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Rothe-Kushel: Entitlement to TTD: Special Circumstances

  • State: California
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Temporary total disability seems like a relatively simple wage replacement concept at first glance but can get complicated quickly when one adds terminations, resignations and strikes into the mix.

Brittany H. Rothe-Kushel

Brittany H. Rothe-Kushel

As we know, the purpose of TTD is to help replace the wages the injured worker would have earned but for the injury during the time the applicant is temporarily disabled.

But is TTD owed when a worker goes out on strike? What about when an employee resigns voluntarily? What about when an employee is terminated? Would TTD continue if an applicant has exhausted his allocated time off due to a medical leave of absence and the job is no longer available?

In California, workers' compensation is a no-fault system. This is relevant when we consider an employee’s entitlement to benefits after termination for cause. There are other equitable reasons to reconsider termination while an applicant is on TTD or on medical leave. As a reminder, Labor Code Section 132(a) discourages employers from firing injured workers in retaliation for filing a workers' compensation claim.

Entitlement to TTD if terminated for cause

In the case of Anzelde v. WCAB (1996), the California Workers' Compensation Appeals Board made it clear that a termination for cause justified the termination of the injured worker’s right to vocational rehab. That same ruling was extended to the justification for terminating the employee’s TTD.

In that case, the employee was a police officer who had accepted an offer of modified duty but had not yet begun working when he was placed on administrative leave and later fired for alleged unlawful activity. The WCAB deemed this to be a “for cause termination.”

Entitlement to TTD while on strike

The case of Seale v. WCAB (1974) addressed the issue of an employee’s entitlement to TTD while on strike. In this case, the applicant refused to return to modified duty due to being on a union strike. The court held that the applicant was not entitled to TTD because striking was voluntary and for reasons other than a physical inability to work.

Burden of proof

The injured worker has the burden to prove that a work-related injury caused his wage loss. If modified duty was or would otherwise be available but for the injured worker’s “for cause” reason for termination, the employer is relieved from continuing TTD post-termination under case law.

If the injured worker was terminated for cause before modified duty is offered or accepted, a more rigorous inquiry by the WCAB is required to determine if the employer made a genuine offer of modified duty (Quiett v. System Transport, 2008). If the employer proves that it would have offered the injured worker modified duty but for the applicant’s termination for cause, the WCAB must determine whether the offer was made in good faith and within the applicant’s work restrictions (Robertson v. WCAB, 2003).

This particular situation is hotly contested in California workers’ compensation claims, so it is imperative to have the evidence to support the denial of TTD. There are six recommended steps to support an employer’s denial of TTD:

  1. Have proof that the applicant was terminated. Usually, a termination notice will suffice.
  2. Be able to show that the termination was for cause. Typically, the employee handbook would lay out what constitutes a violation of company policies. It would also be helpful to have documentation of prior warnings before the applicant’s termination.
  3. Be able to show that the termination was in good faith. This will help employers avoid 132a claims.
  4. Have proof that modified duty was or would have been available. Evidence of this could include all of the letters the adjuster sent to the injured worker regarding offers of return to work.
  5. Make sure that the modified duty was within the injured worker’s restrictions. Here, you would look to medical evidence within the primary treating physician's recommendations for work restrictions and/or the interactive process involving human resources.
  6. Have evidence that the offer (or putative offer) of modified duty was in good faith.

Entitlement to TDD during shutdown or strike against mandates

As we enter year two of this pandemic and face the delta, mu and other viral COVID variants, employers may have to shut down their work sites to protect their employees. With another potential shutdown possible, there also may be issues regarding an employee’s entitlement to TTD.

The case of Corona v. California Walls Inc. (2020) addressed this issue. Here, the employee was released to modified work and returned to modified work, only for the employer to shut down the site due to the stay-at-home order issued by Gov. Gavin Newsom.

The appeals board in Corona determined that the applicant was still entitled to TTD benefits and that the employer’s inability to accommodate a temporarily disabled worker’s restrictions did not release the employer from its obligation to pay.

What happens when an employee — say, a nurse at a hospital — goes out on strike against a COVID-19 vaccine mandate? Let’s say this nurse was on modified work duties that could have been accommodated by the hospital. The employee’s argument would be that he has a right to strike and would still be entitled to TTD. However, the Seale case would support the defendant’s denial of benefits.

Conclusion

The issue of entitlement to TTD benefits will continue to be litigated between defendants and applicants' attorneys until the end of time. But if employers proactively communicate with administrators about work accommodations and create clear documentation about employee separations, defendants can have the necessary evidence to support TTD denials.

Brittany Rothe-Kushel is a workers’ compensation defense attorney at Bradford & Barthel’s Los Angeles location. This entry from Bradford & Barthel's blog appears with permission.

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