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Fowler Bell Blog – Worker's Comp

TTD Relief: Thank Goodness for Good Sense

At long last, the Kentucky workers’ compensation bar has an answer to the temporary total disability (TTD) question that has been in turmoil for more than a year. With its reversal of the Court of Appeals in Zappo’s v. Mull, 2014-SC-000462-WC, the Kentucky Supreme Court has (thankfully) taken a step back from the brink over which we were afraid of falling.

As a quick refresher, Ms. Mull was placed on “light duty”, working the same hours, with no reduction in her wages after her work-related hand injury. She continued this light work without difficulty until she quit more than two months later for unrelated reasons. She claimed entitlement to more than seven months of TTD, from the date she quit to the date she reached MMI. The Administrative Law Judg (ALJ) awarded the TTD, but the Workers’ Compensation Board reversed. The Court of Appeals reinstated the award, reasoning that TTD was owed until she was at MMI, unless there was a “return to employment”, which could only be “achieved if the employee can perform the entirety of her pre-injury employment duties within the confines of the post-injury medical restrictions.” This decision (designated to be published) meant that TTD would be owed far more often, as restrictions nearly always prevent a worker from doing some portion of their pre-injury job (else why would restrictions be necessary?). This decision caused an uproar and great uncertainty while it was pending before our highest court.

Fortunately, the Supreme Court opted to stick with precedent and the letter of the law. After restating the clear statutory language concerning TTD (see KRS 342.0011(11)(a)), the Supreme Court quoted its recent decision in Livingood v. Transfreight: “[Central Kentucky Steel v.] Wise does not ‘stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD.” As such, the ALJ must analyze two questions: 1) whether the light duty work assigned to the claimant is “minimal”, and 2) if it was work s/he would have performed before the work injury. This analysis was then applied to the facts.

In Livingood, the injured worker was on light duty, doing several tasks he had performed pre-injury. Since it was real work he’d done before, he was not entitled to TTD. Here, though Ms. Mull was clearly not at MMI, and though the ALJ did not conduct an in-depth analysis on the second prong of the TTD test, the Court was able to say there was no substantial evidence to support the award of TTD. Like Mr. Livingood, Ms. Mull admitted she was doing several of her pre-injury tasks on light duty (just not all of them). Thus, her light duty was not a “significant diversion” from her original employment, and was not “minimal” work. She was paid the same hourly wage for this work. The Court concluded this was “regular and customary employment” so she should not receive TTD during that time. Further, since she quit her job for unrelated reasons, she should not receive TTD after quitting.

Comment: This was the right decision. All Kentucky employers and insurers should be breathing a collective sigh of relief. I applaud the Court’s exercise of restraint and good judgment. The case was not designated to be published because it does not make new law. It is just a reminder that we must apply the law we already have, rather than creating something new and absurd. I couldn’t agree more.