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WORK RESTRICTIONS

"Work restrictions" or "preclusions" are temporary or permanent medical limitations on employment activity established by the treating physician, qualified medical examiner or agreed medical examiner. They may be prophylactic, to prevent further harm, or actual, because the worker is not currently able to do certain activities.

"[T]here may be compensable permanent disability even where there has been no loss of a member of the body or loss of its function; there is compensable permanent disability to the extent that an industrial injury causes a decrease in earning capacity or in the ability to compete in the open labor market and it is the nature of the disability and not the anatomical part of the body to which the injury was inflicted which must be considered in computing compensation." Luchini v. WCAB (1970) 7 Cal.App.3d 141.

A prophylactic work restriction is a work restriction reasonably necessary to prevent further harm. "But that is not to say that such a prophylactic restriction is to be applied retroactively, thus creating a sort of factual or legal fiction of an otherwise nonexistent previous disability or physical impairment." Gross v. WCAB (1975) 44 Cal.App. 3d 397.

"The "retroactive" prophylactic work restriction condemned so often by the courts is a restriction where the employee was never told by a doctor, before the industrial injury, to restrict his future work activities for medical reasons." O'Brien 20.14.6

While the Primary Treating Physician, Qualified or Agreed Medical Evaluator are required to discuss work restrictions (see below), they are no longer formally considered in rating permanent disability since SB 899 changed Labor Code §4660 to rely on the AMA Guides to describe and measure "the nature of the physical injury or disfigurement." Nonetheless, work restrictions are still considered when assessing permanent disability, albeit indirectly. For example, in Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal.App.4th 808, the Agreed Medical Evaluator relied heavily on work restrictions when assessing impairment, and departed from the tables in the Guides and used a percentage of the ADLs. The Court concluded, "The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. To accommodate those complex or extraordinary cases, it calls for the physician's exercise of clinical judgment to evaluate the impairment most accurately, even if that is possible only by resorting to comparable conditions described in the Guides." Work restrictions also are part of the LeBoeuf evaluation (see Vocational Experts) and proving total permanent disability under Labor Code §4662.

To determine whether a worker is entitled to a Supplemental Job Displacement Benefit, the doctor and employer must know and consider the restrictions.

See, too, Return to Work

Label Item Links Comments
Labor Code Labor Code §4658.6: "accommodating the employee’s work restrictions" LC §4658.6  
  Labor Code §4658.7: (for injuries o/a 1/1/13): "work capacities and activity restrictions" LC §4658.7  
Regulations/Rules §9785. Reporting Duties of the Primary Treating Physician: "(f) A primary treating physician shall, unless good cause is shown, within 20 days report to the claims administrator when.... (4) The employee's condition requires him or her to leave work, or requires changes in work restrictions or modifications."

§10606. Physicians' Reports as Evidence: "These reports should include where applicable: "(h) opinion as to the nature, extent, and duration of disability and work limitations, if any;"

Proposed regs
8 CCR §9785






8 CCR §10606




SJDB Regs
 
Cases See above  
Forms

Physician's Return-to-Work & Voucher Report (for date of injury o/a 1/1/13)

For earlier dates of injury, use Primary Treating Physician PR-3 & Pr-4

Work restrictions form


PR-3 and PR-4

 
Websites    
Practice Tips  If an examiner imposes work restrictions but provides a zero rating under the AMA Guides, "then one must assume that the injury has either significantly altered the affected body part or system and, most likely, has had some effect on activities of daily living. If either or both are true, then a zero percent impairment would be inappropriate."  AMA Guides: Beyond the Tables:
Interview with Charles Rondeau, Esq.
   
Articles
How to Think About Work Ability and Work Restrictions: Risk, Capacity, and Tolerance by James B. Talmage, MD, and J. Mark Melhorn, MD How to Think About Work Ability and Work Restrictions  
Magazine Articles
 
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