Misconduct is defined in Section 440.02(18) as the following:
(a) Conduct evincing such willful or wanton disregard of an employer’s
interests as is found in deliberate violation or disregard of standards
of behavior which the employer has the right to expect of the employee; or
(b) Carelessness or negligence of such a degree or recurrence as to
manifest culpability, wrongful intent, or evil design, or to show an intentional
and substantial disregard of an employer’s interests or of the employee’s
duties and obligations to the employer.
Section 440.15(e) notes that “If the employee is terminated from
post-injury employment based on the employee’s misconduct, temporary
partial disability benefits are not payable as provided for in this section.”
The difficulty in interpreting these portions of the statute is determining
whether the claimant’s misconduct reaches the level for the Court
to opine that Temporary Partial Disability benefits are not owed. In
Thorkelson v. NY Pizza, the Judge of Compensation Claims denied the claimant’s petition
for Temporary Partial Disability after she was fired for misconduct. The
claimant disagreed with the Judge’s ruling and appealed her case
to the First District Court of Appeals. The first DCA noted that a violation
of an employer’s company policy can be misconduct, but repeated
violations after multiple warning are usually required to truly entail
misconduct. However, it was also noted that an isolated incident can be
disqualifying if it is an egregious and deliberate disobedience.
When analyzing the facts surrounding the termination of an employee for
perceived misconduct, it is imperative to be objective if there is a claim
for Temporary Partial Disability and you intend on denying those benefits.
While you may believe the claimant’s conduct rises to the level
of misconduct in your eyes, a Judge may not be persuaded that is the case.
Denying Temporary Partial Disability benefits for misconduct is usually
a more aggressive defense but if there is clear evidence that the claimant
deliberately violated the employer’s orders or engaged in conduct
that goes against the policies of the employer, the misconduct defense
is certainly strengthened. If this is the avenue that you wish to take
in the defense of a claim, it is important to discuss strategy with your
defense counsel to determine the likelihood of success.