Third Quarter 2017

Wisconsin

By: Sam Casson & Sue Barranco

Question: Under Wisconsin 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, temporary transitional placement at a not-for-profit or similar employer may be used to terminate TTD benefits when the injured employee has not reached MMI, subject to certain limitations.

Discussion: Temporary disability benefits can be withheld if a worker unreasonably refuses a good faith offer of suitable employment during the healing period. Wis. Stat. § 102.43(9)(a); see also, DWD § 80.47. These rules extend to good faith offers of charity work or work with a similar employer. Per Department of Workforce Development policy, this practice is permitted when: (1) the employer cannot accommodate light duty work restrictions, (2) the charity or similar employer has suitable work available within the employee’s limitations, (3) the employee is paid by the employer, and (4) the insurance carrier pays any remaining indemnity that may be due. [July 19, 2013 Department Policies and Procedures Letter]. Litigated issues typically arise over whether the offer was “suitable” and extended in good faith, or the employee had “reasonable cause” to decline an otherwise suitable job offer.

Courts evaluating whether TTD benefits can be reasonably suspended, under this exception to TTD liability during the healing period, first look to whether the light duty offer is considered “suitable employment.” This inquiry typically is limited to an evaluation of the physical demand level of the accommodating work, and the restrictions to which that work is tailored. If the offer is extended based on an IME, there may be an argument the offer is not “suitable employment.” However, where the light duty job offer is based on restrictions outlined by a treating provider, the judge will likely find an offer of suitable employment has been extended. For instance, in Gary Rand v. Ampco Metal Inc., 93010320 (April 5, 1995), the Commission looked at whether suitable work had been offered where an injured worker claimed he could not return to offered light duty work because of a Union strike. The Commission found that if the labor disputes were not considered, the work offered, “would unquestionably be suitable.” This case suggests a light-duty return to work offer will be suitable if within the treating medical restrictions.

Another issue with regard to suitable work is demonstrated by Haese v. County of Rock, 2007-014106 (September 8, 2009), which closely examines Section 102.43(9). In that case, the Commission essentially held the Administrative Law Judge retains the discretion to weigh credibility between an IME and treating physician’s work restrictions on the issue of whether the employee was offered suitable work. That is, in determining whether suitable work was offered, the ALJ will resolve a conflict between an IME and treating physician if the employer is using the IME restrictions to set a return to light duty job offer. Here, the Court emphasizes that the treating physician restrictions are not presumptively more credible. However, another case demonstrates why courts may favor a treater’s restrictions in evaluating whether a suitable employment offer has been extended. In Sherry Olson v. Johnson Controls, 1997035080 (November 30, 1998), the Court analogized a worker’s reliance on medical restrictions outlined by her own treating physician to the Decision in Spencer. (The Spencer case relates to an employee undertaking in good faith medical treatment recommended, but later determined to be medically excessive or unnecessary.) Claimants may argue Olson exemplifies why the restrictions upon which a light-duty return to work offer must be based should come from the treating physician.

The second issue, assuming a suitable employment offer has been extended, is whether the employee still may reasonably decline the offer without jeopardizing his or her right to TTD benefits. An employee would likely have reasonable cause to decline the suitable employment offer if: (1) the work required an excessive commute by comparison to the employee’s commute to the injury-date position; (2) work would have been provided during a different shift than the injury-date position; (3) work involved excessively harsh job duties or conditions appearing to be aimed to punish an injured employee. In John Sims v. Time Warner Cable, 2011-010016 (November 29, 2012), the Court found reasonable cause to refuse a suitable job offer where a commute of three hours was necessitated. In Kyle Olejniczak v. Sendiks Food Market, 2011-032025 (March 31, 2014), the Court found reasonable cause did not exist to reject a light-duty return to work offer, where the light duty offered was only different from regularly scheduled work because of a slightly different start time that also fell within first shift (6:00am versus 9:00am).

These issues are fact-specific, and case law on these defenses is not extensive. If the employer’s offer of suitable work appears to have been unreasonably rejected, though perhaps not strictly adhering to all of the rules discussed above, please contact our office to review the issues in greater detail and determine whether an argument should be asserted in support of denying TTD liability. Finally, remember this defense insulates you from TTD liability only when the employee is under work restrictions. If a later surgery keeps the employee totally off work, even if he or she has previously rejected the offer of suitable employment, TTD benefits should be reinstated. Later, when new light duty restrictions are imposed post-operatively, the same process above should be followed.

Practice Tip: To effectively suspend TTD benefits during the healing period under Wisconsin rules on this issue, memorialize in writing that you extended, and the employee rejected, an offer (1) based on the treating or clearly reasonable IME-based medical restrictions, (2) at the same level of pay (i.e., equal to pre-injury AWW), (3) during the same shift/working hours, and (4) at the same or lesser distance from the employee’s home. Rather than just allowing the employee to sign or not sign this written offer letter, leave a blank space for the employee to explain why s/he rejects the light duty to avoid revisionist history through the assistance of counsel if the claim or issue becomes litigated. If the employee rejects the job offer, send a denial letter to the claimant—copying the State and explaining the claimant’s right to a hearing—and enclose the written communications regarding the job offer, along with the medical restrictions on which that offer is based.