Policy Bulletin No. 1993-02

Section 21.8 Workers' Compensation Leave - April 1, 1993

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TO: State Departments and Agencies
FROM: Josephine L. Gambino, Commissioner
SUBJECT: State/Council 82 Workers' Compensation Leave Program - 1991-1995 Negotiated Agreements for Security Services and Security Supervisors Units

As stated in our October 22, 1992, Policy Bulletin 92-03 on Attendance and Leave items in the 1991-95 agreements with Council 82, the workers' compensation benefits have changed; these are the guidelines for the Workers' Compensation Leave Benefit Program contained in the Security Services Unit and the Security Supervisors Unit contracts. The implementation date for this new benefit is April 15, 1993. Accidents occurring on or after that date are subject to these guidelines. Accidents occurring prior to April 15, 1993, are subject to the provisions of the 1988-91 contracts.

This material has been prepared to assist you in implementing the revised workers' compensation provisions. If you have any questions, contact the Employee Relations Section of the Department of Civil Service at (518) 457-5167.

Attachments [Physical Capabilities Form and Benefit Election Form]

P-2 INTRODUCTION

The significant change in the workers' compensation benefits for injuries occurring on or after April 15, 1993, for Security Services and Security Supervisors Units' employees, is the ability of an employee to choose Workers' Compensation Law benefits or the Leave Benefit Program provided in the contract. If the contractual benefits are chosen, the individual agrees to be part of a medical evaluation process designed to return individuals to work on limited or light duty prior to full recovery.

The medical evaluation process set up in connection with this benefit is available to management for all Council 82-represented employees who apply for workers' compensation benefits, regardless of the date of the accident, to verify ongoing disability. The medical examinations conducted under this evaluation process do not replace current requirements, but are in addition to any medical reports required by agencies in connection with granting leave benefits or by the State Insurance Fund (SIF) in connection with their responsibilities to provide benefits pursuant to the Workers' Compensation Law.

Initially, SIF will function as the third party administrator for the group of physicians that will be conducting the examinations under this medical evaluation process. A request for proposal is being developed and if another vendor is selected in the future, a memorandum will be issued announcing the effective date and any procedural changes that become necessary.

Only employees whose accidents occur on or after April 15, 1993, are subject to the limited duty portion of the new Leave Benefit Program on a mandatory basis. Other Council 82-represented employees who are recovering from any temporary disability, whether caused by an occupational or ordinary accident or illness, can be offered limited duty under this process, but cannot be required to accept it.

An employee who elects Workers' Compensation Law coverage only, should be placed on leave without pay for all absences related to the workers' compensation accident. This is a regular leave without pay with no additional benefits accruing to the individual. The employee continues to be subject to Section 71 of the Civil Service Law and is entitled to a minimum of one cumulative year of absence and due process proceedings pursuant to Rule 5.9.

An employee who elects to receive benefits under the Workers' Compensation Leave Benefit Program provided in Article 14.9 must...

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...participate in the medical evaluation and limited duty components of the Program to receive leave benefits. The leave benefit component of the Program has not been changed from the 1988-1991 agreements and continues to be administered in accordance with the explanation provided in the Attendance and Leave Manual, Section 21.8, pp. C10-C19. [C-10 through C-19]

FOR EACH SEPARATE ACCIDENT EMPLOYEES MUST ELECT WHICH BENEFIT THEY WANT AT THE TIME THEY REPORT THE ACCIDENT, OR AS SOON THEREAFTER AS POSSIBLE, ON FORMS PROVIDED BY THE STATE. A sample form is attached for agencies to duplicate and use for this purpose. Employees are allowed to make one selection per injury; once a benefit choice has been made, the employee is subject to that benefit for all absences related to that injury.

BENEFIT DESCRIPTION: Workers' Compensation Leave Benefit Program

The Workers' Compensation Leave Benefit Program for the Security Services and Security Supervisors Units has three components: the leave benefits as applicable to workers' compensation related absences, the medical evaluation process, and the assignment of limited duty to qualified employees.

I. Leave Benefits

As identified in the introduction above, the workers' compensation leave benefits have not been changed except to require that employees participate in the medical evaluation and limited duty components to be eligible for these leave benefits. Employees who elect participation in the Leave Benefit Program and whose absences are accepted by management as workers' compensation are entitled to a cumulative total of six months of leave with pay without charge to credits, followed by use of all available leave credits, by use of sick leave at half-pay (if eligible) and finally, by leave without pay, subject to the provisions of Section 71 of the Civil Service Law and Rule 5.9.

If management denies leave benefits pursuant to the reasons authorized by the negotiated agreements, the employee will either (1) be covered by ordinary disability benefits if the issue is that the disability is not job related, or (2) the employee will be placed on leave without pay if management believes the individual could report for work, subject to resolution of the claim. This represents no change from the administration of workers' compensation leave for accidents occurring prior to April 15, 1993, pursuant to the terms of the 1988-91 agreements.

