Third Quarter 2017
By: Stephen P. Murray
Question: Under Kansas law, can a 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: Kansas statutory law does not specifically address temporary transitional placement; however, a plain reading of the Kansas Workers’ Compensation Act does appear to limit the ability of the employer to terminate TTD benefits to situations in which the employers themselves can accommodate the work restrictions.
Discussion: According to Kansas law, when an employee remains employed with the employer against whom benefits are sought, the employee is entitled to TTD benefits if the authorized treating physician imposes temporary restrictions as a result of the work injury which the employer cannot accommodate. When an employee refuses accommodated work within the temporary restrictions imposed by the authorized treating physician, it results in a rebuttable presumption that the employee is ineligible to receive TTD benefits.
Whether the word “accommodate” within the Act was intended to limit the employer’s ability to offer positions within its own company is less known, though a plain reading of the law would suggest it was not. Without specific statutory language addressing the issue and without clear guidance from the Kansas courts, an employer may attempt to place an injured employee, whose restrictions cannot be accommodated within the employer, into a Modified Duty Off-Site (MDOS) program with a not-for profit organization or charity.
Practice Tip: Kansas is one of the most pro-employer states in the country when dealing with workers’ compensation law. As such, an employer located in Kansas is encouraged to first accommodate an injured employee within the confines of the organization. But, since there are no specific laws in Kansas that limit an employer’s right to accommodate an employee’s work restrictions by assigning them temporary placement off-site at a not-for-profit organization or charity, we recommend the employer extend an offer.
Upon placement of an employee in a modified-duty role, an employer may terminate TTD benefits to that employee. If an employee refuses to participate in a modified-duty role assigned with the employer, TTD benefits may still be terminated absent a showing by the employee that the accommodated work is not suitable in some aspect. This same logic should be used in situations where an employer cannot accommodate work restrictions within its organization, but can accommodate through the MDOS program. However, employers should be mindful that because Kansas law does not specifically address off-site modified duty, an employee whose TTD benefits are terminated for refusal to participate in a MDOS program may have a strong argument before the court in Kansas that the work assigned was not suitable. As such, as a best practice, an employer may want to only terminate TTD benefits for employees that voluntarily participate in a MDOS program to avoid additional litigation.