No Temporary Disability for Fired Employees (Even Those Trying to Save the Beer!)
Temporary disability payments provide an applicant with 2/3rd of his or her income while applicant can’t (or won’t) work. What happens when applicant’s employment is terminated for cause while applicant is still “temporarily disabled”? The obvious answer is a 132a claim, but one can expect allegations of discrimination no matter how egregious the applicant’s conduct was during the time leading up to the firing.
In the case of Ramon Flores v. Wal-Mart Associates, Inc., there was no 132a claim. However, applicant was a door-greeter at Wal-Mart. He noticed two individuals trying to leave with boxes of beer and, suspecting them of stealing, tried to stop them. In a fit of alcohol-thirsty rage, the thieves knocked the brave applicant over and made their escape. The fall was the mechanism of injury. While giving his account of what happened, applicant was fired for violating firm policy.
My loyal readers may recall a similar case from the early days of this blog, where another employee exceeded his express duties of serving to “observe and report” by trying to catch bandits and sustaining an injury instead.
At trial in the Flores case, the defendant offered evidence that applicant as fired because he violated the company’s policy regarding shoplifting – a couple of cases of beer are not worth getting injured over, and they are especially not worth an employer paying the costs of a workers’ compensation claim.
In fairness to applicant’s position, your humble blogger must confess that the thought of perfectly good beer being kidnapped by thugs and eventually meeting a cruel fate in some horrid alley or parking lot triggers a considerable protective instinct that is hard to resist. Nothing would bring me greater joy than riding to the rescue of said beer and enjoying the sweet rewards such libations have to offer. Sadly, though, I am aware that we must all resign ourselves to helping the prosecution build a case against shoplifters and some amount of alcohol must be sacrificed in the process.
The workers’ compensation Judge ruled that applicant was entitled to temporary disability payments. The defendant filed for reconsideration and the Workers’ Compensation Appeals Board granted, reversing the WCJ. The reasoning in this case is key – citing Gonzales v. WCAB, the Board noted that temporary disability is a benefit which is paid while a worker is unable to work because of a work-related injury. Here, applicant was unable to work, but not because of a work-related injury. Instead, applicant was unable to work because he had violated a company policy and lost his job.
Wal-Mart deserves credit for having a clear company policy, regularly explained to the employees, and consistently enforced. If another worker had received a medal for trying to stop shop-lifters, Wal-Mart would have been paying temporary disability and 132a supplemental benefits as well.