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Proof of lost wages: Job abandonment



Ross v Geico Indem. Co., 2019 NY Slip Op 04242 (3d Dept. 2019)

” In October 2014, defendant denied plaintiff any additional no-fault insurance lost wage benefits after receiving notification from Walmart that plaintiff was terminated from employment due to her lack of compliance with Walmart’s leave of absence guidelines. Plaintiff thereafter commenced this action against defendant claiming her continued entitlement to no-fault lost wage benefits. Following a nonjury trial, at which plaintiff was the sole witness, Supreme Court determined that defendant had properly denied plaintiff additional no-fault lost wage benefits and dismissed plaintiff’s complaint.”

There is no dispute that plaintiff sustained disabling injuries as result of the accident that prevented her, at least initially, from returning to work at Walmart. Based thereon, she obtained a leave of absence from Sedgwick, short-term disability benefits through Walmart’s disability carrier through July 7, 2014 and no-fault lost wage benefits from defendant through September 2014. Plaintiff acknowledges that Sedgwick approved her initial request for a leave of absence and that she thereafter twice communicated her status to Sedgwick by providing copies of doctor’s notes excusing her absence from work. However, the last doctor’s note that plaintiff provided prior to her termination, dated January 17, 2014, only excused her absence from work until March 1, 2014, and there is unrefuted record evidence that she had been advised of the need to provide updates regarding her status. By separation notice dated May 6, 2014, Walmart notified plaintiff that her employment was to be terminated as of May 23, 2014 based upon her “failure to return from leave [of absence].” Walmart also provided plaintiff an exit interview document, wherein it reiterated the basis for plaintiff’s termination and further indicated that plaintiff had failed to file for an extension of her leave of absence after March 26, 2014 and had not otherwise been in contact with Walmart’s personnel manager since such time.

“This is not an action for wrongful termination, and it was not defendant who terminated plaintiff’s employment. To the extent that plaintiff believes that she was wrongfully terminated, she may pursue any legal remedies that she may have against Walmart and/or Sedgwick. Defendant, however, was entitled to rely on the documentation it received from Walmart indicating that plaintiff was terminated from employment for reasons unrelated to her injuries (cf. State Farm Mut. Auto Ins. Cos. v Brooks, 78 AD2d 456, 459 [1981], appeal dismissed 54 NY2d 753 [1981]). Moreover, contrary to plaintiff’s assertion, there is nothing in the record demonstrating that her termination from employment and subsequent denial of no-fault insurance benefits was deliberately intended to circumvent defendant’s obligation to provide plaintiff with lost wage benefits. Accordingly, giving deference to Supreme Court’s factual findings, we find that defendant properly denied plaintiff continuing no-fault lost wage benefits.”

It has always been interesting because under established precedent, the injured person gets a pass if he or she gets fire while disabled. Thus, leaving a job while disabled was never an issue. Here, the Court has held that job abandonment ends the inquiry.