Greetings, by special request, I am doing this tip on the effect  a termination of employment has on TPD benefits.

A.   If the claimant voluntarily resigns, and the employer was providing light duty with no loss of earnings in the 80/80 formula, you can deny TPD.  However, a few caveats from the caselaw:

1. The light duty must have been available throughout the entire time of your denial, every single week.   And we will need evidence at trial, such as an employer rep, that can testify that had they not quit, light duty would be available for every week that we denied TPD.
2. If you owed some TPD each week prior to the termination under the 80/80 formula, you still owe that portion of the TPD.  The fact they quit did not effect the hours not accommodated.
3. The denial may not go on indefinitely.   If the claimant can prove they are unable to get another job within their restrictions, TPD may have to be restarted.   After a surgery, I have seen JCC’s award TPD even if they had quit.  The timeframe for the denial is somewhat subjective on these, it’s a reasonable period of time.

B.   If the claimant is terminated for cause (not rising to the level of misconduct..see C. below), you can deny TPD, BUT again it is not indefinite.   The same 1-3 above apply in this situation most of the time.  These types of terminations are for things such as no call/no show, poor work performance, tardiness, etc….

C.   If the claimant is terminated for Misconduct 440.02(18), then  you can likely deny TPD for the entire claim if full time light duty was available the whole time.

440.15 (4)(e) says in part “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.”  And Misconduct is defined as really, really bad stuff.  It’s the types of things that you immediately say to yourself they are getting fired for doing.  Here is the definition:

440.02(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.

I mean they use the word “evil design”.   These would be actions like theft, violence, threats of violence, drugs, etc….Our firm did have a case where repeatedly ignoring safety requirements after being spoken to was sufficient because it put other employees at risk.  These fall under the you know it when you see it category.

As you can see each case is very fact specific.  We do have a CEU on TPD, let me know if you have any interest in us presenting it for you.

Thanks as always,

Sincerely, Morgan Indek | Partner