 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wagoner v. Piedmont/Hawthorne Holdings6/7/2005
le injuries are terminated from rehabilitative employment due to misconduct, the termination does not automatically bar them from receiving benefits as if they had constructively refused to accept employment. Instead, "the test is whether the employee's loss of . . . wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether" the loss is attributable to the "work-related disability, in which case the employee will be entitled to benefits for such disability." Id. at 234, 472 S.E.2d at 401. " o bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee's compensable injury." McRae,358 N.C. at 493, 597 S.E.2d at 699.
In the present case, the Commission found: 1) plaintiff was terminated for his chronic absenteeism, 2) defendant's attendance policy applied to all employees and would have resulted in their termination as well, and 3) the absenteeism was not related to the back injury . The evidence in the record indicates that even if one of plaintiff's sick days (January 18) and one of his FDO's (November 28) were attributed to his back injury, he also took twelve vacation days, rather than the ten allowed by the policy. Furthermore, the number of days he was absent without providing his employer with any kind of excuse also violated company policy. The Commission also found that "defendant-employer developed anduniformly applied its attendance policy to all its employees." There was also evidence that Wagoner's healing period had ended; unlike the plaintiff in McRae, he was not in a light duty or rehabilitative position where he was terminated for lack of productivity. See McRae, 358 N.C. at 497, 597 S.E.2d at 701 (plaintiff terminated from light-duty position because of failure to label the required amount of boxes).
Since competent evidence in the record supports the Commission's findings which, in turn, support the Commission's legal conclusion that plaintiff's termination was due to chronic absenteeism, amounting to a constructive refusal to accept suitable employment, we affirm the Commission's decision denying Wagoner's claim for additional temporary total disability benefits.
Affirmed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
|