Was Your Light Duty Job Offer “Made in Good Faith”?

A recent Supreme Court case addressed the conditions that must be met in order for an employer to terminate ongoing temporary total disability compensation based upon an offer of light duty employment.  Under O.R.C. 4123.56(A), once started, temporary total disability payments continue until: 1) the employee has returned to work; 2) the employee’s treating physician states that the employee is capable of returning to the employee’s former position of employment; 3) work within the physical capabilities of the employee is made available by the employer or another employer; or 4) when the employee has reached the maximum medical improvement. O.R.C. 4123.56(A).  A recent Supreme Court case, State ex rel. Pacheco v. Indus. Comm., considered an offer of light duty employment, and found that in order to terminate temporary total disability compensation, the offer must have been “made in good faith”.

In the Pacheco case, the injured worker was assigned work in the company cafeteria completing web-based training on a laptop computer and sorting paperwork.  Pacheco performed the job duties for three weeks, and then stopped showing up for work.  According to Pacheco, the job offer was not made in good faith because “by making him sit idly in public view” the company “was placing him on display as a warning to other employees”.  According to the employer, Pacheco was given productive work to do, and he was stationed in the cafeteria because it was close to the parking lot and restroom, to accommodate his medical restrictions regarding walking long distances.

The Industrial Commission did not address the lack of good faith argument in its order terminating temporary total disability, and the Supreme Court remanded the case to the Industrial Commission to address whether the job offer was made in “good faith”.  According to the Court, although Revised Code Section 4123.56(A) does not require that a job offer be made in good faith, Ohio Administrative Code Section 4123-3-32(A)(6) does, and the two must be read together.

I always advise my clients to make light duty work available for injured workers if at all possible.  It avoids any disruption in pay for the injured worker, and often results in a quicker return to full duty.  Employers need to keep the Pacheco case in mind however, and remember that a light duty job offer might be challenged on the grounds that it was not “made in good faith”.

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