An employer has the right to avoid the payment of Temporary Total Disability (TTD) compensation to an injured employee by tendering to the employee suitable light duty work. If the employee refuses such light duty work, then the payment of TTD compensation may be suspended during the period of refusal. This seems simple enough, but there are two important restrictions before a suspension will be valid.
- The employee must be “served with a notice setting forth the consequences” of the employee’s refusal.
- The employment must be “suitable to his capacity” and compensation may not be suspended if the employee’s refusal was “in the opinion of the Worker’s Compensation Board . . . justifiable”. (See: IC 22-3-3-11)
The requirement for the service of a notice suggests that the notice must be written. The requirement that the notice set forth the consequences suggests that the notice must be provided prior to the refusal. The intent of the statutory language is to provide to the employee a written warning of the consequences of a refusal (suspension of TTD) so that the consequences may be avoided.
IC 22-3-3-11 provides that the notice must be “in a form” prescribed by the Worker’s Compensation Board (Board). Form 54217 – Notice of Suspension of Compensation and/or Benefits is to be used when an employer intends to suspend benefits. The Board does not have a form which would be used to provide advance notice of the consequences of refusal. So, the employer must develop and provide a written notice which is consistent with Form 54217, but is not Form 54217.
If the employee refuses the light duty job tender, the employer must understand the employee’s reasons for refusing the job and be prepared to prove that job was “suitable” given the employee’s “capacity” and that the refusal was not “justifiable”. In other words, the job must be established to be reasonable for the employee in question. For example, if the employee takes a bus to the regular job in Indianapolis because he does not have a driver’s license and the light duty job is at a different location in Indianapolis where the bus does not go, is that job reasonable? If the regular job is as a general laborer and the light duty job requires data entry, is that job reasonable? If the regular job is third shift, the employee watches the baby at home during the day while the spouse works and the light duty job is first shift, is that job reasonable?
The tender of a light duty job must meet the requirements of 1) and 2) before a suspension of compensation due to a refusal of the light duty job may be sustained.