The “Harsh” Rule Denying TTD Benefits to Injured Workers Who Aren’t Actually Working at the Time of Disability is Alive and Well, as it Should Be.

There were a lot of problems for the claimant in Vohnoutka v. Ronnie’s Cycle Sales, Op. No. 16-17WC (undated as published), not the least of which that his treating physician discharged him for further care with a diagnosis of “malingering”.   He nonetheless pursued his claim for TTD (and other benefits) to the Formal Hearing docket, without an attorney.  The result was a ruling from ALJ Phillips granting summary judgment in the Employer’s favor.  There are a couple of take aways from this Ruling:  First, and perhaps the most significant:  The DOL did not accept the opinion of two of claimant’s physicians that he was “100% disabled” pending orthopedic referral, given the complete absence of any objective evidence of disability.  It was in ALJ Phillips’ view apparently no different than the claimant disabling himself.   In practice of course, claims adjusters see these OOW notes from primary physicians all the time.  Perhaps Vohnoutka can be cited at the informal level to persuade the DOL Specialists that further scrutiny can and should be given to disability notes that are based exclusively on a claimant’s subjective report?  The second take away is that the Department again confirmed its commitment to the principle that if an injured worker is not actually working at the time that he or she is disabled from work, he or she doesn’t get disability benefits, with only limited exception.   The rule can be harsh.  Think of the injured worker who continues to struggle with pain throughout the work day while waiting to get in to see her  doctor, and is fired for performance reasons the day before the appointment, where she is medically disabled from returning to work.   She in theory would be denied TTD benefits for her work-related disability because now, the reason she isn’t working is because she was fired.   But in the more typical scenario, like in the Vhonoutka claim, there is a longer period of time during which the injured worker was not disabled by a medical provider, and didn’t try to find another job, despite that his injury did not prevent him from doing so.   With that failure to find work, comes the loss of entitlement to TTD.   And this makes perfect sense.