Temporary total disability (TTD) is a wage replacement benefit provided by the Bureau of Workers’ Compensation (BWC) to employees who are temporarily unable to perform the duties of their job due to a work place injury that has been recognized (“allowed”) by BWC.
TTD benefits increase the costs of the claim for the employer by increasing the reserve taken out to cover potential costs and by the corresponding impact of costs of the claim on the employer’s premiums. Accordingly, it is in the employer’s interest to reduce the period that an employee qualifies for TTD benefits in order to reduce overall BWC costs.
TTD benefits can be terminated for several reasons. The focus of this most recent Court of Appeals case is refusal of an offer of suitable work. TTD benefits may be terminated if an employee refuses a good faith offer of suitable alternative employment. Suitable employment is work that is in the employee’s physical abilities, taking into account any restrictions for lifting, pushing, pulling or other physical activities that may be required for the work. For many employers, this may be a light duty position. Employers are not under any obligation to provide light duty work, but it may make financial sense to do so in some cases, particularly in the context of a workers’ compensation claim.
In order for a good faith offer of suitable work to be a basis for terminating TTD, it must be in writing, it must describe the duties that the employee will be required to perform with enough specificity that the employee and his or her treating physician can determine whether or not the job offer meets the employee’s physical limitations. A good faith offer is one that is clearly within the employee’s limitations. At least 48 hours should be granted for the acceptance or rejection of the offer. It would be best if a job description specifying the duties is provided with the offer for the physician’s review.
The question in this case is whether it matters if the employee has a good faith reason to reject the offer. In other words, can an employee, with good reason, reject an employer’s job offer and still retain TTD benefits? The answer, is no.
Here, it was not in dispute that the offer was suitable and was made in good faith by the employer. It was therefore, a qualifying job offer sufficient to serve as a basis for terminating TTD if rejected. However, the magistrate to whom the case was assigned found that because the employee likewise had a good faith reason for rejecting the offer, the employee could retain the TTD benefits.
The Court of Appeals reversed. Whether the employee had a good faith reason to reject an offer would only be relevant to considering whether the employer’s offer was made in good faith. If the Employer makes a suitable offer in good faith, the only relevant inquiry is whether the employee is capable of doing the job. If the employee is capable, a rejection of the offer can be a basis for terminating TTD benefits. The Court reasoned that law governing TTD follows the principle that there must be a causal relationship between the work-related injury and the claimant’s inability to return to work to support an award of TTD compensation. That requirement would not exist if the claimant could reject an offer on grounds other than the inability to perform the work, even for reasons that are understandable and based in good faith.
If you have an employee who qualifies for TTD consider whether there is alternative suitable employment or light duty work available that could be offered to the employee. If so, you will want to ensure that you make a qualifying offer in writing. Contact one of the Ennis Britton Workers Compensation team members for assistance. We can help provide a qualifying offer and advise on filing a motion to terminate TTD when appropriate.