• Archive for August, 2017

    TTD Termination Due To Employee Misconduct

    Monday, August 14th, 2017

    TTD Termination Due To Employee Misconduct

    Temporary Total Disability (TTD) compensation is payable when an employee is unable to perform his or her regular work due to a compensable injury.  IC 22-3-3-7 (c) (5) allows for the termination of TTD where “the employee is unable or unavailable to work for reasons unrelated to the compensable injury.”  Some employers have taken the position that said statutory section applies where the employment has been terminated due to employee misconduct. The recent Court of Appeals decision in Masterbrand Cabinets v. Waid holds otherwise.

    Waid had a compensable injury and had been released to return to his regular work by the company doctor. He did so but complained that he was in pain and needed restrictions. He got into an argument with his supervisor and threw his ice pack. His actions resulted in his employment being terminated. The company doctor imposed work restrictions when he next evaluated Waid. Masterbrand took the position that it did not owe TTD because Waid was unavailable for restricted work for reasons unrelated to the compensable injury since Waid was no longer an employee.

    The Court of Appeals held that IC 22-3-3-7 (c) (5) does not require that the work be for the same employer as when the employee was injured. So, even though Waid had been let go by Masterbrand, “the relevant inquiry is whether his inability to work, even for other employers, was related to his injury.” Since the Board had found that Waid was unable to perform work of the same kind or character as that which he had performed for Masterbrand and thus met the definition of TTD, the Court of Appeals concluded that TTD was payable despite Waid’s termination for misconduct.

    Employers need to anticipate the possibility for disagreements related to post-injury returns to work and be prepared to diffuse such disagreements before the situation escalates. When faced with an employee’s claim that the return to work, whether regular or light duty, is difficult or impossible due to the work injury, the most reasonable course to take is to remove the employee from the work and return the employee to the company doctor for a re-evaluation of the employee’s ability to work. The exposure to some TTD compensation is preferable to an altercation at work and a termination of employment which results in the loss of the employer’s right to tender appropriate work in lieu of TTD.