Safety and OSHA News

Worker is fired for swearing at his boss: Will he continue to get comp?

An employee was on light duty after suffering an injury at work. One day he called his supervisor “an insulting, derogatory and vulgar name.” He was fired. The worker filed to receive workers’ comp benefits because of his injury. How did a court rule?

Francisco Narvaiz worked for Tyson Poultry. While on a light-duty assignment after a work injury, he called his female supervisor a phrase that included an f-bomb and the b-word.

He was put on suspension, and when he returned to work he was fired for insubordination and gross misconduct. Narvaiz applied for additional temporary total disability benefits for the remainder of his disability period. The company fought the claim.

An administrative law judge (ALJ) denied Narvaiz’s claim. The Workers’ Compensation Commission reversed the ALJ’s decision, ruling the employee should get comp benefits. An appeals court restored the ALJ’s decision.

Now, the Arkansas Supreme Court has heard the case.

Arkansas’ workers’ comp law says an employee’s comp benefits can be suspended if he refuses suitable work that accommodates his injuries.

Tyson argued that by engaging in misconduct, Narvaiz refused suitable work.

However, the state’s highest court ruled the misconduct and insubordination in this case were just that — misconduct and insubordination and nothing more. After committing the misconduct, Narvaiz returned to work. It was Tyson’s option to fire him or allow him to continue with his light-duty assignment.

Therefore, the court ruled that Narvaiz should continue to receive temporary total disability benefits for the remainder of his healing period.

What do you think of the court’s decision? Let us know what you think in the comments below.

(Tyson Poultry v. Narvaiz, Supreme Court of AR, No. 11-3, 3/15/12)

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  1. That is just WRONG – I have a employee in CA who filed WC and when she was drug tested the test came back positive and she was terminated for violation of the drug policy. She has now filed for WC benefits because she was fired. After reading this it seems she may get the benefit. This just isn’t fair for employers.

  2. Sounds like a no-brainer to me…the court’s decision was correct.

  3. Safety Lady says:

    What a load of crap. What this says is that if you are on WC you can do anything you want to, break any company rules you want to and a company still is suppose to keep you on or you can sit on your lazy behind and collect money if they expect you to follow the same rules required by every other employee.

    Thank goodness I don’t work in Arkansas.

  4. I can see the court’s ruling on this case. This is an “apples and oranges” situation. Misconduct and insubordination is not refusal to perform light duty work. I do understand the employe’s position as we have been in a similar situation with an injured worker – it does come down to the issue, is one toxic fruit worth poisoning the whole tree, but as an employer you have to be prepared for the consequences (continued benefits) should you decide to cut the toxin from your company.

  5. M. D. Hilton says:

    This is another example of government rules out of control. There must be standards in which both the employer and employee are required to adhere. Someone has to be in charge, and when respect is lost in the work force, the business begins to loose its efficiency and productivity. I am aware of some slur words that if used by management would result in an EEOC complaint, a large fine, and or potential loss of employment of the manager. What is needed is respect by all parties. There is not any room for use of the words mentioned in the article by either management or the employee. Grey Rebel

  6. Connie – what are you thinking, this guy gets terminated for insubordination and you think he should get WC benefits? I am so glad you don’t work for me.

  7. Workers Comp is compensation for an injury, not pay for good behavior. If the injury is justified, that’s all that counts. If the employee were promoted for good behavior instead of fired, would his WC benefits go up?

  8. I agree with Michelle here…apples and oranges. The employee may have won this battle concerning temporary disability and light duty assignments but in the long run misconduct will get the best of any worker down the road. Tyson Poultry is not a company that forgets; disregards of, no respect for authority is not a good thing at work and it can easily escalate to workplace violence.

