Over the course of the last twenty-five years there have been numerous appellate court decisions which have denied temporary total disability compensation to clearly disabled individuals on the basis that they had been fired for violations of company work rules, and therefore were not entitled to compensation. Typically, these decisions have reasoned that when firing results from a workers’ intentional violation of work rules, it can be treated as a “voluntary abandonment” because it was the result of some intentional misconduct which the fired employee willingly undertook. I am pleased, given this background, to be able to share news of a recent Court of Appeals decision captioned State, ex rel. Cline v. Abke Trucking Co. which bucked the trend of the last several years and reversed an order in which the Industrial Commission had denied temporary total compensation on the basis of an alleged “voluntary abandonment” of employment.
Mr. Cline, was injured on the job in 2008 while working as a truck driver. His injuries temporarily prevented him from driving a truck, and he was assigned by his employer to an off-site light duty job doing office work for the local American Red Cross office. In early 2009, he was released to return to work, and contacted his employer. Before he could return to work, he received a letter from the employer terminating his employment. The employer said his employment was terminated because he had a diabetic condition which made him medically unqualified to return to work as a truck driver, and it also accused him of falsifying time cards related to his off-site light duty job. Mr. Cline quickly found a new job, but was having increasing symptoms from his work-related injury which were making it difficult for him to perform the job to his new employer’s expectations. He had an appointment to see his doctor on July 1, 2009, but a few days before that appointment, he was fired by the new employer.
Mr. Cline’s doctor and a BWC examiner agreed that he had developed recurrent symptoms from his work-related injury, and should be regarded as temporarily totally disabled due to that injury as of July 1, 2009. The Industrial Commission, however, denied temporary total compensation, ruling that Mr. Cline was ineligible for benefits because he had “voluntarily abandoned” his first job, and was no longer employed by his new employer on the date when his doctor certified him as once again disabled by his industrial injury.
The Court of Appeals made several important observations in its ruling that Mr. Cline was improperly denied temporary total disability compensation. The court held that the doctrine of voluntary abandonment could not be applied to being fired for having diabetes, as having a disease is not a voluntary act. It could not be said, therefore, that his employment was terminated because he intentionally violated a work rule.
Addressing the accusation that he falsified time cards while working off-site, the court ruled that the Industrial Commission was not permitted to rely on the employer’s mere accusation of misconduct. When an employer contests liability for temporary total disability based on voluntary abandonment, it is required to produce evidence sufficient to support an independent determination by the Industrial Commission that the claimant actually committed the act for which the employer claims he was fired. Because the employer never submitted the allegedly falsified time cards to the Commission the court found that it had failed to produce evidence to support its accusation. Without such evidence, there was no evidence in the record from which the Commission could find that the alleged misconduct took place.
Finally, the court addressed and rejected the Industrial Commission’s argument that Mr. Cline was ineligible for compensation beginning on July 1, 2009 because he had been fired from his new job shortly before that date. The court held that even though Mr. Cline’s new job did not work out, the fact that he sought out new employment and attempted to continue working after being fired by his original employer showed that he had never intended to abandon the work force. Finally, the court noted that the loss of the new job just days prior to his doctor’s renewed certification of temporary total disability compensation did not automatically eliminate his entitlement to temporary total disability compensation in the face of undisputed medical evidence showing he was once again disabled by his injury.
This decision offers several critical points to keep in mind when confronting an employer’s argument that temporary total compensation should be denied based on “voluntary abandonment” :
- For firing to be “voluntary” it must result from intentional misconduct.
- The Commission cannot simply accept the employer’s allegations of misconduct. The employer must offer evidence to prove its allegations.
- Unemployment at the time a new period of medically-documented disability begins does not automatically bar payment of compensation.