Court of Appeals Rules that Voluntary Retirement Bars TTD/TPD Benefits
By Atty. Ken J. Kucinski
In a decision dated August 27, 2019, the Court of Appeals of Wisconsin held that an employee who chose to voluntarily retire while undergoing treatment for a conceded work injury was not entitled to any temporary disability benefits because she had chosen to retire for reasons completely unrelated to the conceded work injury, and therefore could not establish that she had suffered any actual wage loss due to a work-related injury. The Court of Appeals reasoned that the employee’s wage loss was due, entirely, to the employee’s personal decision to retire and therefore no TTD/TPD was allowable.
The facts of the case are essentially as follows:
The applicant, Janet Mueller, was hired by Ashley Furniture in 1997 to work as a furniture assembler. In October 2013 the applicant injured her right shoulder while lifting a heavy piece of furniture, and began submitting to medical treatment and was placed on light duty.
The applicant then submitted a written notice of resignation to Ashley Furniture approximately four months after the shoulder injury had occurred, which explained that she was “retiring.” Ashley Furniture accepted the resignation and the applicant formally retired, effective March 14, 2014.
Then, in June of 2014, the applicant underwent right shoulder surgery to repair the effects of the conceded work injury. Her treating surgeon ended up rating end-of-healing and assessed 5% PPD on the one-year anniversary of the surgery. Ashley Furniture paid for the surgery costs and paid the 5% PPD. However, Ashley Furniture did not concede and did not pay any TTD or TPD from the date of retirement through end-of-healing, taking the position that those benefits were not allowed on account of the applicant’s choice to retire.
The applicant proceeded to file a Hearing Application with the State, arguing that she was entitled to TTD/TPD from the date of retirement through end of healing following the surgery. The case was subsequently tried before an ALJ, who concluded that TTD/TPD was not payable because the applicant “did not retire because of her work injury.” The applicant then appealed to the LIRC, and LIRC affirmed, holding that “the ALJ properly found that the applicant voluntarily retired for reasons unrelated to her work injury.”
The case eventually made its way up to the Court of Appeals. In reaching its decision, the Court of Appeals explained something that is fundamental to proving entitlement to TTD/TPD, but is oftentimes overlooked by practicing attorneys, which is:
“…that an employee seeking temporary disability benefits…must show that he or she has suffered an actual wage loss attributable to a work-related injury.” (Emphasis added).
Oftentimes attorneys (and particularly applicant’s attorneys) make the mistake of believing that TTD/TPD is automatically payable if an injured employee is simply within the so-called “healing period.” But simply being in the “healing period” is not enough. To be entitled to TTD or TPD the injured employee also has to prove that he or she has sustained an actual wage loss and that the wage loss is causally related to the injury. Only then is TTD or TPD payable.
In this particular case, the applicant simply failed to prove (by documentary evidence or testimony) that her decision to retire was in any way related to her shoulder injury. Instead, the applicant testified that she chose to retire because she “wasn’t really getting along with my girls that I worked with.” Accordingly, the Court of Appeals concluded that the wage loss she experienced post-retirement was not causally related to her work injury, and dismissed her case.
The impact of this case is two-fold. First, it re-affirms the insurance carrier and employer’s ability to manage the costs of their claims by offering light duty work to their injured employees. This is what Ashley Furniture and its insurance carrier did in this case. It also clarifies what the consequences are for injured employees who choose to refuse to perform light duty work, or who take it a step farther and choose to resign altogether.
If you have questions about how this recent ruling may affect claims you are handling, please feel free to contact us. For readers interested in reviewing the decision for themselves, please visit: