August 2006 SBH Quarterly Newsletter
PDF FormatClaims Processing Change: Even if Worker Has Voluntarily Returned to Modified Duty, Get Physician Approval of the Modified
By Norm Cole
Older case law from the Board and the Court of Appeals held that workers
are not entitled to reinstatement of TTD when they leave work for reasons
unrelated to the injury. However, in a recent decision, Fidel Vivanco, 58
Van Natta 1677 (2006), the Board concluded TTD had to be reinstated
unless the attending physician had approved a job description of the
modified job the worker voluntarily performed.
Following a work injury, Vivanco voluntarily returned to modified work. His
attending physician was not notified of the specific duties the modified
work entailed and thus had not agreed claimant was capable of performing
them. Several months later, while still working the modified job, Vivanco
was terminated. SAIF stopped paying TTD. The Board relied on ORS 656.325(1)
to find the cessation of TTD was wrong and approval of a modified job by the
attending physician was a prerequisite to ending TTD payments.
The Vivanco decision is a significant change in the law. SAIF has filed an
appeal to the Court of Appeals and we will monitor the outcome.
Employers, insurers, and administrators can continue payment of TPD and
thereby avoid reinstatement of TTD only if the worker's physician has
reviewed and approved a description of the modified job. Although
Vivanco did not clarify if an employer/carrier must make a bona fide job
offer to an employee who is voluntarily performing modified work, making
such an offer protects your ability to continue payment of TPD if the worker
leaves the job for reasons unrelated to the injury.
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