Is This Within Your Capacity? Determining a Claimant’s Entitlement to Temporary Partial Disability Benefits
By: Joanna Hair
During the course of workers’ compensation claims, claimants often work light duty, or less physically demanding jobs, due to their ongoing disabilities. If the job is with the original employer, the employer may work to ensure the claimant is able to earn her pre-injury wages. However, what happens in cases where a claimant is still working, but is not receiving her previous average weekly wage?
By way of example, we have Mary Lou the Manual Laborer. Mary Lou works a very physically demanding job which requires she be able to lift heavy equipment and be on her feet for hours at a time. For this job, she typically works 40 hours and earns $800.00 per week. Unfortunately, while working, Mary Lou herniates a disc in her low back. Her authorized treating physician puts her on light duty restrictions which include no lifting over five pounds, no bending and limited standing and walking. This means Mary Lou is unable to perform the physical requirements of her previous job.
Mary Lou’s employer identifies a less physically demanding position for her to perform. This position involves screening new applicants and helping with the orientation process. Though the employer is still able to offer Mary Lou the same 40 hours per week as before, this position pays only $10.00 per hour, because it is not as physically demanding. Therefore, Mary Lou only receives $400.00 per week, as opposed to her previous wages of $800.00 per week.
Under O.C.G.A. § 34-9-262, Mary Lou is likely entitled to temporary partial disability (TPD) benefits because her employer is unable to pay her the same pre-injury wage as before due to her diminished capacity. In such a case, Mary Lou would be entitled to receive two-thirds of the difference between her pre-injury average weekly wage and her current wages which in this case, is a $400.00 difference. Two-thirds of this would be $266.67. Therefore, in addition to her wages, Mary Lou would also receive TPD benefits in this amount each week.
However, let’s change the facts slightly. In this scenario, Mary Lou still has an $800.00 pre-injury average weekly wage and is on the same restrictions as before. Her employer is able to offer her a light duty job which complies with her restrictions and is also able to offer her the same number of hours as before. Thus, if Mary Lou performed this position, she would be able to earn the same $800.00 per week she got previously. Mary Lou attempts the position for a few days, but she really does not like the work. Paperwork has never been a passion for her, so while she is physically able to perform the light duty job offered, Mary Lou decides to search for a different job.
Mary Lou quickly finds a position working as a cashier at a local boutique. She is able to sit while she works and is not required to lift anything heavy. The position seems perfect for her. Unfortunately, this job only pays $15.00 per hour, and the employer is only able to offer her 30 hours per week, meaning Mary Lou is only earning $450.00 per week, as compared with her previous $800.00 pre-injury wage. She believes she is entitled to two-thirds of the difference under the TPD benefit statute. Is she correct?
The short answer, from the Court of Appeals, is no. Under Wal-Mart Stores, Inc. v. Harris, the Georgia Court of Appeals found that the diminution of earning capacity, rather than the simple diminution of earnings, was the determining factor in deciding whether an employee is entitled to receive temporary partial disability benefits. 234 Ga. App. 401, 506 S.E.2d 908 (1998). In that case, an employee declined the employer’s offer of full-time, suitable work and accepted a part-time position caring for an elderly woman. Because the employee voluntarily chose to accept a lower-paying position, even though a full-time position was available to her, the employer was not required to subsidize the difference between her pre-injury and post-injury wages.
Therefore, the next time you have a claimant on light duty restrictions who is earning less than her pre-injury average weekly wage, look not just to the numbers themselves, but to the underlying reason for a diminution of earnings. Is the employee voluntarily choosing to work a less lucrative position, or does her disability necessitate this? If the former, there may be a defense to TPD benefits. If the latter, you may need to commence TPD.
Attorney Contact Info
Joanna Hair
joanna.hair@swiftcurrie.com
404.888.6243