A recent South Carolina Supreme Court decision is a significant win for employers. The court held in Pollack v. Southern Wine that employers cannot be held to pay temporary total disability (TTD) benefits to employees terminated for cause for reasons completely unrelated to their injury.

The decision clarifies Cranford v. Hutchinson Construction, 399 S.C. 65, 731 S.E.2d 303 (S.C. Ct. App. 2012), which held a terminated employee was entitled to temporary disability benefits until he achieved maximum medical improvement and was authorized to return to work without restriction. Notably, the court in Cranford failed to distinguish between employees terminated with cause and those terminated without cause. The court in Pollack makes this distinction.

In Pollack, the employee, a drivers’ supervisor, suffered an admitted injury to his back while picking up a case of alcohol. After treatment by a physician, Pollack returned to work on light duty in the same position with the same salary as before. Several months later, while responding to an automobile accident involving a company vehicle, Pollack accidentally ran his company vehicle into the vehicle of a subordinate.

Importantly, company policy demanded that “[a]ll accidents and incidents with a vehicle must be reported,” and that “[f]ailure to report an accident will result in immediate termination.” (Emphasis added).

However, Pollack concluded that the accident caused no actual damage to either vehicle and was not worthy of reporting to the company. The company immediately suspended Pollack for failure to report the accident and began an investigation. Pollack was briefly reinstated by his local superiors, but the corporate office ultimately terminated him for failure to report the accident.

Pollack filed for TTD compensation from the date of his termination. Benefits were denied by the single commissioner, and the ruling was affirmed by an appellant panel and the Supreme Court. The court reasoned since the company terminated Pollack for cause, and the cause was totally unrelated to the injury, the employer should not be held liable for paying TTD benefits.

The court discussed several interesting facts in reaching its conclusion. First, the cause for the termination was a violation of a stated company policy. Second, Pollack admittedly knew of the policy, and he chose to disregard it anyway. Third, there was testimony that other employees had previously been terminated for this same violation. Lastly, Pollack’s supervisor testified that but for his violation of company policy, Pollack would still be working in the light-duty capacity provided by the employer.

While this decision should be seen as a victory for employers, the court noted the “critically important task” of “thoughtfully consider[ing] the evidence, remaining sensitive to an employer’s possible motivation to ‘look for’ a reason to fire an injured worker.” This strong language should be taken seriously by South Carolina employers. An employer’s decision to deny benefits will still be “scrutinized carefully” by the fact-finder on a case-by-case basis.

In evaluating their options, employers should consider the specific circumstances and ask themselves operative questions based on the court’s opinion in Pollack. Has there been a violation of a clear company policy? Did the employee know of the policy and violate it anyway? Have other employees been terminated for similar violations? But for the violation, would the employee still be employed? If the answer to these questions is “yes,” then an employer will likely avoid the perception of targeting injured workers. However, if some of these questions result in “no” or “maybe,” the employer should proceed with caution.

Michael E. Chase is manager of the workers' compensation practice for the Turner Padget law firm in Columbia. This column was reprinted with his permission from the quarter newsletter of the South Carolina Self-Insurers Association.