Should TTD Benefits be Paid to Injured Workers on Light Duty if COVID-19 Forces Employers to Shutter?

Sarasota, FL (WorkersCompensation.com) – If a business closes due to COVID-19, should payers provide temporary total disability benefits to injured workers on light duty? In Minnesota and New Jersey, probably not. But in Wisconsin and Alabama, they should. Then again, it all depends on a variety of factors.

That was the consensus of attorneys weighing in on the complexities of temporary disability benefits owed – or not – to injured workers during the coronavirus pandemic. During a webinar produced by the National Workers' Compensation Defense Network and hosted by WorkersCompensation.com, the attorneys offered their insights and advice during the rapidly changing situation. The attorneys elaborated on many of the findings in a 50 state survey on questions about whether and when benefits are owed when employers close due to COVID-19.

To the question of whether injured workers on light duty are entitled to TTD benefits when their employers have closed up shop, “we are recommending that TTD benefits not be picked up,” said Minnesota insurance attorney Parker T Olson, a shareholder at Cousineau, Waldhauser, & Kieselbach. “For an injured worker to be entitled, the injury has to be a substantial contributing factor. The argument is that the off work status is solely due to the pandemic not the workplace injury.”

But Wisconsin’s situation is a bit different. “Employers unable to accommodate [injured workers] for any reason would trigger TTD benefits,” Olson said. “The reason for being off work is not relevant.”

In California, the responses are subject to change, depending on legislation. For example, the governor may sign an executive order about the right to benefits for essential workers.

“So look at the timing. If the injured worker is working modified duty at the time of the COVID closure, their entitlement to TTD benefits probably ceases since the employer had no control,” said Ericka D. Dunn, a San Francisco-based partner at  Hanna, Brophy, MacLean, McAleer & Jensen. “But look at the timing; what the injured worker was doing. If the employer shut down not due to COVID, they probably would not be entitled to benefits.”

New Jersey attorney Andrea L. Schlafer of Capehart Scatchard recommends her clients in that state not pay TTD benefits in that scenario, based on previous case law. But neighboring state Pennsylvania is another story. “Pennsylvania is not like New Jersey,” she said. “If an injured worker is doing light duty, he is entitled to a presumption that the wage loss is due to the disability. “

“In Alabama, indemnity shall be paid during disability,” said Mike Fish, a founding member of Fish Nelson & Holden. While there are some exceptions, that is the general rule.

Georgia approaches the situation like unemployment, Fish explained. The injured worker will receive benefits as long as he demonstrates “a diligent but unsuccessful search for suitable light duty employment. I find it very interesting.”

In another scenario, what if the injured worker is offered light duty but refuses it, either out of fear of exposure to the virus or because he is self-quarantined. Would he be entitled to temporary benefits then?

“It depends,” Dunn said. “Is the doctor recommending self quarantining due to some exposure? Then the person may be entitled to some benefits … long term disability or unemployment, not necessarily workers’ compensation.”

In Alabama it would be up to the judge. “A judge would look at the type of job, whether there is a shelter-in-place order, if it is a front line worker, the chance of high exposure, or do they work alone,” Fish said. “There are a list of factors the judge would consider.”

While payers’ attorneys might argue the injured worker is refusing a job offer and therefore not entitled to benefits, it will likely come down to what the speakers said is a reasonableness standard. “The nature of the job, chance of exposure, etc.,” Olson said. “Judges are sympathetic. So if an injured worker has a well founded reason not to return, it could bar the defense.”

In New Jersey, “once we make the offer within the [injured worker’s] restrictions, we don’t have to pay, even if the reason is fear of COVID-19,” Schlafer said. “New Jersey has other paid sick leave. We wouldn’t pay additional benefits due to his fear.”

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