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Blurring the lines between TTD and PTD

The roles of temporary total disability (TTD) and permanent total disability (PTD) are supposed to be separate and distinct. TTD is designed to compensate an injured worker for a loss of earnings while he or she is unable to return to his former position of employment. TTD stops once the client reaches the level where he or she is “as good as they are going to get” (also called MMI) with respect to the allowed conditions. Depending on the severity of the injuries, the client may then be looking at the possibility of permanent total disability. PTD is intended to compensate an injured worker for the loss of wages caused by an injury which removes the injured worker from all sustained gainful employment. This would mean that the injured worker is not only unable to return to his or her former position of employment, but is also unable to return to any form of sustained employment on account of the allowed conditions in the workers’ compensation claim.

With two different purposes served by these two different benefits, it is natural each is governed by its own standard. To prove eligibility for TTD, one must prove that he or she is precluded from returning to the former job by the allowed conditions and has sustained a loss of wages. To prove eligibility for PTD, one must prove that he or she is unable to return to work in any capacity on account of the allowed conditions.

Despite these separate standards, the line between them is becoming increasingly blurred through the advancement of the voluntary abandonment standard. The voluntary abandonment standard is a judicially created standard that essentially provides that an injured worker who quits his or her employment for reasons unrelated to the injury cannot claim that the loss of wages is related to the injury.

Inherently, this voluntary abandonment doctrine makes sense. Consider the following example. Bob is hurt on the job. The injury is relatively minor and after a brief period of physical therapy, he is able to return to the exact same job he was doing before the accident. Following his return, Bob becomes frustrated with his boss, shares a few choice words, and quits the job. If Bob would come to the workers’ compensation system and ask for TTD, he would obviously be denied. His loss of wages has nothing to do with the injury because his departure from the workforce had nothing to do with the injury. At this level, the doctrine of voluntary abandonment makes sense.

However, while the voluntary abandonment doctrine makes sense in Bob’s case, the doctrine has also increasingly become a mechanism for blurring the lines between the stringent PTD standard and the less demanding TTD standard. Starting primarily in 2008, more cases and administrative proceedings have been using the voluntary abandonment doctrine as a rationale for denying TTD benefits by requiring the injured worker to clear the PTD test. Keeping in mind that PTD test looks at whether the injured can return to any employment (a much harder hurdle to clear) as compared to the TTD standard (which looks only at return to work in the former position of employment), the problem becomes apparent. To get TTD, some claimants are being required to jump over the PTD hurdle.

In a recent case, the Supreme Court of Ohio asserted in dicta that, even if an injured worker departed the workforce on account of the injury, a subsequent request for TTD will require the fact finder to examine whether there is evidence that the claimant was medically unable to perform other types of work, besides the former position of employment.

Admittedly, this recent case (Corman v. Allied Holdings, 2012-Ohio-2579) does address a situation where the claimant left the workforce in 2003 and asked for TTD nearly six years later. As TTD is designed to replace lost wages, there is admittedly a question in such a case as to whether the claimant (6 years after the accident) could be categorized as “losing wages.” Moreover, the Commission in this case made a finding that the claimant’s departure was not injured induced.

Despite these caveats, the Court’s comments in the case indicate that, regardless of whether or not the claimant’s departure was injury induced, he would still have to show that he tried to find other employment to advance his request for TTD. Herein lies the blurring of the two standards. To obtain temporary total disability compensation, the claimant is being required to show an inability to perform other work (the standard by which the more demanding PTD benefit is determined).

The critical concern regarding Corman focuses not so much on the actual holding, but rather on the willingness to graft the PTD requirements onto a request for TTD. Moreover, there is no clear guidance on how soon after an injury-induced departure that a claimant will need to meet this heightened TTD burden. Assume that Bob had not blown up at his boss and quit but rather was forced to remain out of his job because of the injury. If that injury constituted sprains and strains, he would likely be found MMI at some point in the near future which would cut off TTD. However, if after being cut off TTD, Bob obtained new conditions and surgery and sought a new period of TTD, will he now be required to show that he looked for work (and that he was not able to return to any form of employment) while those new conditions were pending? This hypothetical situation differs from Corman, especially in terms of the gap between the departure from the workforce and the request for TTD. In Corman, the gap was approximately six years; in the hypothetical, the gap would be presumably a handful of months. However, the willingness to graft a PTD-type burden onto a request for a TTD benefit represents a potential problem to Bob and claimants who may be similarly situated and demonstrates the danger in blurring the lines between TTD and PTD compensation.

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