Trane Commercial Systems v. Tipton, 2014-SC-000561-WC (Ky. 2016) (to be published): Absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.
In Tipton, the Kentucky Supreme Court addresses the highly litigated issue of whether TTD can be paid even when an individual has returned to paid light-duty work.
The claimant in Tipton worked in quality control testing air conditioner units. She fell and fractured her right patella. Following the injury, her physician returned her to sedentary work with no overtime. She returned to work at a different job assembling electrical circuit boards at the same hourly rate of pay as before the injury.
The ALJ refused to award TTD benefits during the period Tipton was back at work assembling circuit boards. The Board affirmed, but the Court of Appeals reversed. After a discussion of the facts and law on the issue of TTD and the phrase “return to employment” in KRS 342.0011(11)(a), the Supreme Court reversed the Court of Appeals.
In arriving at its final holding, the Court summarized the case law on the issue and reiterated its findings and holding in Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015). In Livingood, the ALJ denied the claimant’s request for TTD during his return to light duty work finding that Livingood had performed the majority of his light duty tasks as part of his pre-injury regular-duty job. The Supreme Court affirmed the ALJ and clarified from its holding in Advance Auto Parts v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750 (Ky. Jan. 20, 2005) that “[Central Kentucky Steel v.] Wise [, 19S.W.3d 657 (Ky. 2000)]does not ‘stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD.'”
While the Trane Court reiterated that it would be unreasonable to terminate the benefits of an employee when he is released to perform only minimal work, they noted
[I]t is also not reasonable, and it does not further the purpose for paying income benefits, to pay TTD benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury.
They went on to hold:
Therefore, absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.
They went on to explain that in awarding TTD benefits to an employee who has returned to employment under such circumstances, an “ALJ must take into consideration the purpose for paying income benefits and then set forth specific evidence-based reasons for why an award of TTD benefits in addition to the employee’s wages would forward that purpose.”
Comment: While this decision will likely not completely deter litigation on the issue, it certainly serves as a definitive determination from a higher court, something the workers’ compensation community has been awaiting for some time when addressing TTD termination and the “return to employment” controversy.