I’ve seen a very disturbing trend recently wherein unscrupulous employers and carriers take advantage of a recent change in the law to refuse temporary compensation to an injured worker. The employer will offer “light duty” work to the injured worker, who accepts the accommodated employment. The employer will then concoct a reason to fire the injured worker “for cause”, and then the carrier will refuse to pay temporary partial compensation because they argue that the injured worker would have had work “but for” their own fault and for a reason unrelated to their work injury.
The portion of the statute that is abused is 23-1044 which states that “If the employee is unable to return to work or continue working in any employment after the injury due to the employee’s termination from employment for reasons that are unrelated to the industrial injury, the commission may consider the wages that the employee could have earned from that employment as representative of the employee’s earning capacity.”
I almost always fight these cases tooth and nail as the reason the injured worker was fired is usually just a pretext to get the carrier out of liability for compensation. The ALJ at the Industrial Commission can make a determination if the reason for the firing is legitimate or not. The other reason I think this new tactic of carriers and employers is unconstitutional is that it injects an element of fault into what is supposed to be a no fault system. I intend to take the first case I lose on this issue to the Court of Appeals or the Arizona Supreme Court to stop this insidious practice once and for all.
Snow, Carpio, and Weekley are attorneys who practice exclusively in the area of workers (workmans) compensation in Phoenix and Tucson, Arizona. They can be reached at (602) 532-0700 or (520) 647-9000 or on their website.