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II. Medical Evaluation Process

Every accident on or after April 15, 1993, for which the employee elects the Leave Benefit Program and has lost time beyond two full workdays after the date of the accident will be reviewed by management for the purpose of determining the need to schedule a medical evaluation. Agencies should request a medical evaluation under any of the following circumstances:

• the initial prognosis indicates that the absence will last beyond six weeks. In this case the medical evaluation should be scheduled at about five weeks of absence.
• the individual's prognosis indicates that the absence will be less than six weeks, but the employee does not return to work on the specified date. The medical evaluation should be scheduled as soon as possible after the employee fails to return.
• whenever management has reason to believe the individual may be eligible for a limited duty assignment because of the nature of the injury and/or the medical information received.

The employing agency will contact the local SIF representative and request a "Security Medical Evaluation" whenever it is determined that such an evaluation is needed. The State Insurance Fund has agreed to schedule these examinations within five work days of receiving the request.

The employing agency is expected to provide the SIF with the following documentation in connection with such a request:

• current medical reports and C-2, if not already provided.
• current mailing address and telephone number of employee.
• agency contact person and telephone and telefax numbers.

This information should be "faxed" to SIF to avoid delays in scheduling medical examinations.

The SIF will notify the employee and the employer of the date, time and location of the examination. If an employee is unable to attend a scheduled medical examination, he/she is responsible for notifying the employer, in addition to the...

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...SIF, and should be so advised at the time the examination is scheduled. SIF will also notify the agency if an employee does not report for a scheduled examination. The agency will advise SIF whether or not the examination should be rescheduled. Employees who do not attend these scheduled medical examinations will be subject to appropriate administrative action.

Reasonable and necessary travel expenses incurred by employees attending these examinations will be paid by SIF in accordance with their normal procedures for travel expense reimbursement. Questions on travel expenses should be directed to the agency's usual SIF contact person.

The medical examination will be detailed enough to allow the evaluating physician to determine the employee's level of disability and prognosis for full recovery. In addition, if the level of disability is found to be at 50 percent or less, the evaluating physician will provide a statement of capabilities/limitations so that the agency has sufficient information to establish a limited duty assignment for the employee. A copy of the Estimated Physical Capabilities Form to be used for this purpose is attached. The limited duty should be assigned for the duration of the disability or 45 days, whichever is less.

The SIF will make the results of the medical evaluation, including the limitations statement, available to the employer, within two workdays of the examination. The evaluating physician's report, including the statement of limitations/capabilities, if prepared, will be provided to the employee's treating physician also.

If the employee is more than 50 percent disabled, he/she will continue to receive the leave benefits that are appropriate for his/her length of absence.

If the employee is 50 percent or less disabled, the agency must notify the employee whether he/she is being assigned to limited duty or being allowed to continue the absence receiving the benefits appropriate to the length of absence. Details concerning these assignments are in III, below.

Based on the prognosis given by the evaluating physician and such physician's recommendation, periodic reevaluations should be scheduled until such time as the employee is eligible for a limited duty assignment or fully recovers and is returned to work. Each time such an examination is scheduled, the time...

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...frames described above for scheduling and receipt of reports will be applied. The employing agencies are directed to discuss reevaluations with the local SIF representative upon completion of the initial evaluation and at any time they believe such an evaluation is needed.

III. Limited Duty Assignments

A. Administration

When an employee's level of disability is classified at 50 percent or less, the individual is qualified for a limited duty assignment.

This level of disability determination is made by the State Insurance Fund based on medical information available to that agency. The medical documentation on which the determination is based may have been provided by the attending physician, by an evaluating physician or by a consulting physician.

Medical documentation will be required by management each time an employee is assigned to limited duty. Although the length of time the employee will be partially disabled is not an eligibility criterion for limited duty, management needs the expected full recovery date in order to design the limited duty assignment. Agencies may not approve limited duty assignments in blocks of time greater than 45 days, but based on the employee's prognosis, can assign shorter periods. While there are no restrictions on the number of times an employee can be assigned limited duty in blocks of 45 calendar days or less, agencies should extend additional periods of limited duty to employees in a uniform manner.

Each time a period of limited duty expires, the employee's medical status should be reviewed by management. This review will usually be based on the ongoing medical information provided by the employee during the limited duty assignment, but may involve another medical evaluation through the SIF if management is not satisfied with the available documentation. Based on this review, the employee will be returned to full duty, assigned an additional block of limited duty or returned to the appropriate leave status.

An employee assigned limited duty is returned to the payroll and is entitled to receive regular salary for the...

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...period of the limited duty assignment. Eligibility for added salary factors is the same as that for an employee performing full duties. In addition, time spent on a limited duty assignment counts as time served for the purpose of completing an employee's probationary period. Employees on limited duty assignments are in full-pay status and are eligible to earn biweekly leave accruals, observe holidays, earn holiday pay or time for work on a holiday and otherwise are to be treated, for attendance and leave purposes, as any other employee at work performing regular duties.

