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TTD moving back to center?

The COA issued their decision in Maker's Mark v. Clark, 2015-CA-000692 (not to be published) on December 4, 2015. The COA reversed the ALJ regarding TTD. Plaintiff was limited to one handed duty. Maker's Mark placed her back at ... 

The COA issued their decision in Maker's Mark v. Clark, 2015-CA-000692 (not to be published) on December 4, 2015. The COA reversed the ALJ regarding TTD. Plaintiff was limited to one handed duty. Maker's Mark placed her back at her regular job, but accommodated her restrictions. The ALJ specifically found that Clark was able to continue working her regular job during that period of time using only her left hand. She's right handed. Nonetheless the COA noted it was her regular job, albeit with only one of two extremities to accomplish the job. So no TTD.

There was another period of TTD that they reversed as well. Plaintiff was off work under restrictions by Dr. Farrage. However, he later rescinded his opinion. The COA found that Dr. Farrage's opinions that Clark had a permanent impairment rating, permanent restrictions and had not reached MMI was not credible. Accordingly, the medical reports of Dr. Farrage cannot form the basis for an award of TTD, especially in light of Clark's consistent claim that she was able to perform her regular duty work. And there was one other period of TTD, again based upon an opinion of Dr. Farrage, which he also rescinded later. They reversed that award as well.

Comment: Clearly it is unusual for the COA to reverse an ALJ on a substantial evidence issue. The Dr. Farrage flip-flop issue seems pretty simple. He didn't alter his opinions, he rescinded them. The ALJ cannot rely upon an opinion that no longer exists.

I admit that I was surprised by the COA decision than Plaintiff's one handed duty work was customary employment (they didn't say that, but that's what the essentially found). Is the TTD pendulum starting to swing back towards the center? Will we one day find ourselves back to the plain language of the statute: a return to employment? Let's hope so, that's the clear language of the statute.

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