TTD Relief for Employers in Kentucky? – Peterson White, LLP

Many workers’ compensation claimants in Kentucky have been receiving TTD awards for time periods when they were working light duty, effectively allowing them to double-dip by receiving both wages and TTD. A couple of weeks ago, the Supreme Court of Kentucky may have improved our current situation regarding TTD and light duty in Kentucky. In Livingood v. Transfreight, LLC, 2104-SC-000100-WC (to be published), the ALJ had denied the claimant’s request for TTD while he was working light duty for 7 months. The Workers’ Compensation Board and Court of Appeals affirmed the denial of TTD. So did the Supreme Court.

Here are the facts. Livingood was a forklift operator. He sustained a shoulder injury and underwent 3 surgeries, resulting in various time periods off work and working light duty. He argued for TTD benefits during a time that he was working light duty and receiving his regular hourly rate. Immediately before his injury, he operated a forklift 100% of the time, but he had also changed forklift batteries and looked for misplaced freight in the past. While working light duty, he changed batteries 50% of the time, looked for misplaced freight 25% of the time, and monitored bathrooms for graffiti 25% of the time.

Livingood relied, in part, on Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), in which the Court stated that TTD should not be terminated when a claimant is released to perform minimal work rather than the claimant’s customary work. In this new Livingood opinion, the Court stated that Wise does not mean that workers who are unable to perform their customary work after an injury are always entitled to TTD. The Court noted that the injured employee in Wise was not actually working during the potential TTD period. His doctor had released him to work with restrictions, but he did not return to work before moving to Florida. Livingood was working light duty during the time period at issue. Even though the Court still seemed interested in a comparison of Livingood’s work duties before and after his injury, the fact that the Court distinguished Livingood from Wise since he was actually working could be a good sign for employers.

Although the end result in Livingood was a denial of TTD, it is important to note that the Supreme Court simply affirmed the ALJ. In order to overturn the ALJ (and award TTD), the Supreme Court would have had to find that the evidence compelled a TTD award. This does not necessarily mean that the Supreme Court would have overturned an ALJ’s TTD award with these facts, but it may be a step in the right direction. There are a couple of other TTD cases before the Kentucky Supreme Court right now, so we will have to wait and see how good this news is for employers with return-to-work programs that accommodate injured employees’ restrictions.

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