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billA new bill relating to workers’ compensation has been introduced in the Ky. House. Plaintiff attorneys express concern about the bill and its potential reduction of injured worker benefits, especially medical benefits.  It, in part, addresses recent case law regarding the statute of limitations for reopening a claim and payment of TTD benefits. The bill further addresses attorney fees, subrogation and a pharmaceutical formulary, among other topics.

A summary of the bill with a link to the complete text is set forth below:

HB 296/LM (BR 1013) – A. Koenig, B. Rowland, J. DeCesare, M. Dossett

AN ACT relating to workers’ compensation.
Amend KRS 342.020 to limit the obligation to pay medical benefits indefinitely for certain permanent partial disabilities; limit medical benefits to age 70 or four years after date of injury, whichever is later, except for permanent total awards or awards involving prosthetic devices which continue for as long as the employee is disabled; limit the number of urine drug screens for which an employer, insurer, or payment obligor is required to pay; amend KRS 342.035 to require the commissioner of the Department of Workers’ Claims to develop, adopt, and implement treatment guidelines and a pharmaceutical formulary on or before December 31, 2018; amend KRS 342.040 to reduce the amount of interest paid on awards; amend KRS 342.125 to clarify that the four-year reopening window begins only from the date of the original order granting or denying benefits; amend KRS 342.185 to provide a statute of repose for cumulative trauma claims; amend KRS 342.320 to increase limitation on attorney’s fees to $18,000; amend KRS 342.700 to extend subrogation recovery of medical expenses and delete reference to legal fees and expense; amend KRS 342.730 to allow payment of temporary total disability benefits to be offset for net wages paid to an employee during a period of light-duty work or work in an alternative job position; amend KRS 342.990 to conform; specify the applicability of substantive changes to claims arising on or after effective date of Act and remedial changes to all claims irrespective of injury date.

Read the Lexington-Herald Leader story on the bill.

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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.

 

 


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.

The Kentucky Department of Workers’ Claims has released the benefits schedule for 2012.  Click here to view the schedule.

The DWC has released the workers’ compensation benefit schedule for 2009.  You can access the schedule at Roland Niemi Law Group’s website.

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