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Voluntary Abandonment and the Light-Duty Employee

5/23/2010 | Category: Workers Compensation-Voluntary Abandonment
Consider this workers’ compensation scenario:  

Joe injures his lower back while working for Acme Construction.  Joe immediately seeks treatment with Dr. Wright and is diagnosed with a lumbar sprain.  Dr. Wright is also of the opinion that Joe is temporarily and totally disabled.  The condition of Joe’s lower back improves after a month off work and a course of physical therapy.  Although Joe’s condition has improved, Dr. Wright still doesn’t feel Joe is ready to resume his normal work duties with Acme.  Dr. Wright issues Joe work restrictions, and tells Joe that he can return to light-duty work, within his restrictions, if Acme has anything available.  In an effort to get Joe back to work (and limit the amount of temporary total disability compensation paid in Joe’s claim), Acme comes up with a light-duty position for Joe that is within Dr. Wright’s restrictions.  Acme makes Joe a written, light-duty job offer and Joe accepts.  Joe returns to light-duty work with Acme, while continuing his treatment with Dr. Wright.

After being employed in the light-duty position with Acme for several weeks, Joe doesn’t show up for work on a Monday.  Acme calls Joe and the calls are unanswered and unreturned.  Joe is written up for a no call/no show.  Joe then misses work on both Tuesday and Wednesday.  Again, Acme attempts to contact Joe, but to no avail.  Joe is written up for no call/no shows on both Tuesday and Wednesday.  As per company policy, three consecutive no call/no shows are grounds for termination.  Joe finally shows up to work on Thursday.  He’s disheveled and reeks of stale beer.  After Acme confronts Joe about the serious violation of company policy, he casually explains that he got carried away on a weekend trip to Atlantic City.  Joe says he hit it big playing the slots and stayed to party for a few extra days.  Joe also tries to downplay his light-duty job, arguing that it’s not really an important job and Acme didn’t miss a beat by him not being there.  After hearing Joe’s sorry excuses, Acme decides to terminate him for his three consecutive no call/no shows.

After his termination, Joe visits Dr. Wright for a scheduled appointment.  Joe tells Dr. Wright that he is no longer working in a light-duty capacity because he was fired.  Dr. Wright examines Joe and still does not feel he is capable of working without restrictions.  Dr. Wright indicates that Joe is still temporarily and totally disabled.

Joe requests that his temporary total disability benefits resume as of his termination date, as per the opinion of Dr. Wright.  Acme is understandably upset.  Acme doesn’t feel Joe should be entitled to temporary total disability compensation since he was terminated from employment. 

Is Joe entitled to temporary total disability compensation?

Acme’s attorney will argue that Joe was terminated under circumstances that amount to a “voluntary abandonment” of his employment and that Joe is legally precluded from receipt of temporary total disability benefits.  Under the Louisiana-Pacific decision, termination constitutes voluntary abandonment of employment when an employee violated a written work rule that clearly defined the prohibited conduct, had previously been identified by the employer as a dischargeable offense, and was known or should have been known to the employee. 

Joe’s attorney, however, is quite clever.  Joe’s attorney will cite the Pretty Products and OmniSource decisions, which provide that an injured worker can only abandon his former position of employment if he was physically capable of doing that job at the time of the alleged abandonment.  Joe’s attorney will point out that Joe was only working in a light-duty capacity at the time of his termination.  As per Dr. Wright’s opinion, Joe’s attorney will argue that Joe was simply not physically capable of working in his former position of employment and was temporarily and totally disabled from said position of employment when he was terminated.  Therefore, Joe’s attorney will argue that Joe could not have voluntarily abandoned his former position of employment with Acme because he was undisputedly unable to return to his former position of employment with Acme due to his industrial injury at the time he was terminated.  Accordingly, Joe’s attorney will argue that temporary total disability compensation should be granted.

So, is Joe entitled to temporary total disability compensation?  Fortunately for employers, a recent decision out of the Tenth Appellate District has further solidified the proposition that when an injured worker is capable of performing work in a light-duty position, he can abandon that position.  In the Apostolic Christian Home decision from October 2009, the Tenth Appellate District relied upon their prior decision in Adkins and found that an injured worker’s return to light-duty work did not, as a matter of law, preclude a voluntary abandonment of employment for violation of a written work rule during the period of the light-duty employment.  The focus should be on the injured worker’s light-duty position and not the position he held when he sustained his industrial injury.  It was determined that it was possible for an injured worker to have abandoned a light-duty position if he was physically capable of performing it at the time of his alleged voluntary abandonment.  

Accordingly, based upon the decisions in Apostolic Christian Home and Adkins, Acme’s attorney will have a strong argument that Louisiana-Pacific still controls in this matter, and that Joe voluntarily abandoned all employment at Acme as a result of his violation of company policy and subsequent termination.  The fact that Joe was not working in his former position of employment when he was terminated is no longer dispositive.  Joe’s temporary total disability compensation should not be reinstated.

Questions or concerns about the scope of the “voluntary abandonment” defense?  Please do not hesitate to contact Anthony Baucco or any of the workers’ compensation attorneys at RBS to discuss this defense or any other workers’ compensation matter that’s on your mind.

Ross, Brittain & Schonberg Co., L.P.A.

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