By: James Colquitt, Associate, Orlando

 

A common source of confusion is entitlement to TPD benefits after a claimant is terminated. It is no surprise that this is a frequently litigated issue.

With regards to the burden to establish a causal connection between a claimant’s compensable injury and subsequent wage loss, the test used to determine whether physical limitations after an accident are a contributing causal factor to a loss of wages is whether (1) a claimant’s capabilities allow her to return to and adequately perform her prior job with the employer, and (2) whether the workplace injury caused a change in employment status resulting in a reduction of her wages below 80% of her pre-injury average weekly wage. See Alie v. Crum Staffing, Inc., 41 So.3d 1007 (Fla. 1st DCA 2010).

However, if the work restrictions do not preclude the claimant’s ability to perform the duties of her pre-injury employment, then evidence of an unsuccessful job search is an alternate means by which a claimant may establish a causal relationship between her compensable injuries and her temporary partial wage loss. See Thayer v. Chico’s FAS, Inc., 98 So.3d 766 (Fla. 1st DCA 2012).

Once a claimant meets her initial burden of establishing a prima facie showing of a casual connection between the compensable injury and the subsequent loss of income, the burden shifts to the employer to prove that during the period where TPD is claimed, a defense should prevent a claimant from being entitled to TPD. See Wyeth v. Toscano, 40 So. 3d 795, 800 (Fla. 1st DCA 2010).

The question is if the employee is terminated and not at maximum medical improvement, is the employee still entitled to temporary partial disability benefits?

If the employee is terminated from post injury employment based on the employee’s misconduct, temporary partial disability benefits are not payable. F.S. 440.15(4)(e). In other words, their right to TPD ends for good. But what is misconduct? “Misconduct” includes, “(1) conduct evincing such willful or wanton disregard of the 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 (2) 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.” F.S. 440.02(18).

Again, what does all that mean? Unfortunately, this defense is very fact dependent. Misconduct is extremely bad behavior. While a violation of an employer’s policy may constitute misconduct, repeated violations of explicit policies, after several warnings, are usually required. Ash v. Fla. Unemployment. App. Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004) (quoting Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001)). However, single act instances such as stealing, drugs, or violence may constitute sufficient disqualifying misconduct so as to warrant denial of benefits.

As you can see, misconduct is a very difficult standard to prove. If this defense fails, and it often does, there is still may be an argument that at the very least, the claimant was terminated for cause and has voluntarily limited her income. This can result in quite a bit of confusion. Termination for cause means one was fired for a rational reason such as a violation of company code of conduct. If the employer was not accommodating light duty, the employer/carrier would still owe TPD.  If the employer was accommodating light duty prior to termination, and would have continued to do so for every week had the claimant not been fired, the employer/carrier can deny TPD. The idea is that, but for the employee’s termination for cause, light duty work would still be available to the claimant with no loss of earnings. Any loss of earnings after the claimant’s termination would be due to employee’s termination for cause and not due to work restrictions.  The burden then shifts to the claimant to show that the accident remains the major contributing cause of the loss of earnings.  One way the claimant can still prove entitlement to TPD is a good faith unsuccessful job search.   

Of course, as with any defense, an appropriate cost benefit analysis should be performed. TPD exposure should be balanced with the cost of potential litigation and attorney fee exposure.