postscript2
Senior Member
Posts: 437
Joined: Sep 2006
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Thursday February 26, 2009 1:33 PM
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This IS an unfortunate, yet very common occurance with the new rating schedule. There are a few things to consider.
1) Did your employer make you an offer of permanent modified/alternative or regular work within 60 days of reaching MMI (Maximum Medical Improvement)? If not, then your (small) percentage of disability would be increased by 15% per week. If they did make the "offer" they only have to accommodate your employment for a period of 1 year and your permanent disability would be decreased by 15% per week. But with such a small percentage you wouldn't meet either threshold as the first 60 days don't count for the increase/decrease. No guarantees after that, legally and per the labor code.
2) Did the AME state that your work restrictions were "prophylactic?" This means that they were issued on a "precautionary" basis. Sort of contradicts the OK to return to "regular work." Do you know if the AME was provided a "job description" for your current employer???
3) Fractures make the bone weak and have a high propensity for re-occurance, so unless you want to drop your claim completely, I would consider whether or not to hold on to the future medical care.
4) You are absolutely correct that your attorney isn't going to be willing to work for nothing, so no small wonder he/she isn't moving too quickly here. You could dismiss your attorney and "sub-out" representing yourself. This "should" allow you to return to the AME.
5) You should really weigh out all of the consequences and options here before making a decision. I mean, what if, God forbid, you re-fracture that foot and it causes you to fall, injuring your knee, straining your back, or arm, etc. Under the laws you would be able to claim the fall either as a new injury/incident-- a compensable consequence -- and/or file for "new and further disability," within 5 years of the date of your original injury. All of which would take a doctor's opinion.
I believe that our employer is protecting themselves against letting you work regular duty with this heavy restriction--in fact they are required to honor it, so that they aren't dinged later for "willfully" knowing of your restriction and allowing you to continue working.
I really feel for you, this happens all of the time. I once handled a claim for a fire fighter who had a knee surgery and it only rated 3%. So it goes.
I'm no "legal eagle," as I'm not an attorney, but have been a Claims Adjuster for over 20 years.
Bottom line: I would highly encourage you to call your Information and Assistance Officer to go over what I have written you and about your options. Don't ever take advice on a forum as the "gospel," as we all have our different opinions.
At any rate, good luck and let us know how you are doing...
LCS 
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