Monday, July 21, 2008

Light Duty Analysis

Light duty is difficult . . . and confusing.

From my view on the bench, large employers have effective light duty policies; and small employers don't have either the time or inclination to implement them. Even the best programs can promote a gamesmanship between the employer and worker that impedes completion of the workers' rehabilitation. The employer may look for reasons to terminate the worker for cause and thus end his TTD. The worker may appear for light duty and then leave saying he can't physically perform the tasks, thus creating a fact issue which he will attempt to prove by his own self-serving statements.

The rule summarized states: if a worker capable of light work fails or refuses to accept the employer's light-duty offer, TTD may be terminated.

Sounds easy, but the devil is in the details.

The Supreme Court has issued only two opinions, and they deal with simple, straight-forward issues. The Court of Civil Appeals has published a number of opinions, but they are not precedent. Confusion arises (at least for me) when COCA decisions relied on earlier cases that addressed the workers rights when he was capable of light work after reaching MMI. When the statutory "light work" term was later enacted, these old cases were applied to workers who were not at MMI.

Without trying to second guess the COCA or the Supreme Court, I have opened a new page on my website called "Light Duty Analysis" that assembles the reported cases. To me Smith v. Millwood Schools is a troublesome case because Smith's ability to receive temporary compensation was totally under the control of the employer who simply elected not to renew her contract. However, it arguably fits with the other COCA cases and will be followed by most judges at the WCC until we hear otherwise from the Supreme Court.


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