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Is There TTD After Retirement? As Always – It Depends

Hello, dear readers!  A fresh new week and a fresh new blog post… what could be better?

I bring to your attention today the matter of Moore v. Pasadena Area Community College District, a writ-denied case in which applicant sought temporary total disability benefits for a period of time after she retired.

The claim of Ms. Moore involved both orthopedic and internal/psyche injuries, but as the compensability of the internal/psyche was in dispute, the parties proceeded to trial on the issue of whether Ms. Moore, who resigned her employment in May of 2011, but continued working until some time in August of 2011, was entitled to temporary total disability benefits from July of 2011 to August of 2012, the date she was made permanent and stationary by her primary treating physician.

The WCJ had awarded temporary total disability benefits, but the WCAB reversed, and the decision hinged on the wording of the retirement letter and the subsequent deposition testimony.

The substance of the resignation letter appeared to be related to applicant’s stress and the allegedly hostile work environment that had been building up.  The WCAB relied on the case of Gonzalez v. WCAB (1998), wherein the Court of Appeal noted that the reason for the retirement is paramount – if the retirement is because of the injury, then there is potential for compensable periods of temporary disability.  However, if the retirement reflects a worker’s “willingness to work,” or rather, lack thereof… well, I’ll let Mr. Wonka communicate the result:

In this case, applicant has two claims: orthopedic and psyche.  The retirement letter and subsequent deposition testimony reflects that orthopedic injuries were not the reason for her retirement, especially since she continued working for roughly three months post the retirement letter.  By contrast, the psyche claim might fit in with the resignation letter, but compensability is still in dispute there, and the that issue was not set for trial.

Now, hypothetically speaking, let’s say an applicant retires, and cites the industrial injury as the reason is there anything the employer can do to avoid tacking temporary disability benefits to the applicant’s pension?  If the employer can genuinely accommodate the work restrictions of the injured worker, even a retired injured worker, one would think that service of a Notice of Offer of Regular/Modified/Alternative work should do the trick.  And, on top of that, the employer might be in a position to not provide the actual work, but avoid TTD liability by showing it could have provided the work if the injured worker had not retired/resigned.

What do you think, dear readers?  Should the motivation for the retirement matter as to TTD benefits?  Or should retirement cut off all TTD, regardless of reason?  Help yourself to an Everlasting Gobstopper on your way out…

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