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Q: When is an injured worker entitled to temporary total disability compensation?
A: An injured worker is entitled to receipt of temporary total compensation when he is unable to return to the former position of employment as a result of the allowed conditions in the claim. This is the legal definition of temporary total disability. Please note that the issue is whether or not the injured worker can return to his former position of employment. Thus, if the treating physician allows the injured worker to return to work with restrictions, and those restrictions cannot be accommodated, the injured worker is still entitled to receipt of temporary total compensation. If the treating physician does in fact allow the injured worker to return to work with restrictions, a decision then needs to be made as to whether the restrictions can be accommodated and the injured worker brought back to work. This, of course, would involve a case-by-case determination, depending on the nature of the restrictions and the employer’s ability to accommodate those restrictions. In addition, an employer does not want to create a permanent light duty position.
Q: How do we go about bringing an injured worker back to work with restrictions?
A: The treating physician’s restrictions must be reviewed and all restrictions must be accommodated. The light duty job should be put in writing describing all the duties which are required for performance of the light duty job. It is then best to have the treating physician sign off on the light duty job. This will indicate to the injured worker and to the BWC that the treating physician agrees with the job duties and that the injured worker can perform those duties. The Ohio Administrative Code then requires that the light duty job offer to the injured worker be in writing. In addition, you must allow the injured worker 48 hours for the actual return to work to the light duty position.
Q: What if the injured worker does not return to work pursuant to our written light duty job offer?
A: If the injured worker does not return to work following a good faith written light duty job offer, this is a basis for termination of temporary total disability compensation. If the claimant does not return to work after the written light duty job offer, a motion should be filed immediately requesting termination of temporary total compensation. The motion should also request the hearing be scheduled on the next available docket. A copy of the written job offer must be attached to the motion. The claimant’s temporary total compensation cannot be terminated until the date of the hearing. This will very likely create an overpayment in the claim.
By: Carol D. Strassman
Please feel free to contact Carol Strassman or any of the experienced workers’ compensation attorneys at RBS with questions concerning temporary total disability compensation and bringing an injured worker back to work in a light duty capacity. Also, please note Mike Reidy’s article in this edition of the newsletter for additional information on temporary total disability.