Temporary Transitional Employment (TTE) is a popular workers
compensation tool in which employers who cannot return injured workers to
positions within the company's operations arrange for assignment to public
service entities that can accommodate the workers’ restrictions. Reasons
advanced in support of such programs include that they maintain or restore the
employee’ habit of getting out and going to work, help him overcome a sense of
disability and may qualify him for fringe benefits. Such offers are frequently opposed by injured
employees and their attorneys. Reasons given for opposing TTE include that they
do not want to do that work, that is not within their restrictions and that
they do not have to accept “volunteer” work.
We are frequently contacted by clients who want to know "Can we offer an injured employee temporary transitional employment and terminate his temporary total disability benefits if he does not accept it?” The answer varies among the states within Evans and Dixon's service area. In Kansas and Nebraska TTE has been generally been accepted with little controversy. The use of temporary transitional employment in Kansas is supported by K.S.A. 44-510c(b)(2)(B), that states in relevant part:
A refusal by the employee of accommodated work within the temporary restrictions imposed by the authorized treating physician shall result in a rebuttable presumption that the employee is ineligible to receive temporary total disability benefits.
Missouri provides little official guidance and administrative law judges lack consensus on the question.
By substituting the language "by the” for the words “with the same” employer in section 85.33(3)(a) the 2017 amendments to the Iowa Workers Compensation Act suggest the intention of the legislature that refusal to participate in offered TTE will result in the loss of temporary benefits.1
In Illinois offers of TTE are frequently opposed on the basis that the Illinois Act does not contain any provision for TTE and claims that the particular offer is unsuitable. Practitioners in Illinois have one Workers’ Compensation Commission decision to which to turn for guidance.
In Alavarez v. Foodliner, 15 IWCC 443, the Commission affirmed an award of TTD and penalties for its vexatious termination when the petitioner refused an offer of TTE. In that decision the arbitrator outlined problems with the TTE offer. The decision gives both sides insights into what may or may not be an offer that would compel the employee to accept or face loss of temporary total disability benefits.
Eric Alvarez was employed as a pre-loader by Foodliner when he injured his left wrist. Alvarez worked light duty for about a month until Foodliner could no longer accommodate his restrictions. Alvarez was referred for possible TTE with YMCA of South Chicago but that position was filled before his background check was completed. He was then referred for TTE with South Suburban Toys for Kids. Alvarez was led to believe that the job duties exceeded his restrictions. The suspended state of his driver’s license required him to use public transportation that would require over a two hour trip each way, an amount of travel that he considered to be unreasonable. A third placement was attempted at a Senior Services. Restrictions provided by the respondent were considered but those from the treating doctor were not. When he did not appear for this assignment his temporary total disability was terminated.
The relevant question presented was whether respondent can terminate TTD benefits if petitioner declines the TTE placements? In this case:
(T)he arbitrator concludes as follows: the Illinois Worker's Compensation Act makes no mention of TTE. The petitioner is under active medical care. The Respondent cannot accommodate the petitioners work restrictions. CBSC, (sic) Inc., the Respondent's worker's compensation carrier, has a financial bias in that it stands to gain by reducing its obligation to pay TTD. There are many unresolved issues concerning TTE, including the merit and purpose of volunteering; who is responsible for injuries the Petitioner may suffer while traveling to and from the TTE, or at the site of the TTE while volunteering; does TTE impact Petitioner's pension benefits, disability benefits, retirement benefits, or group insurance benefits; and mileage reimbursement.
The arbitrator finds that Respondent cannot terminate Petitioner’s TTD benefits based on their offering of TTE. A Petitioner has the right to refuse a TTE assignment, regardless of the reason. An injured worker is not required to perform TTE under the Act.
The arbitrator awarded, and the commission affirmed, an award of the disputed temporary total disability and found “The respondent's conduct was unreasonable and vexatious and caused an unreasonable delay in the payment of TTD benefits.”
While Alvarez appears to be a clear rejection of any claim that an injured employee has any obligation to accept assignment to a TTE type of employment, it flowed from a series of egregious actions and the failure to present evidence to answer the questions raised in Alvarez. The presentation of a thorough explanation of the benefits expected to flow to the employee from a TTE may result in a different decision.
While it is true that TTE is not specifically mentioned in the Act, it may be a component of a vocational rehabilitation program which specifically is not limited to enumerated activities.2
Interaction between the TTE and Petitioner’s medical care must be explained so as to permit the finder of fact to determine if they would be mutually supportive or interfere with each other.
The objection that the employer and the facilitator of the TTE program have financial interests in the program should not be a disqualifier. The truth is that everyone in the workers’ compensation industry is responding to financial incentives. The challenge is to show that the program is also in the employee’s interest or at least is not detrimental to his or her interest.
In order to persuade the finder of fact the benefits of the TTE program to the employee should be explained by a qualified vocational rehabilitation counselor. They may include such things as getting the employee back into the habit of maintaining a schedule, interacting with others, keeping the employee active and other benefits that the counselor can identify.
In order to make a successful case that an injured employee must participate in a TTE or risk losing his rights to temporary total disability the respondent/employer should establish that the employee is working for the respondent/employer with his work assignment being at the TTE facility. Evidence should be presented by the respondent/employer that the employee will remain their employee, will be paid by the respondent/employer, that any fringe benefits, such as sick and vacation time, retirement benefits and health insurance will accrue just as they would if the employee were working at the respondent/employer’s facility. The respondent/employer’s liability for injuries arising out of and in the course the TTE should be established either through a contract with the host facility or by operation of the respondent/employer’s workers’ compensation insurance policy. If possible activity restrictions imposed by the treating physician should be followed during the TTE so as to remove any issue of restrictions from the matter. An offer of TTE should also communicate that any temporary partial disability or maintenance to which the employee would be entitled by law will be paid. Travel to the TTE should be compared to Petitioner’s travel to his/her regular work site to determine if any mileage reimbursement should be offered or incorporated into temporary partial.
An employer who follows the guidelines outlined above should have a reasonable chance of obtaining a decision establishing that an offer of appropriate temporary transitional employment justifies the termination of total disability benefits.
1Iowa Workers’ Compensation Act, section, 85.33(3)(a), new law as of July 1, 2017:
3. a. If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee’s disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. If the employer offers the employee suitable work and the employee refuses to accept the suitable work offered by the employer, the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal.
2 Illinois Workers’ Compensation Act , section 8 (a), in part:
Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution.
James M. Gallen is a member in the St. Louis office concentrating his practice in the defense of Illinois Workers’ Compensation cases. He is grateful for the assistance of Brent Jepson of the Kansas City office and Bill Lamson of the Omaha office in presenting the laws of the states in which they practice.