Arnold v. NESCO Resource
, Claim No. 201168484 (Ky. WCB 2013): Menial work does not constitute a “return to employment” under KRS 342.0011(11)(a) and an employer is not entitled to a credit for bona fide wages paid for even menial work in the absence of proof the wages were paid  in lieu of workers’ compensation benefits.

Following a work-related injury, Arnold was off work from November 4, 2011 through December 5, 2011 and was also off work from March 27, 2012 through April 12, 2012, although he received salary continuance for both periods.  From December 6, 2011 through March 26, 2012 and from April 13, 2012 through July 18, 2012, Arnold was essentially forced to returned to work, prior to attaining MMI, at a modified duty position, a position that found him essentially performing only menial tasks or sitting idle in a room on the employer’s premises.  On appeal to the Workers’ Compensation Board, Arnold argued his entitlement to TTD benefits for the continuous period of December 3, 2011 through July 18, 2012.

The Board agreed with him, relying on Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), and finding the menial work did not constitute a return to customary employment as required by Wise to qualify as a return to employment under KRS 342.0011(11)(a).  Therefore, even with the return to work, Arnold was still entitled to TTD benefits.

The employer was equally denied a credit for the salary continuance previously paid during Arnold’s period off work. Deferring to the ALJ’s assessment of the wages earned under the modified duty program as bona fide wages, the Court determined that under Millersburg Military institute v. Puckett, 260 S.W.3d 339 (Ky. 2008) the employer was not entitled to a credit as there was no evidence the employer intended to pay them in lieu of workers’ compensation benefits. The credit for the wage continuation was also denied as KRS 342.730(6) does not provide a credit for such.

COMMENT:  The employer should have known better than to attempt a circumvention of KRS 342.0011(11)(a) with a forced return to work in a position that essentially required the claimant to do nothing.  That type of return to work is the textbook example Wise sets forth for failing to meet the return to employment requirement for termination of TTD.

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