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Practical Advice In New Jersey Workers’ Compensation
The general rule is that an injured worker is entitled to TTD for the time frame that the authorized treating doctor placed the employee out of work.
Pursuant to Monaco v. Albert Maund, Inc., (App. Div.), (App. Div. 1952), generally, TTD continues until the employee is able to resume work or until the employee “is as far restored as the permanent character of the injuries will permit” [placed at MMI], whichever happens first. This means that TTD can cease in either of the following situations: a. The employee is placed back to work and authorized treatment is ongoing and continuing; or b. The employee is placed at MMI from treatment, even if the employee is discharged with permanent work restrictions (irrespective of whether the restrictions can be accommodated).
In addition to the above rule, there are some tricky situations where TTD benefits may be stopped for other reasons. Below are hypothetical situations regarding TTD, and how we would recommend handling each scenario.
Scenario 1: Bob works for a large retailer and is injured on February 2, 2022. Bob is receiving authorized treatment and is initially not placed out of work. On March 14, 2022, Bob is caught stealing from the register at work, as well as stealing $4,000 worth of merchandise from the electronics department. The authorized doctor places Bob out of work as of March 17, 2022; it is anticipated he will be out of work for a few months. After an investigation into the theft, Bob is terminated for cause on March 28, 2022. The employer pays TTD from March 17, 2022 through the date of his termination, March 28, 2022. Bob alleges that he is owed TTD from March 17, 2022 onward, as he was placed out of work by the authorized doctor on March 17, 2022 and has not yet been returned to work.
Our position is that Bob is owed TTD only for the date range of March 17, 2022 through March 28, 2022, the date of the termination.
There are quite a few cases dealing with this issue. In all of the cases, the main point comes down to this: The purpose of TTD is to compensate for actual lost wages. As such, in a situation like this, our position would be that Bob is not owed TTD after March 28, 2022.
The most important case on this scenario is , 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006), where the Court stated that Cunningham must “prove that he actually lost income…because of his disability”. The Court noted that TTD is wage replacement for “actual lost wages”, and not “theoretical or fictitious wage loss”.
The Court in Cunningham was guided by the holding of , 154 N.J. 531 (1998). In Outland, the Court held that in order for a teacher who teaches during the school year to be entitled to TTD during the summer months, she must prove that she would have had summer employment. The case of , No. A-0667-10T4 (App. Div. October 11, 2011) also deals with an employee terminated for misconduct (in that case, violation of the employer’s drug policy), and the holding of Gioia makes it clear that TTD is for actual lost wages, not theoretical lost wages. In a case where an employee is terminated for cause, at the point of his termination, he no longer has wages. If there is no actual wage loss, TTD is not owed.
Scenario 2: Nate has been placed out of work by the authorized doctor and is not working. TTD is being issued. The authorized doctor, on May 15, 2022, recommends that Nate undergo a shoulder surgery. Nate receives all surgical clearance and on May 22, 2022, the authorized doctor schedules the surgery to occur on June 5, 2022. However, Nate has a pre-planned vacation June 4- June 18. Then he is moving residences during the end of June, and then will have family visiting during July as well as various other summer activities, so he wants to push the surgery back until at least August 15. Nate asserts that he is entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.
Our position is that Nate is not entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.
Nate is refusing treatment, for reasons that are not related to any health or medical issues. An employee not complying with the authorized doctor’s treatment plan, and treatment schedule, based on a personal reason or personal preference, is not entitled to TTD benefits.
Our position is that if petitioner is not actively treating, or is missing appointments, he is not entitled to TTD under N.J.S.A. 34:15-19, which states that after an injury, an employee must submit himself for physical examination within this state, as often as may be reasonably requested, and, “the refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal”. Since Nate is failing to, or refusing to, comply with treatment and is not cooperating with authorized treatment, he is not entitled to TTD during his non-cooperation.
Scenario 3: Ronald, an electrician, was injured on January 15, 2022. The authorized doctor places Ronald out of work February 10 through March 1, 2022. On March 2, 2022, Ronald is released to work light duty; the doctor noted that full duty was anticipated on or around April 2, 2022. The employer can accommodate light duty work and can pay Ronald his usual salary in his temporary light duty position; Ronald was offered the light duty position on March 2, 2022. Ronald refuses the light duty position, as he does not want to work “desk duty”; Ronald maintains he is owed TTD from March 2, 2022 through April 2, 2022 (or whenever he is in fact returned to work full duty).
Our position is that Ronald is not entitled to TTD as of March 2, 2022, the date that light duty was offered, and declined.
We recommend relying on , 211 N.J. Super. 614 (App. Div. 1986) in a situation like his. If the employee is offered a light duty job, and the employee refuses the light duty job, the employer can terminate TTD upon the refusal. For this reason, it is a good idea to put the light duty offer in writing, dated, and reference the date that the authorized doctor placed the employee back to work light duty, and the date light duty could be accommodated, particularly as under , 239 N.J. Super. 528 (App. Div. 1989), “the burden is on the employer to show that light work was offered to [the employee] and that it was refused”.
The above scenarios re-emphasize two important things to keep in mind with respect to issuance of, and entitlement to, TTD benefits: (1) TTD is to compensate for actual lost wages; and (2) An employee’s refusal to comply with offered light duty and/or the authorized doctor’s recommended course of treatment may be cause for TTD to be terminated.
-------------------------------Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at firstname.lastname@example.org.