Termination for Cause and Subsequent Wage Loss

The Administrative Law Judge (ALF) found claimant was responsible for her termination and subsequent wage loss, even though claimant’s work restrictions increased following her termination.

Claimant sustained a compensable injury to her wrist and was offered modified duty by her employer. She worked the modified duty until she was a no call/no show for her shift on August 3, 2018. Claimant was terminated for the no call/no show, which was a violation of employer’s attendance policy. At the time of her termination, claimant’s work restrictions were maximum 5 lbs lift with left arm, 10 lbs with right arm and total push/pull max of 20 lbs.

Claimant underwent wrist surgery on August 29, 2018 and was placed on “no work” status. Respondents appropriately initiated temporary total disability (TTD) benefits. On July 10, 2019, claimant was returned to her pre-termination work restrictions.

At hearing, claimant’s supervisor testified claimant had been given multiple “last chances” for attendance before the August 3, 2018 no call/no show leading to her termination. Claimant’s supervisor also testified employer had ample modified job duties that could have been extended to claimant had she not been terminated for cause.

The ALJ found claimant responsible for her termination due to the no call/no show violation of employer’s attendance policy. The ALJ also found that claimant was responsible for her wage loss for those periods when employer could have accommodated claimant’s work restrictions but was unable to do so due to claimant’s termination.

The ALJ’s finding claimant was responsible for her termination was not surprising. However, the ALJ’s finding that claimant was responsible for her post-termination wage loss following an increase in work restrictions was a deviation from the unfavorable ruling in Anderson v. Longmont Toyota (Colo. 2004) and subsequent cases. This line of cases held that an injured worker is entitled to reinstatement of TTD benefits if the work restrictions increased after the workers’ termination, even if the employer could have accommodated the restrictions and offered modified duty.

The order by the ALJ represents a significant ruling for employers, both in terms of immediate financial impact in claims, but also globally regarding future posture for claims where an employee is terminated for cause.

Elsa Acosta vs. Life Care Centers of America and Old Republic Insurance Company, W.C. No. 5-085-374, (August 7, 2019).

Would you like to know more? Contact Jake Johnson or Eric Pollart at jjohnson@polllartmiller.com or epollart@pollartmiller.com, or 877-259-5693.


From the December 2019 Newsletter