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.
Hmmm… As defense-biased, I mean defense-oriented as I am, this seems to violate the no-fault nature of work comp. Also, the Gonzalez case pertains to retirement, where the injured worker intended not to work after a certain date. This injured beer-saver intended to keep working. And didn’t Walmart earn by its noble defense several years of treatment in a work-comp mill outside the MPN for which they are still liable?
I see what you’re saying – but the employer has the right to set policy such as this. Applicant is still receiving his other benefits (treatment, PD, etc.) so the “no-fault” spirit is still there. But the employer had work available for the applicant, if only he hadn’t been fired for violating firm policy. If he had not violated firm policy, he would not have had TD payments either – he would have just been back to work.
It’s unfortunate the way the facts fall in this case because applicant was trying to benefit his employer and he was trying to prevent a crime (in some respects, every citizen’s duty), but Wal-Mart gets to decide if it wants to put employees in harm’s way to prevent shoplifting, the applicant does not get to set policy for Wal-Mart.
Save the libations should be the rallying cry of all employees.
Notwithstanding, I read this case and the issue was this: Wal-Mart would have accommodated the employee in a light duty position if he was not fired for violating company policy. So that is the essential crux of the appeal sub judice. So this clearly means (at least to me) that he was paid TTD until such time that he was deemed able to work light-duty and thus, due to the termination Wal-Mart could not accommodate such position and therefore, Wal-Mart does NOT owe TTD benefits and that indeed was the holding.
For the record: Not a Wal-Mart fan. All of their dog treats come from China and we all know how that goes if you want to send your pooch to an early demise.
Chris – I’ll drink to that.
I think you’re right in that Wal-Mart would have to wait to receive some sort of work restrictions before cutting off TD. But, suppose he is seen by a physician on the day of the injury and the physician tells him he can return to light duty. As I read the panel opinion, applicant was fired after giving his account of what happened and his efforts to stop the thieves. The next day, he is let go, probably while being paid for the time he came in to give his account of what happened, and by then a modified-duty job could have been arranged.
In other words, quick cooperation between human resources and the comp adjuster can save some TD reserves.
Yep, they should have waited until he was full duty…LOL!! Just kidding…oh wait, they won on that. And honestly, who knows what else was going on in this case that is NOT in the record as well.
That’s true – you never know what really happened unless there’s a dissent!