The Indiana Court of Appeals reversed a workers’ compensation board decision and found a man was entitled to the full amount of temporary total disability he requested. His employer did not provide him notice about what would happen if he refused the sedentary job he was offered and the judges held he did not waive the issue.
William Gordon injured his left shoulder and neck while employed at Toyota in 2008. He attempted to return to work eight months after his injury, but left a few weeks later because he was unable to do a sedentary job Toyota placed him in. He had another surgery two years later, and the surgeon in that case expected a full recovery in six months.
The Full Worker’s Compensation Board of Indiana ruled Gordon was entitled to 30 weeks of temporary total disability, taking into account four weeks of recovery for the first surgery and six months of recovery for the second. Gordon had asked for the full two years that he was off work. He appealed.
This is the second time this case has come before the COA. The first time was in 2013 and the COA ruled there was not enough evidence in the record to decide the case. It sent the case back to the Worker’s Compensation Board.
The COA said Gordon terminated his employment because his work-related injuries prevented him from doing even the sedentary job he was offered at Toyota. Because of that, Indiana Code 22-3-3-11 applies, but the board made no determination whether Gordon’s refusal to do the work was justifiable, so the COA cannot rule on that alone.
However, the COA said Gordon was entitled to his full disability benefits because Toyota never gave him a notice setting forth the consequences of the refusal of employment under that section of the code, and thus could not deny him benefits based on Gordon’s refusal to do the work offered to him.
The board found Gordon’s argument on the notice issue was brought up for the first time at the full board arguments and thus he waived the issue. The COA disagreed and said he brought up the argument at the single board member hearing, and the burden shifted to Toyota to show it complied with the statute. Toyota did not present that evidence.
The case is