Incarceration (California) (California)

[cement]

I haven't seen this in awhile, but one of my injured workers' is now incarcerated in a county facilty. At the time he was TTD. His TD checks were being returned in the mail. I then found out he was incarcerated. I've read Labor Code section 3370, but am not sure this applies since it references incarceration in a state facility. Can anyone shed any light on what I should do about his TTD benefits, since he can't see his doctor, I haven't gotten an updated disability status to continue.

[postscript2]

Hi Cement,

I've had many, many of these claims. Yes you may owe the TTD--or Not, depending upon the last PTP report. I would reserve the claim for TTD money going future-YOU could put it in a trust account..

What I used to do was send out a delay of TTD, due to the fact that there is no PTP auth continuing TTD. Also, remember when a person is "incarcerated," well, there are many things that happen in jail, etc., of which I'll leave to your imagination...

Does this I/W have an atty??? Can you get the PTP to visit he/she in jail??? Does the PTP know that the applicant is incarcerated??? I would definately send out a "delay" of TTD, pending verification of disability. If there is an AME involved, some will go to the facility and examine them.

I once had a case...Involved an I/W who was sent to prison for lifting kitchen cabinets (after stealing them) and caught on film. Was in prison for 3 years--but come to find out, he/she was on probation for many minor crimes. The back TTD was about 15K. I settled the case for 15K via C&R to lose it.

As it turned out, the prior C/A and D/A knew of the prior incarcerations and kept sending the checks. They were cashed by a
"friend." The I/W was detained in Oregon or Washington, can't remember. However the prior C/A spent $$$$$$$ on 3 knee replacements, while all of this was going on. I managed to get an AME into the detention facility and C&R an otherwise $100k plus claim down to $15k.

Please do send out the delay of TTD ASAP to CYA. (I hate acronyms) Also got the AME/PTP go to the prison.

Best of luck to you!

LCS

[stewshe]

Cement,

I once had an EE write to complain, while incarcerated, his former wife was cashing his TD checks and he wanted it stopped! I sent him a copy of L.C. 3370(d), pointing out TD is to be paid to "dependents" which is defined to include a "former spouse due to divorce and the inmate's children from that marriage."

He still wanted it stopped and I told him several times that was not going to happen. I felt like telling him what my wife used to tell our kids when shopping with them in a grocery store and they were constantly saying, "I want this," or "I want that." She'd tell them, "People in hell want ice water!"

Stew

[50Cal2]

I find it amazing how many insurance companies pay claimants who are incarcerated, only to have both the employer and claims adjuster gripe about the law. It is not that difficult to discontinue paying TD while someone is incarcerated. All that needs to be done is to obtain a release to mod duty from the doctor listing all the restrictions. Then the employer is to make a good faith offer of modified duty to the employee in full compliance with the medical restrictions. The offer should be sent to the last known address (with a copy to the prison, if known) giving the employee a specific date and time to report to modified duty. If he doesn't show up, that's his problem and TD can be discontinued. A prisoner is not entitled to greater benefits than anyone else. In fact, a prisoner should not to be rewarded for being in jail. I have made such offers 5 times to 5 different inmates. None have shown up for mod duty and in each occasion TD has been successfully discontinued. The key is that the offer of mod duty must be in good faith where if by some chance the inmate does show up for work, the modified job is available for him to perform.

[jpod]

While I agree in some cases that may work there is the inherent problem of whether the report that releases the incarcerated employee to light duty can be considered substantial evidence if the doctor had not seen the employee in some time. How could the doctor know about the employee's ability to perform light work? I agree in some cases the doctor may have a basis to so conclude, and be able to write a report that can be the basis for a WCJ's findings, but it is not always a slam dunk.

[postscript2]

50 Cal:

How did you maneuver such an offer/tender to rtw via modified duties and EXPECT someone whom is in JAIL/PRISON -- actually be able to legally accept such an offer? IMHO, although this is a valid offer...How do you expect them to show up for work? Via a ball and chain, in prison stripes with a conditional release from their Parole Officer??? Oh ya, they are still incarcerated...

Well, good luck on the "chain gang..." Not that I don't appreciate the creative way in which you approached this! I DO. House arrest would provide the I/W with some nice leg "anklets..." But again -- they are still incarcerated.

"-splain please..."

LCS

[50Cal2]

LCS: I really don't anticipate that an incarcerated employee would show up for light dutywork. But whether or not the employee is expected to show up for work is not the issue. The issue is how to properly and legally terminate TD while someone is in jail. Modified work, when available, should be offered to every injured employee to reduce workers' compensation costs and to prepare an employee for his eventual return to full duty work activities. An incarcerated employee does not have greater rights than other employees. Everyone is equal. Therefore, if a bona fide modified duty job is available and offered in good faith, it makes no difference whether or not the employee is incarcerated. If he can't show up for work, that's really his problem, but at least the employer no longer continues to incur additional TD costs simply because the injured worker happens to be in jail. Employees are not be rewarded for being incarcerated, but instead are to be treated equally by the workers' compensation system. They will be treated like every other employee who does not show up for light duty work. Their TD benefits will be legally and properly terminated.

[postscript2]

Gotcha! You are following procedure and thats the most important thing. These incarceration cases are very difficult to handle. I believe I recently posted one about an I/W incarcerated in another state and the belief of the defense was that the I/W suffered multiple injuries post original claim via theft and we ended up cutting our losses. We paid NO P.D., just C&R'd the claim for about $15k to resolve ALL issues and avoid a $100k plus settlement had I and D/A not worked closely together on this one.

Good luck, please keep me posted on the outcome???

LCS

[mike@mikeslaw.com]

For what it's worth, here's what my book (Sullivan ON Comp, section 9.19) says on the topic:

"INCARCERATED EMPLOYEE
An employee who is injured before being incarcerated in a state penal or correctional institution is not entitled to receive workers' compensation indemnity benefits while in prison. If an employee who has been released from incarceration, and who has received workers' compensation benefits, is re-incarcerated in a city or county jail, or state or penal correctional institution, the benefits immediately cease upon re-incarceration, and are not paid for the duration of the re-incarceration (LC 3370(a)).

But this does not relieve an employer from liability for temporary disability. LC 3370(d) provides that temporary disability benefits that would have been payable to the inmate during the period of incarceration for an injury prior to incarceration are payable to an inmate's dependents. A dependent is defined as "the inmate's spouse or children including an inmate's former spouse due to divorce and the inmate's children from that marriage."

If the inmate does not have dependents, the inmate's temporary disability benefits are paid to the state treasury to the credit of the Uninsured Employers Fund during the period of incarceration. The money is not held in trust for the employee –– the employee has no right upon release from incarceration to payment for any periods of temporary disability during the incarceration. Temporary disability payments will only become payable directly to the employee if the employee is temporarily disabled subsequent to being released from incarceration.

Note that LC 3370(d) is applicable to state penal inmates, not inmates incarcerated in a county jail. A county jail inmate may still be entitled to temporary disability payments.[5] But per LC 3370(a)(3), if an inmate who has been released from incarceration is re-incarcerated in a city or county jail, or state penal or correctional institution, benefits must immediately cease and must not be paid for the duration of the re-incarceration."