Third Quarter 2017
By: Drew Vicary and Josh Stegeman
Question: Under Missouri 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: Missouri Workers’ Compensation Statutes do not address this issue and to our knowledge, there is no current Missouri case law addressing the subject.
Discussion: An Employer may offer temporary work to an Employee within his/her work restrictions as a part of a general return to work policy. An Employer also has the right to suspend TTD benefits when the Employer can accommodate the Employee’s work restrictions through light duty work.
Some states have adopted a temporary transitional employment program, wherein an Employer can return an Employee to light-duty work with another business while the Employee continues to receive medical treatment in anticipation of maximum medical improvement. Eight states have adopted specific programs via statute while other states permit similar programs based on their workers’ compensation law. Missouri has not adopted this policy.
Some states have rejected these programs on the basis the light duty offer is not for light duty work with the Employee’s Employer. Rather the volunteer work is to be performed for a different Employer, in which no Employer-Employee relationship exists between the Employer and Employee where the Employee will be performing transitional light duty work. Other state judges have held it is the responsibility of the Employer to provide light duty work within its own company.
Practice Tip: Since the Missouri legislature and the Courts have not addressed this issue specifically through statute or judicial opinion, we recommend attempting to place the Employee in these temporary transitional employment positions if the Employer is able to make such arrangements and does not have light duty work available for the Employee. Such an arrangement would permit the Employer to terminate TTD since it is providing light duty work, and it would provide the Employee an opportunity to readjust to the employment routine and environment, and be performing some work before being released to return to work full duty. We recommend discussing a transitional placement at a not-for-profit with an Administrative Law Judge if opposing counsel or the pro se Employee rejects the placement.
We recommend that any offer for such temporary transitional work be made in writing and describe the work to be performed and how it accommodates the Employee’s light duty restrictions. In addition, the Employer should explain the impact of the work’s geographic location and shift time, as well as the consequences of refusing the work. If the Employee rejects the offer, we recommend the Employer have the employee sign an acknowledgment that they are rejecting the offer and to provide an explanation for the rejection. Thereafter, we recommend the Employer consider terminating TTD on the basis of the Employee refusing work within light duty restrictions.
Another issue to consider is potential reimbursement expenses to Employee for mileage to the location of the not-for-profit. If the transitional Employer is not located in the metropolitan area wherein Employee originally worked, mileage reimbursement will most likely be owed to Employee for their daily commute to/from the transitional placement. This may off-set the overall cost benefit of having Employee participate in the program to a certain extent.
Also the Employer may wish to consider what will happen if Employee is injured while on site for the transitional employment position. As no Employer-Employee relationship exists between the Employee and the transitional Employer, liability for any subsequent injuries would be at issue. Therefore, if the placement would be short-term, it might not be worth the risk to enroll Employee in a transitional placement due to the risks of re-injury or the risk of compensability for new injuries suffered at a workplace not controlled by the Employer.
Since Missouri does not have temporary transitional employment directives within the Workers’ Compensation Statutes, defense attorneys will need to be open minded when developing arguments to justify Employees participating in transitional employment. If there is significant pushback from opposing counsel, the transitional employment will most likely not be an option in Missouri and TTD will continue to be owed until the Employer can accommodate restrictions and/or the Employee is released from treatment at maximum medical improvement or at least employable in the open labor market.