Greetings,

In light of Castellanos, claimant’s attorneys are going to look for any avenue they can to find fee entitlement. 

As you know, if the claimant returns to work light duty and is earning 80% of the AWW, no TPD is due or owing.   However, often the claimant will miss time from work to attend therapy or doctor’s appointments, and this may cause them to fall below 80% of AWW.

The attached case is actually a Federal employment law case dealing with a claim for unpaid wages for missing time from work for attending WC doctor appointments.  The basic holding of the case is that an employer has to pay wages for the lost time; alternatively, it could be compensated under WC though.

Even if the employer is scheduling the claimant to work and earn 80% of his AWW, if they miss time for authorized medical treatment taking them below 80%, someone has to pay, either the Employer in wages or the Carrier in TPD.   Before you respond to a PFB stating no TPD is owed, check the post-accident earnings and ensure that any time missed taking them below 80% is a voluntary limitation and not medical appointments.

Of course there are the situations where the claimant does not return to work after the appointment in a reasonable time, but these are case by case.

---