Indiana Court of Appeals
Decided April 19, 2016
Indiana Code 22-3-3-11 provides that if an injured employee refuses employment suitable to his capacity procured for him, then he shall not be entitled to compensation during the period of refusal. Most employers are aware of this provision, but are not quite so cognizant of some qualifying provisions which require that 1) the employee must be served with a notice setting forth the consequences of refusal and 2) the Board may determine whether or not the refusal was justifiable.
In Gordon v. Toyota Motor Manufacturing of Indiana, Mr. Gordon was evaluated by the attending physician on 7-16-08 and deemed to be disabled for four weeks. But, Mr. Gordon was called into work and informed by the worker’s compensation liaison and the in plant physician that there had been a change and that he was to report to work on 7-24-08 despite the disability assigned by the attending physician. Mr. Gordon did attempt to work, but stopped working as of 8-5-08 because of the pain and other symptoms he was having.
Mr. Gordon timely filed an Application for Adjustment of Claim on 8-11-08. He had unauthorized surgery for his injury on 6-7-10. He was told that he would be disabled for 26 weeks after that surgery. The Board decided that the surgery was reasonably necessary and awarded to Mr. Gordon the unauthorized medical expenses and 30 weeks of TTD; that is, the 4 weeks ordered by the attending physician in July of 2008 plus the 26 weeks following the surgery in June of 2010.
Mr. Gordon appealed claiming that he was entitled to TTD for the entire 121 weeks between 8-5-08 and 12-7-10. Toyota contended that Mr. Gordon’s refusal to work as of 8-5-08 prevented him from receiving TTD until he became disabled by the surgery on 6-7-10. The Court of Appeals concluded that while the question of whether Mr. Gordon was justified in leaving work on 8-5-08 should have been addressed by the Board, that question did not need to be answered because Mr. Gordon was entitled to the entire 121 weeks of TTD as a matter of law since Toyota did not serve Mr. Gordon with the notice required by IC 22-3-3-11. The Court of Appeals explained:
“That is because Indiana Code Section 22-3-3-11(b) provides that, before compensation can be denied under the statute, the employee must be served with a notice setting forth the consequences of the refusal of employment under that section. The notice must be in a form prescribed by the worker’s compensation board.”
Form 54217 is the Form which is used to advise an employee and the Board that a suspension of benefits has occurred where TTD is not being paid. Form 38911 is the Form which is used to advise an employee and the Board that a suspension of TTD and other benefits has occurred. But, those Forms are not really the notice contemplated by IC 22-3-3-11 (b) which requires that:
“Before compensation can be denied under this section the employee must be served with a notice setting forth the consequences of the refusal of employment under this section. The notice must be in a form prescribed by the worker’s compensation board.”
IC 22-3-3-11 (b) states that the notice must be in a form, not on a form, prescribed by the Board. The statute contemplates a notice which advises the employee of the consequences of an unjustified refusal and service of that notice at some time in advance of the refusal and suspension of benefits. Thus it is clear that in order to comply with the statute, the employer must provide the employee with a written document which explains the employee’s obligation to work and the employer’s right to suspend at some time before the unjustified refusal and resulting suspension occurs. The rationale of the statute and of the court in the Gordon case would apply also to refusals and suspensions related to the provision of medical treatment.
In the opinion of the author, a written document should be provided to an injured employee at the time that the injury is accepted as compensable. That document should provide:
Notice of Right to Suspend Compensation and/or Benefits
Under Indiana law (IC 22-3-3-4/IC 22-3-3-6/IC 22-3-3-11) an injured employee is obligated to accept the medical treatment, services and supplies/a medical examination/or the suitable light duty work provided by the employer. If such employee unjustifiably refuses to accept such medical treatment, such examination or perform such light duty work, then the employer has the right to suspend the payment of compensation and the provision of other statutory benefits during the period of such refusal. Injured workers shall not receive temporary total or partial disability payments, death benefits, employer directed treatment, or partial impairment payments, reimbursement for unauthorized medical care and may not be entitled to have a case heard, until such refusal ceases.
While this notice is somewhat cumbersome (and does not include a dependent’s refusal to allow an autopsy due to the infrequency of such a situation), it gives an explanation of the injured employee’s obligations with regard to treatment, examination and light duty work and sets out the ramifications of an unjustifiable refusal. The underlined portion, uses the language in Form 54217 and is therefore arguably in a form prescribed by the Board. Once this notice has been given, the employee and the Board would be advised as to the actual suspension of TTD and/or other benefits by way of Form 38911 and/or Form 54217.
DUE DOYLE FANNING & ALDERFER, LLP