Employers should be cautious when terminating an employee on light duty restrictions as the result of a work accident. Pursuant to Section 42-9-260, when an employee is out of work due to a reported work-related injury or occupational disease, the employee is entitled to temporary benefits. Disability, and thus entitlement to disability benefits, is the “incapacity because of an injury to earn wages…” pursuant to Regulation 67-502(B)(1). When an employee is written completely out of work by the authorized treating physician as a result of the work accident, the employee is entitled to temporary total disability benefits (TTD) for the entire time he or she is written out of work. But, when the employee is on light duty restrictions, the issue of whether the employee is entitled to TTD benefits is more difficult to resolve. 
The state Supreme Court clarified an employee’s incapacity to earn wages must be the result of the injury for the employee to be entitled to temporary benefits in Pollack v. Southern Wine & Spirits of America, July 17, 2013, Opinion No. 27285. In Pollack, while the employee was on light duty work restrictions accommodated by his employer, the employee was terminated for reasons unrelated to the work accident. The court held the employee was not out of work due to or because of his injury, but rather for violation of company policies that led to his termination for cause. The court noted “to accept [the employee’s argument,] no employer may ever terminate an injured, accommodated employee without incurring responsibility for TTD benefits would be contrary to [the Act… and] would essentially insulate an injured employee who engaged in misconduct while employed in rehabilitative settings and essentially tie the hands of an employer who has sought to accommodate the employee to the best of its ability. Such an unwarranted construction of the statutory and regulatory language would have the additional and undesirable effect of discouraging employers from endeavoring to accommodate injured workers with light duty work.” However, the court noted an employer’s denial of temporary benefits must be scrutinized carefully and remain sensitive to an employer’s possible motivation to “look for” a reason to fire an injured worker.
However, in Davis v. UniHealth Post Acute Care, 402 S.C. 451, 453 (Ct. App. 2012), the Court of Appeals held the employee was entitled to temporary benefits despite her termination for sleeping on the job. The court reasoned the employee did not constructively refuse employment by oversleeping, especially because the employee’s causally-related prescriptions made her sleepy, thus, the employer was not entitled to terminate the employee.
In conclusion, employers need to be diligent and cautious before terminating an employee as that can open up to a workers’ compensation liability. While the Pollack case allows an employer to terminate an employee for causes unrelated to the work accident, the courts will scrutinize the employer’s reasoning behind the termination (or lack of offer of employment) and may order the employer to pay temporary benefits if the court believes the employer was motivated by the work accident to terminate the employee.
