Greetings,
One of the more common questions I get is does the E/C owe Temporary Partial Benefits after a claimant is terminated from employment.
The answer is..it depends on why they were fired. (In most cases, if the Employer was not accommodating /offering light duty, you will still owe TPD regardless of why they were terminated)
If a claimant is terminated from light duty for “Misconduct” you do not owe TPD:
440.15(4)(e) If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.
The WC statute defines “Misconduct” below, but my own personal test is if you hear what they did to get fired and say to yourself… “oh wow, they are totally getting fired for that!” The statute uses words like disregard of standards of behavior and evil conduct. It is violent behavior, threats of violence, stealing, drugs, repeatedly putting others safety at risk, sexual harassment…etc….
440.02 (27) “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.
If the claimant was terminated for something not quite rising to “Misconduct’, you can still potentially deny TPD for at least awhile. This would be getting fired for no call/no show, poor performance, repeated tardiness, etc… If the Employer has light duty and would continue to have light duty for every week but for their termination, you can deny TPD. In these non-misconduct terminations, under the case law, the accident is not the major contributing cause of the loss of earnings.
However, the claimant can prove the accident IS the MCC by conducting a job search that is unsuccessful due to their work restrictions, and you may have to restart TPD. There is no clear-cut number of jobs or length of time you can fight TPD on these, it is a case- by-case basis. Nor does the caselaw say you have to explain this to the claimant.
As always, please let me know if you have any questions.
Hope to see many of you at our firm’s 10th Annual Tampa CEU Dinner on Friday, July 25.
Also please be sure to check our firm’s Events page for more upcoming free FL, GA and TN Webinars, CEU’s and events: https://eraclides.com/events/
Sincerely,
Morgan Indek | Managing Partner