In my last blog post just a week ago, I warned that employers might refuse to pay temporary total disability (TTD) benefits to injured Indiana workers who are working under restrictions but then get laid off because of the Coronavirus. I also hinted that it would be unlawful for employers and their worker’s comp insurance companies to do that.
Unfortunately, my prediction has come true. I am aware of at least two examples with the exact scenario described here: injured worker under restrictions gets laid off, but worker’s comp won’t pay TTD. Imagine how devastating that must be to an injured worker: the only reason you’re able to work is because your employer created a fake job for you, and now that’s gone away. Now you don’t have a job, and can’t get a job because of your restrictions!
Thankfully, Indiana Worker’s Compensation Law has been written in a way to protect workers who can’t work in this scenario. Existing law regarding TTD examines an injured employee’s ability to work in a much broader context than a single employer, thus removing the circumstances of a termination (including layoffs due to coronavirus) from consideration. Indiana Code 22-3-3-7(a) obligates an employer to pay “compensation” (i.e. TTD) when an injury results in “temporary total disability to work or temporary partial disability to work.” It does not limit the analysis to a particular employer. Rather, TTD entitlement depends on an injured employee’s ability to perform work of the same kind or character. The purpose of awarding TTD payments under the Indiana Worker’s Compensation Act is to compensate an employee for his or her loss of earning power because of an accidental injury arising out of, and in the course of, his or her employment. During the period of time that a claimant undergoes treatment for an injury, it is relevant whether the injured workman has the ability to return to work of the same kind of character. If the injured worker does not have the ability to return to work of the same kind or character during the treatment period, he or she is temporary disabled and may be entitled to benefits. These concepts were extended to the context of a terminated employee in E.F.P. Corp. v. Pendill, 413 N.E.2d 279 (Ind. App. 1980), which stated “[the employee’s] continued unemployment is not due to his termination, but rather due to the injury he sustained while in their employment.”
What all of this means for you is that if you’re working under restrictions when you lose your job for any reason (including a coronavirus layoff), your employer, through its worker’s comp insurance company, must pay you TTD. After all, your restrictions keep you from doing not just your job with your current employer, but also the same job with any other employer! However, as I’ve observed, worker’s compensation insurance companies are unlawfully refusing this obligation, with real world consequences to Indiana’s injured workers.
If you have a pending worker’s compensation injury, and you’re concerned about losing out on TTD benefits because of layoffs, you need to speak with a skilled worker’s compensation attorney right away. Salmon & Hewins of Evansville Indiana practices worker’s compensation law throughout the state of Indiana. Initial consultations are always free, and there’s no fee unless we recover a settlement or verdict for you.
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