MO Workers Compensation Defense: Use Caution when terminating TTD benefits for “Post-Injury Misconduct”
MO Workers Compensation Update (read time: 3 minutes)
The Missouri Court of Appeals recently reversed an award that was favorable to an Employer related to the termination of TTD benefits in Hicks v. Dept. of Corrections (March 2020).
Here, claimant injured his shoulder and underwent surgical repair. The treating doctor eventually released claimant to full duty work with no restrictions. Claimant did not believe that he was capable of returning to full-duty work and wanted to see another doctor. It took claimant months to obtain a second opinion stating that claimant was not capable of working at full duty status.
Because of the time delay from the MMI assessment to the date of the second opinion, claimant’s employment was terminated due to excess absenteeism. The IME report was eventually provided to the original treating physician, who agreed that further surgery was required and the treating physician subsequently ordered claimant to be off work.
During this time, Employer terminated TTD after claimant initially refused to return to work and was terminated, stating that the refusal to return to work amounted to “post-injury misconduct” because the employee failed to follow the Employer’s procedures.
The ALJ awarded TTD on the basis that claimant’s absence from work was due to the work injury itself. Employer appealed to the Industrial Commission who reversed the award for TTD, stating that claimant: “was terminated from his post-injury employment for post-injury misconduct” because he failed to comply with Employer’s policies by calling every day he was absent or make other arrangements with Employer to request additional leave without pay.
COURT OF APPEALS RE-INSTATES THE TTD AWARD
The Court of Appeals reversed the Industrial Commission and reinstated the award of TTD benefits, concluding that the Worker Compensation Statute didn’t allow for the termination of TTD.
Section 287.170.4 allows an Employer to terminate TTD for “post-injury misconduct” as follows:
“If the employee is terminated from post-injury employment based upon the employee’s post-injury misconduct.”…..EXCEPT: “the phrase ‘post-injury misconduct’ shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician.” Section 287.170.4
The Court of Appeals found that claimant missed work due to his workplace injury and, as such, TTD could not be terminated due to “post-injury misconduct”:
“[W]hile we agree with the Commission that Employer could terminate Hicks for misconduct by failing to follow the proper procedure regarding reporting his absences, the plain language of Section 287.170.4 does not permit the corresponding denial of TTD benefits when the absences are related to an injury unless the employee was capable of working with restrictions as certified by a physician.”
PRACTICE POINTS FROM THIS DECISION
The Employer in this case did nothing wrong at the time the decision to terminate TTD was made….but the Employer was merely the victim of a timing issue. At the time the Employer terminated employment, there was no physician stating that claimant was unable to work. The treating physician had released the claimant to return to full-duty work with no restrictions.
So, while an eventual reinstatement of TTD benefits is a risk associated with terminating benefits for post-injury misconduct, Employers SHOULD CONTINUE to terminate TTD if a claimant refuses to return to work with a full-duty work release.
In other words, while the Employer’s decision to terminate TTD was eventually reversed due to the subsequent development of evidence, it was still correct at the time it was made. The likelihood of the evidence developing the way that it did was remote and does not occur in most cases.
As such, if you are faced with a situation where the treating physician provides a full-duty work release and the claimant refuses to return to work, TTD benefits SHOULD be terminated due to post-injury misconduct as well as based on the evidence that the claimant can return to full-duty work. If medical evidence later develops casting doubt on the claimant’s ability to return to full-duty work, decisions can then be made regarding whether to reinstate TTD benefits retroactively based on the evidence presented.
If you would like to discuss the ramifications of this decision on any current claims you are dealing with, please feel free to call or email.