Employers may be liable for workers compensation payments even if a worker is disciplined. The Kentucky Court of Appeals very recently decided that a worker who came back on light duty – but was suspended for misconduct – still was eligible for workers’ comp temporary total disability (TTD) payments. This is because the worker remained physically unable to perform the same work he did at the time of injury. See Lexington-Fayette Urban County Government v. Bright, 2013-CA-000553-WC, Nov. 8, 2013). Bright was off work for a low-back injury, but his doctor allowed him to return to work with a 10-pound lifting restriction. The county put him back to work within that restriction. While working on light-duty, Bright was suspended for 128 days for leaving the workplace without permission. A week later, he was arrested for terroristic threatening because of a voice mail left for his supervisor. Some may disagree with such a ruling, but the Kentucky courts have repeatedly tried to keep injuries separate from purely management situations. This is so that an employee will not be penalized simply for being hurt on the job, and so that employers will not retaliate for such an injury. The Court of Appeals affirmed that in determining eligibility for TTD, it will look almost solely to the date that the worker is physically able to return to his customary employment, or the date he reached maximum medical improvement.
Stephen Burke is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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