Why A Promise of Your Old Job Back May Be a Wolf in Sheep’s Clothing
If you’ve worked on boats for years and you experience an injury, you’ll likely want to return to work as soon as you can. Often, doctors will tell you that surgery may be needed, or you may have already had surgery. The bills may be starting to pile up, or you’re tired of getting checks delivered every two weeks from the company, and just want to get back to work.
In this situation, your company may tell you that they need you to get released because they can’t hold your position open too much longer. Your employer may say things like, “We really want to get you back to work as quickly 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? What is your company’s actual return to work after injury policy?
Returning to Work Can Hurt Your ClaimWhy 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 or “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:
Under the law, if your company or any of your coworkers 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 legally owes you 40% of the total damages caused by your accident and injury (again, usually it’s the insurance company paying, so you don’t have to worry about financially harming your company, a concern some of our clients have). Let’s use some real numbers as an example.
Imagine having 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 or Restricting Activities
First, let’s assume Johnny explains to the doctor that his back is in poor shape. He is still in pain and can’t do nearly what he used to do. His doctor is likely to recommend that he not return 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 million or more due to his injury.
What’s this mean to the company and its 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 million in damages. And the money he receives is tax-free since it’s due to a maritime personal injury.
Now let’s see what happens if Johnny talks his doctor into giving him a full or almost-full release. He likes the job and would love to return to work. The company is saying his old spot is still open, so getting his release is a priority for him.
After getting the doctor to release Johnny with little or norestrictions, his claim looks something like this:
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 winch) is now down to an amazingly low $105,000 to $175,000.
Almost all companies 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.”
Your company wants to be able to argue that you recovered from your injury and you could go back to making the same amount of money you made before your injury. 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.
Pay close attention if your company takes any of the following actions::
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.
At this point, Johnny’s back may give out on him within a few months of being back at work. Or his company may lay him off after a few months.
In this scenario, Johnny doesn’t have any claim since:
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.
The net money he got in his pocket was likely around $40,000 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 around$80,000after taxes in his pocket.
Johnny would have seen many more benefits if he had pursued his claim properly. Even after attorney fees, he 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.
Most maritime companies have a significant financial interest in getting an injured worker back to work as soon as possible. That doctor’s release plays a key role in these situations. Understand what it may really mean for your financial future.
If you have questions about maritime injuries and how to receive fair compensation, contact a lawyer from The Young Firm or call us at 504-680-4100 to talk about your situation.