MISSOURI – TERMINATION & TTD MEMO – 2016
In Missouri, since August 28, 2005, an employee terminated for cause is ineligible for temporary total disability (“TTD”) benefits. See Missouri Revised Statutes, §287.170.4. The general rule is TTD benefits are not owed when an employee is terminated from employment based on post injury misconduct. The statute makes clear post injury misconduct does not account for absence from work due to an injury unless the claimant is capable of working with restrictions that have been certified by a physician. However, the statute is less clear on what actually is misconduct. Business reformers and employers feel the statute is designed to punish an employee for post-injury misconduct that, by virtue of being post-injury, could not have been a factor in causing the injury. However, employees make a counter-argument the law runs contrary to the theme of workers’ compensation as a statutory benefit without assessment of fault.
Under §287.170, an injured employee is entitled to compensation during the continuance of TTD until MMI. However, payments are unwarranted beyond the point at which the employee is capable of returning to work. Boyles v. USA Rebar Placement, 26 S.W.3d 418, 424 (Mo.App. W.D.2000). If an injured worker is terminated, post-injury, for cause, and the employer can show it would have been able to accommodate the temporary restrictions, the worker then forfeits his/her right to any TTD benefits. The burden is on the employer to prove there was a legitimate reason to fire the employee. So what qualifies as misconduct? Few Missouri workers’ compensation cases have made it to the Court of Appeals wherein the misconduct provision would be addressed.
Missouri does not provide a bright line test to define what misconduct is, rather it only defines what is NOT misconduct. Misconduct was recently redefined in Senate Bill 510, §288.030(23), as the term relates to unemployment benefits, as conduct that “must be connected to work and include a knowing disregard of the employer’s interests, a knowing violation of a company standard; careless or negligence in such a degree to manifest culpability, wrongful intent, or knowing disregard of the employer’s interests, duties or obligations.” However, the Court declined to adopt an opinion that applied the §288 employment security definition of misconduct to construe what “misconduct” means in relation to Chapter 287 of the Workers’ Compensation Law, stating in Jones; “We do not adopt or incorporate the administrative law judge’s discussion and conclusions with regard to whether employee committed post-injury misconduct for purposes of §287.170.4. Jones v. Harris Transp., 331 S.W.3d 744 (Mo. Ct. App. 2011).
As we wait for the Missouri Courts to clarify the question of what is “misconduct,” we advise clients facing the difficult decision of whether or not to suspend TTD benefits as a result of an employee’s post injury misconduct to determine whether the employer can argue the employee was fired for cause or clearly violated a condition of their employment or light-duty work restrictions. In general, however, pursuant to Section 287.140.4, TTD liability does not continue after an employee commits post-injury misconduct in Missouri. Therefore, the employer should not continue paying TTD benefits. As always, please feel free to contact us to discuss this issue or related matters.