Probably one of the most commonly litigated benefits is TPD after a claimant is terminated or quits. In fact, I just had a trial on the issue (the good guys won).
There are a few different scenarios:
- Claimant terminated for Misconduct– If a claimant is terminated from post-injury light duty employment, their right to TPD ends for good per 440.15(4)(e). Misconduct is defined under 440.02(18), and its really really bad behavior, or repeated pretty bad behavior. It has to be really bad stuff, violence, drugs, stealing, etc….
(18) “Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.
- Claimant terminated for cause – This means there was a reasonable reason for them being fired, no call no shows, violating policies, etc….This is one where there is some confusion because of the Wyeth v. Toscana case from several years ago. If the employer was not accommodating light duty, you still owe TPD. If the employer was accommodating light duty prior to termination, and would have continued to do so for every week had they not been fired, you can deny TPD. The burden shifts to the claimant to show that the accident remains the major contributing cause of the loss of earnings. One way the claimant can prove entitlement to TPD is a good faith unsuccessful job search. There is an argument that the claimant should not get TPD even so for a period after being fired while they are starting their search, a few weeks or so.
- Claimant resigns– . If the employer was not accommodating light duty, you still owe TPD. If the employer was accommodating light duty prior to the resignation, and would have continued to do so for every week had they not quit, you can deny TPD. Arguably the claimant can still prove entitlement after a period of time as above. One exception to this is if the claimant moves away from a light duty job. Unless you can prove the only reason the claimant moved was to avoid light duty, you would owe TPD.
I attached the link to the order in my case from the JCC, he does a very good job of going through the standards above. And as always, you need to balance the litigation costs and risk of claimant attorney fees with the TPD exposure.
Morgan Indek | Partner