FAQ: What if I turn down light duty work with my employer or voluntarily resign while on Temporary Partial Disability (TPD)?

While you are receiving Temporary Partial Disability (TPD) benefits, which are calculated based on 66 2/3% of the difference between your pre-injury wages and what you are able to earn after the injury, your ability to work significantly impacts your claim. TPD status typically applies when your physician releases you to light duty or modified work while still under active medical care.

A key concept in determining your benefits, particularly for permanent partial disability, but also relevant to temporary benefits, is your Loss of Earning Capacity (LEC). The objective in establishing an LEC is to determine as nearly as possible whether you can sell your services in the open, competitive labor market and for how much. As the claimant, you initially have the burden of proving your inability to return to your date-of-injury employment and demonstrating that you have made a good-faith effort to obtain other suitable employment or presenting expert testimony to establish your residual earning capacity. The burden of going forward with contrary evidence then shifts to the employer and carrier.

"Suitable" work is defined as a job where your residual physical and mental capabilities, education, and training match the job's requirements with specificity. "Reasonable availability" means it's reasonably probable you could secure the job regularly, considering the number of positions, competition, regularity, permanency, and the likelihood prospective employers would consider you despite your injury.

If your physician releases you to light duty or modified work, and your pre-injury employer offers you a suitable job within your restrictions, refusing this offer can impact how your earning capacity is assessed. While refusing a suitable job offer from your pre-injury employer does not necessarily mean you forfeit entitlement to an award of permanent disability benefits, your earning capacity may be assessed based on what you would have earned had you accepted that suitable job. This means that the wages you could have earned in the refused light duty position could be used to determine your earning capacity, potentially reducing or ending your entitlement to temporary partial disability benefits. It is generally considered economically advantageous to be released to and perform light work if you are capable, as compensation is based on the wage difference.

Regarding voluntary resignation or termination for reasons unrelated to your industrial injury, if your employment is lost due to factors unrelated to the injury, your earning capacity may be assessed based on the wages you could have earned from that employment. The employer or carrier can present evidence that the termination was due to economic conditions, business conditions, or other unrelated factors. Conversely, you can present evidence showing the loss of employment was due, in whole or in part, to the industrial injury or resulting limitations. Please note that a statutory amendment allows an employer to use a position as representative of an individual's earning capacity if its unavailability is due to worker misconduct and not the residuals of the industrial injury.

In summary, turning down suitable light duty work offered by your pre-injury employer or losing employment for reasons unrelated to your injury can lead to your earning capacity being assessed based on the wages you could have earned in that position, which can negatively affect your TPD benefits.