Third Quarter 2017
By: Bridget Zeier
Question: Under Indiana law, can temporary transitional placement at a not-for-profit or similar employer be used to terminate TTD benefits when the injured employee has not reached MMI?
Short Answer: Yes, TTD benefits can be terminated if the employee refuses light duty work at a not-for-profit or similar employer even if the employee has not reached MMI.
Discussion: Pursuant to IC 22-3-3-7, the relevant rule states that, “Once begun, temporary total disability benefits may not be terminated by the employer unless: (1) the employee has returned to any employment; (2) the employee has died; (3) the employee has refused to undergo a medical examination under section 6 of this chapter or has refused to accept suitable employment under section 11 of this chapter.” Section 11 of The Code states that “if an injured employee, only partially disabled, refuses employment suitable to his capacity procured for him, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the worker’s compensation board such refusal was justifiable. However, before the compensation can be denied, the employee must be served with notice of the consequences of said refusal.”
When an employee is given work restrictions that the employer is unable to accommodate, the employer has the option of offering the employee a temporary transitional position at a not-for-profit or similar employer. Although it is not mandated in the Act that the job offer must be made in writing, it is recommended that the offer of the temporary transitional light duty position and the consequences of not accepting the position be given to the employee in writing. If the employee does not accept the light duty assignment, benefits can be suspended by filing State Form 54217, Notice of Suspension of Compensation and/or Benefits (but must be reinstated once the employee complies). Furthermore, I.C. section 22-3-3-4(c) requires that if an employee refuses to accept “all compensation,” including treatment services provided by the employer, the “employee must be served with a notice setting forth the consequences of the refusal…[i]n a form prescribed by the worker’s compensation board.” Additionally, if an employee were to be later taken off of work completely by the treating doctor (i.e. after undergoing surgery), TTD benefits would need to be reinstated. If the employee were once again to be given work restrictions, a new offer for light duty work should be made at that time.
In determining whether benefits have been properly suspended, the Indiana Worker’s Compensation Board will examine if the temporary transitional placement is reasonable. The temporary transitional placement must be within the employee’s restrictions and the employee must be allowed to leave for medical appointments and compensated for the time attending medical appointments. As many of these positions compensate at an hourly rate, TPD benefits need to be paid if the employee is earning less than his or her AWW. There also has to be a method in place for submitting time sheets to the employer for the employee to be paid.
The Board may find that an employee has reasonable cause to decline a temporary transitional placement if the offered work requires a much longer commute than the employee’s pre-injury position or if the offered work is during a different shift than the injury-date position. The Board will look at these issues on a case-by-case basis. If the commute is ten minutes longer, it is likely to be found reasonable, but if the employee is required to drive more than an hour more than his pre-injury position, the Board may find the offer unreasonable. If the employee normally works third shift and is offered a first shift position, the Board may find the offer reasonable. If a situation arises where you question whether a transitional placement would be reasonable, please do not hesitate to contact our office.
We recommend that any offer for temporary transitional placement be made in writing with the consequences of refusal of the work outlined in the offer (although not required by the Act). In addition, we recommend that issues pertaining to the commute and shift time also be addressed in the letter. Finally, we recommend documenting the employee’s refusal of the offer to further substantiate the termination of TTD benefits. As always, if you have any questions regarding a temporary transitional employment position and/or terminating or suspending benefits, please do not hesitate to contact one of our Indiana attorneys.