no mod work because business forced to close (California)

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no mod work because business forced to close (California)

Postby cdixon on Fri Mar 20, 2020 12:54 pm

Applicant is injured at work and claim is accepted. He is on modified duties at the store. The store closes due to the virus - government mandated. All the employees get unemployment (tops out at $400). Does applicant get TTD, which is much higher?

Normally, I would says absolutely he gets TTD, but is this fair to the employer? The corona virus and the government's actions are out of the employer’s control. But for the virus, he would be able to accommodate mod duty. He wants the applicant to apply for unemployment just like all his other employees (I don’t see that happening). He also does not want it to get out to the other employees that they get more money if they file a work comp claim rather than file for unemployment.

Should EDD cover this period perhaps?
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Re: no mod work because business forced to close (California) (C

Postby mytwocents on Sat Mar 21, 2020 1:50 pm

It may not be the employer’s fault, but it’s not the employee’s fault either, and if he’s temporarily partially disabled and can’t obtain work within his restrictions, he gets TTD. It’s not like a situation where he was fired for cause while on modified duty. A lot of employers don’t have a modified duty job to offer in the first place and that’s not their fault either. As for laid off employees filing WC claims to get more money, the coronavirus layoffs may result in an increase in the number of post-term CTs instigated by cappers but it’s doubtful that paying this already injured/disabled worker TD would encourage his non-injured/non-disabled former co-workers to file fraudulent claims.
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Re: no mod work because business forced to close (California)

Postby feelin'it on Sun Mar 22, 2020 9:15 am

i believe partial td is to replace lost wages? Therefore if the business closes or for other business reasons the person's position ceases to exist then there is no further lost wages past the certain date, and therefore no TD. The TD derives from the expectation of wages. That's why a seasonal worker doesn't get TD past a certain date.
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Re: no mod work because business forced to close (California)

Postby octool on Mon Mar 23, 2020 10:37 am

This is not a simple issue. Technically, due to the shelter in place regs there is no job for the applicant regardless of whether he was injured or not. Thus, there is technically no wage loss as a result of his industrial injury. Where it becomes sticky is if the applicant claims that he would have been able to seek work in a job that was available but for the injury. As a result of TTD status or work restrictions they were not able to get work elsewhere.
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Re: no mod work because business forced to close (California)

Postby LawAdvocate on Tue Mar 24, 2020 3:33 pm

The above answer is not exactly correct in that 16 industries, deemed to be vital to the infrastructure are in fact working.

So you need to compare the injured worker's job to a similarly situated employee, are they working from home? Then the employer needs to make an offer or pay TTD.

Are they working in the 16 industries that were exempted by the executive order? Then there is no reason to not offer work, however if no work is offered, TTD is due and owing.

The next step is to use an analogy, if the business had closed in other circumstances would you pay TTD? If the answer is yes, which is actually well supported by case law.

In this instance, you pay the TTD and doing anything else is fool hardy.
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