When a work related injury occurs an employer may avoid paying or may terminate the payment of Temporary Total Disability (TTD) compensation by tendering to the employee light duty work which is within the restrictions assigned by the attending physician. Such a tender of light duty work is not mandatory; it is within the employer’s discretion. If light duty work is not available or is not tendered, then TTD compensation must be paid until 1) light duty work becomes available and is tendered, or 2) the employee is released to the regular work or 3) the injury has been deemed to have reached its Maximum Medical Improvement.
Employee Unavailability for Work in Indiana
IC 22-3-3-7 (c) (5) provides that TTD may terminate where “the employee is unable or unavailable to work for reasons unrelated to the compensable injury”. A question often asked is whether TTD may be terminated where light duty work is available, but the employee has been let go as a disciplinary action. While it is the employee’s action which brings on the discipline, it is the employer which imposes the penalty for that action. If that penalty is immediate termination as opposed to a lesser or deferred penalty, then the employer is unable to tender light duty work and the TTD must continue. The statutory provision was intended to benefit the employer where employee circumstances prevent the employee from returning to the light duty work–the employee is hospitalized for unrelated reasons, has moved, is in jail, etc. It was not intended to benefit the employer where circumstances imposed by the employer prevent the employee from returning to light duty work. And, if the termination arises out of the same facts as those which led to the accident, then it may be that the resulting unavailability to work is not unrelated to the compensable injury.
The same rationale applies to a release to return to the regular work prior to MMI. If an employer cannot provide regular work because the employer chose to terminate the employment, then that choice effectively prevents the employer from exercising its right to terminate TTD when the employee has been released to return to the regular work but is not at MMI.
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