Employers Still Obligated to Pay Temporary Benefits after Injured Employee Quits

Accommodating light duty work restrictions often allows employers to limit the award of temporary disability benefits. It is often argued that temporary benefits are not due when an injured employee fails to avail himself of light duty work offered by the employer. But what happens if an employee voluntarily leaves the employer of injury to pursue a job with a different employer? In the recent case of Zwiener v. Becton Dickinson-East, the Nebraska Supreme Court held that an employee who is injured through the course of his employment, and then leaves to pursue another job, does not waive temporary total disability benefits simply because the employer responsible for the injury could have accommodated light duty restrictions had the employee continued working there.

In Zwiener, the employee suffered a shoulder injury in the course of his employment with Becton. Seven months after the accident, Zwiener resigned his employment with Becton to accept a new job that would allow him to work outside and receive higher wages. Shortly after staring his new job, Zwiener was told he required surgery due to the injury. While recovering from the surgery, Zwiener would be precluded from using his right arm. Zwiener’s new employer could not accommodate one handed work, so Zwiener was off work while convalescing from the surgery. Becton refused to pay temporary total disability benefits while Zwiener was off work, under the theory that Becton could have accommodated the one handed duty restriction if Zwiener had not left to pursue other employment. Zwiener later had to undergo a second surgery, and Becton again refused to pay temporary total disability benefits. Becton argued that an employee waives temporary total disability benefits when the employee leaves a job that could have accommodated medical restrictions.

The Supreme Court disagreed with Becton and held instead that “an employee who leaves a job with an employer responsible for an injury in order to pursue more desirable employment does not waive temporary total disability benefits simply because the employer responsible for the injury would have accommodated light-duty restrictions during postsurgical recovery periods necessitated by the injury.” The Supreme Court held that adopting a rule to the contrary would be both contrary to the beneficent purpose of the Nebraska Workers’ Compensation Act and public policy. If a worker could only receive temporary benefits while working for the employer of accident, the worker would effectively be bound to the employer of accident and would lose the mobility and freedom to seek other work opportunities.

What this means for employers is that they must continue to pay their injured employees temporary total disability benefits when the employees leave the company, even if the employers could have accommodated the employees’ light-duty restrictions had they stayed. For more information about employers’ obligation to pay temporary total disability benefits, contact Brenda Spilker at bspilker@baylorevnen.com or (402) 475-1075.