State News : Kentucky

Jones Howard Law, PLLC (“JHL”) has received inquiries regarding what effect employee layoffs associated with the novel coronavirus pandemic (“pandemic”), nonessential business closures and restrictions, safety-in-place orders and quarantines have on employer workers' compensation exposure. We offer the following analysis.

Prior Injury - RTW - TTD Terminated - Subsequent Layoff

Hypothetical:  At the time of the layoff or business closure due to the pandemic, a previously injured employee was back to work at your place of business. The employee was not at Maximum Medical Improvement (MMI) from the prior injury at the time of the layoff or business closure. Is the employee eligible for TTD benefits?

Answer: Yes, in most instances. 

To be eligible for TTD benefits, the injured employee must: a) not be at MMI, AND b) not have returned to employment.[1] The injured employee's TTD benefits would probably have been terminated upon return to employment. If, however, in the event of a layoff or business closure due to the pandemic, the employee would arguably be eligible for re-initiation of TTD benefits, since upon layoff or business closure the employee was: a) not at MMI, AND b) no longer working -- thus meeting the statutory criteria for TTD eligibility. 

Note 1: These issues and potential exposure require a detailed factual analysis. Each and every claim needs to be evaluated on its own facts and merits. This hypothetical is merely offered as an example of potential TTD exposure in the event of a layoff or business closure. 

Note 2: TTD benefits may be terminated if and when a treating physician or IME physician places the claimant at MMI. 

Governor Beshear's Executive Order - Mandatory TTD Benefits

If an employee is restricted from working by a physician due to COVID-19 exposure and quarantined an employer has potential day one TTD exposure.  As previously summarized in the JHL Kentucky Covid-19 Update, dated April 10, 2020, the Kentucky Governor's Executive Order, dated April 9, 2020, mandates day one payment of TTD benefits for an employee exposed to COVID-19 and quarantined if and when certain criteria are met, including causation.[2] We recommend a thorough review of the Executive Order.

Note 3: The employer is entitled a TTD credit or offset for any concurrent unemployment benefits. 

JHL will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.

                                                                        H. Douglas Jones, Esq.

                                                                        djones@joneshowardlaw.com

                                                                        Mark W. Howard, Esq

                                                                        mhoward@joneshowardlaw.com

                                                                        Troy W. Skeens, Esq.

                                                                        tskeens@joneshowardlaw.com

                                                                        Margo J. Menefee, Esq.

                                                                        mmenefee@joneshowardlaw.com