Fowler Bell Blog – Worker's Comp
Tipping the TTD Scales Back Into Balance
We finally have a decision in Trane Commercial Systems v. Tipton, the last pivotal TTD case that was pending before our Supreme Court. Fortunately, it is another victory for employers. (Yes, you read that correctly…a VICTORY for employers!)
Ms. Tipton was testing commercial AC units (her usual job) when she was injured. She was paid TTD and returned to light duty work (building circuit boards). Building circuit boards was much less physically demanding but still permitted her to work within her restrictions (an 8-hr work day). This job was of the same pay grade as her pre-injury assignment, so there were no lost wages. Several months later Tipton was released to her regular job with an 8-hr work day restriction. She put in a bid to continue the circuit board assignment permanently (she claimed she also felt she couldn’t return to her pre-injury duties without significant problems, despite the lack of restrictions). She got the job, and eventually began working overtime again.
After filing her claim, Tipton sought TTD from 3/23/11 (when she started on light duty) through 7/7/11 (when she was released back to her pre-injury job). Because she returned to work at a job that the ALJ felt “customary, non-minimal work”, and she was earning the same hourly pay, the ALJ did not award TTD. The Board affirmed the ALJ, but the Court of Appeals (COA) reversed the Board. They concluded that an injured employee who has not reached MMI but has returned to work should receive TTD benefits “until she returns to the ‘type of work [she] had performed…when injured or to other customary work.’” Since Tipton had not performed the circuit board work before she was injured, the COA did not consider this to be “customary” and she should receive TTD during the time period she was back to work full-time, doing that job, until she reached MMI. Thus, Ms. Tipton, per the COA, should receive TTD (67% of her AWW) while she was working full-time for Trane an earning the same hourly rate (100% of her AWW) for a total of 167% of her AWW. This was the issue on appeal.
The Supreme Court had to determine the meaning of the phrase “return to employment” in the context of our statute’s definition of TTD. The Court pointed out that though the legislature chose to define the term “work”, it did not provide a definition for the term “employment”, which is part of the TTD definition. It went through a very nice analysis of our line of TTD cases, beginning in 2000 (if you’d like, you can read it here). They then outlined the standards the ALJs should apply to determine whether an employee has “return[ed] to employment” so that they are no longer entitled to TTD. “The purpose of awarding income benefits such as TTD is to compensate workers for income that is lost due to their injury….” The standards below assume that the subject employee is not yet at MMI. Here’s the pull quote:
“As we have previously held, “[i]t would not be reasonable to terminate the benefits of an employee when he is released to perform minimal work but not the type [of work] that is customary or that he was performing at the time of his injury.” Central Kentucky Steel v. Wise, 19 S.W.3d at 659. However, it 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. 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. We do not attempt to foresee what extraordinary circumstances might justify an award of TTD benefits to an employee who has returned to employment under those circumstances; however, in making any such award, an ALJ must take into consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TTD benefits in addition to the employee’s wages would forward that purpose.”
Common sense prevails. This is great news, and should be invaluable in those cases where the employee returned to full duty and wages in a different position ; at times, they still argue that they should receive TTD, thanks to the recent extremely liberal construction of the law. Even with this new clarification, I foresee plaintiffs splitting hairs over whether their clients have the prior “experience, training and education” to perform their new assignment, but the overriding point is that they have actually returned to work and are earning wages. The fact that they may require a few hours’ training on their new job isn’t an “extraordinary circumstance” that would warrant paying them 2/3 of their wages on top of their existing earnings; the Court even made this very point, noting that Ms. Tipton “did not produce any evidence that assembling circuit boards required significant additional training or that it was beyond her intellectual abilities.” Bear in mind that to award TTD after a return to employment there is now an affirmative burden upon plaintiffs and it will require ALJs to make specific findings of fact. This should weed out many of the cases where TTD might previously have been argued for and awarded.
While we should never have gotten this far away from the wording of the statute, we are very happy to see that our Supreme Court put a stop to the free form reconstruction of the Act. Now if we could just get them to confirm that “return to employment” simply means a return to employment. But that’s a battle for another day.