Employees who decline limited duty assignments will be placed on leave without pay and referred to the SIF for appropriate benefit determinations.

Employees who are not offered limited duty assignments continue on the workers' compensation leave benefits appropriate to their length of absence.

During a period of limited duty an employee will be expected to provide ongoing medical documentation at intervals specified by the appointing authority supporting his/her need for continuation of the limited duty assignment and will also be required to provide medical documentation attesting to full recovery before return to full duties.

B. Assignments

A limited duty assignment must reflect the employee's physical condition and be within the following parameters:

1. Limited duty assignments must be developed within the employee's title and current work location. Work location as used in this context is the existing definition of work location within each affected agency, not necessarily the exact location of the employee's bid job, but rather the geographic area within which employees bid on particular assignments. Work location policies for each agency/ facility, as they relate to limited duty assignments, should be discussed at appropriate level labor/management meetings.
2. Employees on limited duty assignments may not be counted as part of minimum staffing levels. That...

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...is, an employee working limited duty cannot be counted as staff in management decisions concerning whether or not there are a sufficient number of employees available.

3. No employee will be bumped from a bid job or be required to work in any job other than his/her bid job to provide limited duty assignments. In other words, no employee at work performing his/her regular assignment can be displaced solely to create a spot for a person returning to work on limited duty.
4. No bid jobs will be abolished to create limited duty assignments. In other words, if an ongoing full-time regular assignment is vacated, for any reason, management cannot eliminate this position solely for the purpose of making the duties available to employees on limited duty. Of course, this has no impact on management's right to direct
   and deploy the work force as programmatic and/or operational needs change.
5. Seniority selection for resource assignments, where they exist by labor/management agreement, shall not be changed to accommodate limited duty assignments. Currently, agreements to establish such assignments exist only in the Department of Correctional
   Services.
6. Every effort will be made to maintain the employee's squad and shift when assigned to limited duty. If the employee's physical limitations are such that management is not able to develop an assignment on the same squad or shift, however, the employee should be given as much advance notice of the change as possible. In addition, if assignment to more than one squad or shift is possible, the employee's preference should be considered.

Items 3 and 4 above are subject to resolution under Article 7 of the collective bargaining agreements up to and including Step 3 of the grievance procedure.

Through a review of past workers' compensation experience, agencies may be able to develop an inventory of potential limited duty tasks that can be combined into an assignment once the employee's limitations are known.

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Management is certainly not limited, however, to such an inventory. Agencies are expected to make every effort to tailor each assignment to the individual employee's specific limitations. Once tasks that an employee can perform are identified, management needs to determine which tasks will be combined to establish an assignment for that individual. Some employees may perform only one task for their period of limited duty; others may be assigned a variety of tasks based on their physical limitations. It would be an unusual situation if a limited duty assignment corresponded to a regular assignment in the combination of tasks and length of the workday spent on each.

Since each limited duty assignment may be for 45 calendar days, management may design an assignment that changes over time. For example, an assignment may begin with training for a week or two and then progress to an assignment that is less sedentary for a second period of time and finally, to more physical tasks at the end of the period immediately prior to return to full duties. Assignments such as this should be explained to the employee upon return to limited duty. Management may also find it necessary to begin an assignment defined only for a portion of the 45 days, in order to return the employee to work as quickly as possible, with the understanding that the rest of the assignment would be developed and discussed with the employee prior to expiration of the initial time period.

When an employee is assigned limited duty, the following information should be provided:

• Description of the specific duties
• Location, work hours, workweek of the assignment
• The name of the supervisor, the starting and ending dates

In addition, employees should be advised that (1) limited duty assignments may be changed over the length of the assignment to reflect both changes in the employee's physical limitations as the rehabilitation process progresses and changes in the agencies needs and (2) limited duty assignments may be required for additional blocks of 45 days or less at agency discretion.

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Nothing in this policy diminishes management's right to have the employee examined by a physician selected by management as a condition of allowing the employee to return to full duties. Return to full duty at the end of a limited duty assignment is not automatic. An initial prognosis accepted by management of an employee's ability to perform full duties on a specific date does not prevent management from reconsideration should circumstances appropriately indicate.

C. Termination of Limited Duty Assignments

A limited duty assignment may be terminated prior to its expiration if it is determined, based on medical documentation satisfactory to management, that the employee is able to return to full duties earlier than the original prognosis had indicated. When the agency has medical documentation indicating full recovery, the employee should be ordered to return to full duties immediately. If the employee disputes management's finding of full recovery, the employee will be placed on leave without pay and the case will be referred to the State Insurance Fund and the Workers' Compensation Board.

[Physical Capabilities Form and Benefit Election Form]

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