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Webb v. Shoe City9/20/2000
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We are persuaded of the soundness of weighing such factors.
The trial court in the present case found that the plaintiff did not have a meaningful return to work and awarded her four and one-half (4.5) times the medical impairment rating of 15 percent, or 67.5 percent vocational disability. In a letter to the attorneys outlining her findings, the trial judge stated:
Defendant did not effectively offer to return plaintiff to any job . A letter was sent but to the wrong address. Even though Plaintiff came to talk with a representative of Defendant, because she was still under medical treatment, he did not offer her a job at that time. There was no proof that Defendant ever conveyed to Plaintiff an offer of employment. They only stated that they were willing to re-employ her, not that this offer was made to laintiff. Therefore the 2.5 multiplier does not apply. (emphasis added).
We must respectfully disagree with the trial court's findings. The questions that we must ask ourselves in the present case are how far an employer must go to return a restricted employee to the workforce, and what should be reasonably expected of the employee in returning to work? It was clearly conveyed to the plaintiff at the February 6, 1996, meeting with Mr. Bowser that she could return to work once she was released by her doctor. Mr. Bowser's handwritten notes made close to the time of the meeting with the plaintiff reflect that Dr. Friedman would release the plaintiff to return to work after she completed a work-hardening program. She was to contact Mr. Bowser on February 12, 1996, after completing the program. The plaintiff denied that she agreed to contact Mr. Bowser, but it seems reasonable to expect her to have done so at some point after she was released for work. The plaintiff knew after the February 6 meeting that Mr. Bowser was waiting for her MRI results and word from her doctor specifying work restrictions before offering her a specific position. She had also been in management with the company for several years and was used to scheduling and directing employees. A reasonable person with that experience who wanted to return to work would have or should have contacted the company when the MRI results came in and her restrictions were determined by her doctor. The plaintiff denied receiving either letter from the company concerning her re-employment, but there is no dispute that the letter dated July 11, 1996, was sent to the correct address. The company's efforts were reasonably designed to return the plaintiff to work when her doctor said she was ready and under the restrictions ordered by him. Mr. Bowser's testimony and notes from the meeting with the plaintiff show that he was prepared to offer the plaintiff an assistant manager position at store #2722 but was unable to do so at that time because of the note from Dr. Friedman. Mr. Bowser testified that the plaintiff also told him she could not return to work at that time. Apparently, Dr. Friedman released her to return to work on February 27, 1996, but the plaintiff never contacted the company. The company attempted to contact her by letter in March and July of that year but got no response.
We do not believe that an employer should be required to relentlessly pursue an injured employee in order to return the employee to work. At some point, the employee has to take the initiative to go back to work, and that point is logically when he or she is released to go back to work by the doctor. We find, under the circumstances of this case, that the plaintiff had an obligation to notify the employer of her release by the doctor and of her work restrictions. The company had already left that door open for the plaintiff but never
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