RESTRICTING ACTIVITIES
First, let’s assume Johnny explains to the doctor that his back is not great, he is still in pain and can’t do nearly what he used to do. His doctor is likely to recommend that he does not go back to work and will likely restrict his activities to some degree.
Assuming that he has filed a claim against his company for failing to fix the leaking wench, he’s still entitled to compensation.
Let’s add up his damages:
So now he has damages of possibly $3,000,000 or more due to his injury.
What’s this mean to the company and it’s insurance company? Well, since the company failed to fix the wench, they probably bear most of the responsibility for the accident. Assuming 70% responsibility on the company, then Johnny is entitled to more than $2,000,000 in damages. And the money he receives is tax-free since it’s due to a maritime personal injury.
GOING BACK TO WORK WITH A FULL MEDICAL RELEASE
Now let’s see what happens if Johnny talks his doctor into giving him a full or almost-full release. Sure, his back still hurts, but whose doesn’t these days? And the job is so good, he really needs to get back to work. The company is saying his old spot is still open so getting that release is the best thing for him.
After getting the doctor to release Johnny with no or few restrictions, his claim looks something like this now:
So now the damages he suffered due to the company’s fault total $150,000 to $250,000 or so. The amount the company’s insurer could have to pay (assuming 70% again as the fault of the company for not fixing the wench) is now down to an amazingly low $105,000 to $175,000.
THE DANGER OF FULL RELEASES & GOING BACK TO WORK
But here’s where the company’s offer to ‘get you back to work’ really takes a bite out of you. Almost all companies will insist on the injured worker entering into a full release before they are allowed to ‘get back to work’. They use lots of phrases such as ‘we just have to close out this claim before we can get you back on the boats’, or ‘insurance requires that we settle up with you since you have been released’.
What your company does want is the ability to argue that you recovered from your injury and you could go back to making the same amount of money you used to make before your injury. And to get this, your company will rush you back to work, insist you get a full duty release and keep you employed for at least a few months to build a good paper trail that can be used against you later.
Here are some things to pay careful attention to:
All of these are signs that the company is more focused on rushing you back to work than getting all the testing done to determine how bad your injury may be.
Per the example above, when Johnny tries to ‘settle up’ with his company before he goes back to work and after he has his doctor release, a normal offer may be $35,000 to $50,000 based on his release to vessel work as explained above. But he doesn’t care, he just wants his job back. He takes the money and signs the release.
You can probably guess what can happen at this point. Johnny’s back may give out on him within a few months of being back at work. Or his company may red flag him and basically run him off or simply lay him off after a few months. Where is he now?
He doesn’t any claim since (1) he got a full medical release, (2) he returned to the boats, and (3) he even signed a release with his company. But even if he didn’t sign a release, he still has serious problems with his claim. Now that he has received a release AND has returned to work, he has little to no wage loss claim. And his pain can’t be too bad since he returned to work.
Here’s the bottom line. The net money he got in his pocket was likely $40,000 or so for the release, and another $65,000 BEFORE taxes for the six months he stayed with the company after he went back to work. That’s a total of maybe $80,000 or so after taxes in his pocket.
What a difference it would have been if he had simply pursued his claim properly. Even after attorney fees he still would have received 10 times more money in his pocket. AND if he ultimately healed up better, he may have been able to then get a full release and return to some form of maritime work. Putting things in this order would have better protected him.
Hopefully, you can now see why most maritime companies have a very large financial interest in getting an injured worker back to work as soon as possible. That doctor’s release plays such a key role in all this. Understand what it may really mean for your financial future. Call us to talk about your situation and whether or not returning to work is the best thing for you to do.