Kevin Kampschror, Esq.
This is one of the most common questions I get when people come to retain
my services. As with many other areas in law, it depends. There are a
couple of procedural things to keep in mind. First, if you have been released
to a full duty work status, your employer can terminate you at will, with
no consequences. However, any remaining workers’ compensation benefits
such as medical care, medical procedures, or even the PPD rating (if applicable)
will be unchanged by your termination. On these facts, there would be
essentially no impact to your case. Second, if you are still on light
duty or are even collecting TTD because your employer cannot accommodate
your restrictions, then things change considerably.
NRS 616C.232 states in relevant part that if the injured employee was discharged
from his or her employment solely for the employee’s misconduct
and not for any reason relating to the employee’s claim for compensation;
and it is the injured employee’s discharge from his or her employment
for misconduct, and not the injury, that is the sole cause for the injured
employee’s inability to return to work with the pre-injury employer.
See also Hudson v. Horseshoe Club Operating Co., 112 Nev. 446, 916 P.2d 786 (1996). Furthermore, discharge from employment
for reasons other than gross misconduct does not limit an injured employee’s
entitlement to receive benefits for temporary total disability.
Id.; NRS 616C.232.
Therefore, what the above law states is that the only way your employer
will be able to terminate you while you are still collecting TTD –
without being then legally obligated to continue to pay you – is
if you are terminated for “gross misconduct.” If your employer
does terminate you while collecting TTD, they will have to continue to
pay you the TTD until you are released back to full duty, regardless if
you are still an employee or not.
There is no specific definition of what constitutes “gross misconduct.”
As you may suspect, employers attempt to allege almost everything is gross
misconduct. However, unlike almost all other legal issues in workers’
compensation, NRS 616C.232 shifts the burden to the employer to prove
by a preponderance of the evidence that the employee was indeed terminated
for something that is “gross misconduct.” Employers can often
find themselves unable to meet their legal burden as just declaring that
an employee was terminated for gross misconduct is typically not enough.
This is a complex area of workers’ compensation law. Termination
during your workers’ compensation case can be very tricky, depending
upon the timing and the specific facts. As always, it is advised you seek
an experienced attorney who is able to assist in obtaining all benefits
that you are entitled to under Nevada law.