By Clarke Cotton
In a situation where a claimant is laid off while on light duty, they typically would be entitled to TTD so long as they meet the two part test for TTD benefits. KRS 342.0011(11)(a) defines TTD as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level that would permit a return to employment.” Therefore, TTD benefits are controlled by a two-pronged test: (1) the employee has not achieved MMI; and (2) the employee has not returned to customary employment. Both prongs of KRS 342.0011(11)(a) must be satisfied before a claimant is entitled to TTD benefits.
In an unpublished case, the Kentucky Court of Appeals found that termination/suspension for misconduct is not a reason to terminate TTD benefits. Lexington-Fayette Urban County Government v. Bright, 2013 Ky. App. Unpub. LEXIS 894 (Ky. Ct. App. 2013). In Bright, TTD was still owed even when the claimant was terminated for cause. Similarly, an employee who is laid off due to no fault of their own would be entitled to TTD during the time that they have not reached MMI and have not returned to customary employment.
However, a layoff due to COVID-19 presents a novel set of circumstances, especially in light of Governor Beshear’s emergency changes to the unemployment system. Specifically, Governor Beshear has waived the waiting period for employees that are laid off due to coronavirus. He has also waived the work search requirements while the state of emergency is in effect. Through Governor Beshear, the Commonwealth has recognized the unique situation that COVID-19 presents and has taken emergency action to rectify it.
A claimant that is working a light duty job, who otherwise meets the requirements for TTD, but is laid off due solely to COVID-19 should seek unemployment benefits. Any TTD benefits that are later awarded can be offset by the unemployment benefits awarded during that time.
If you have questions, feel free to contact a member of Reminger's Workers' Compensation Practice Group.