Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.

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Court of Appeals Reverses Itself in Hively: Claimant Not Entitled to Any TPD under Favinger

By Ralph Whitt

I wrote to you earlier this year (“Seven Cases Worth Knowing About”) regarding the case of Ross & Sons Utility v. Hively, an unpublished opinion in which the Court of Appeals found that the claimant had not marketed the extra hours his regular employment involved, but instead of holding that the claimant was not entitled to any temporary partial disability benefits under the Supreme Court decision in Ford Motor Co. v. Favinger, the Court of Appeals remanded the case to the Commission to calculate how much in compensation the claimant was entitled to under the circumstances. The employer requested that the panel of the Court of Appeals reconsider, and it did, reversing itself as to the remedy only and affirming the principle in Favinger that if a claimant fails to fully market his wages or his hours, he is not entitled to any compensation benefits during the period of refusal. This is a welcome sign that the Court of Appeals still recognizes what Favinger means, although it may have to be reminded from time to time.