  9. He should not be able to receive disability. His bad and wrong conduct has been rewarded. what a travisty.

  10. This really is a no brainer; the WC should be disallowed. Disabled workers should be held to the same standards as other workers. Being terminated for gross misconduct would not allow him to collect unemployment benefits without penalty why should he be able to sit around collecting WC benefits. Entitlement to medical care is appropriate; not entitlement to a free ride. This sounds like something California would be gung ho for (sorry Californians). Most of us do not live in LaLaLand nor do we expect entitlements like teachers. Grow up people, haven’t you heard the term “earn a living”.

  11. Safety Always says:

    I do not agree with the court. There are so many people I know who always manage to ‘work the system’ and the rules of government allow it through loop holes and interpretations. Being insubordinate, to me, is the same as not wanting to do your job. This kind of ruling would enable other workers to do all sorts of things that they wouldn’t and shouldn’t do otherwise. Would taking a hour lunch break when you are only supposed to take a half hour also be considered ‘not refusing to do light duty?’ There are just so many things that this could give the ‘system’ workers more to argue about.

  12. To Jan: TedBean hit the nail on the head–he was injured on the job, he should be compensated regardless of his behavior! Plus, we’re only hearing one side of this story. There’s no excuse for his behavior, but just wondering what set him off. (This is not a case of positive drug testing, btw, just a filthy mouth!) Does he have a bad temper that he doesn’t know how to control? Did his supervisor provoke him? Who the heck knows! Too few details and it’s all one-sided. ps So glad I don’t work for you, either! 🙂

  13. In Arizona, if an employee is terminated while on light duty, they get benefits. Regardless of the cause of termination. If the employee quits while on light duty, they get contiued medical but no additional benefits. Yes, all employees should be held to the same standards and he was fired because he did not comply with those standards. What he did was wrong, yes. I am not saying otherwise. But unfortunately, in this case, one has nothing to do with the other. However, once he is off light duty and able to return to work, his additional benefits should stop. Add a NCM to the file and see how fast he is off light duty.

  14. Connie – they didn’t put him off work, he was terminated for breaking the rules. He should not be allowed to collect WC. Let’s just reward the employee for his behavior. Wonderful

  15. Safety Lady says:

    If you terminate an employee for not following the rules and you have appropriate documentation, ie write-ups, you don’t pay them unemployement. How can you really think that just because someone is injured on the job and on light duty that the same policies should not apply? Absolutely you will have to continue to pay for the medical treatment but no company should have to pay for an employee regardless of there full or light duty status that can’t follow established company policy’s.

    Those of you who say that this is a seperate issue need to think about what the courts are saying by upholding payment for the light duty. Basically, don’t worry if you don’t like the rules just say your injured then you can sit at home and collect a check. Isn’t that a great joke on the company.

    Like I stated earlier this is a bunch of crap.

  16. The orignianal premis applies in WC — you take them like you find them. Narvaiz demonstrated behavior that he may be a disrespectful, inconsiderate slob. Sometimes poor supervision can bring out the worst of anyone. Nonetheless, employers may be forced to deal with these kind of situations as dictated by company policy or union rights or a combination of both. We don’t know the exact reasons why he was allowed to go back to work, but clearly we can see that the process of discipline was in affect which led to termination.
    Yes, it is sometime cheaper to pay the comp then the wrongful dismissal law suit. If it were one of my employees, (I have to bow to the management) and the employee got fired and then wound up getting his/her comp, I would be holding the camera myself, assigning a nurse case manager, and making sure the employee’s claim is finalize asap! Sometimes you just have to weigh the options and take a look at the whole picture. Kudos for Tyson going all the way to fight the courts! Because the rest of the Tyson employees know that Tyson will exercise all rights is enough of a message not to take the same chance Narvaiz did. Keep up the good work Tyson.

  17. I agree with Connie. We are hearing just one side of the story. There’s no way to know what proved his language. Agreed it was insubordinate but for all we know he could have been provoked or could have been a target of this supervisor for some time. Can’t rule on something without the whole story. I have to assume the court had more of the story than we are hearing and that they did the right thing. And correct, insubordination is not refusal to work.

  18. Jan, he was injured and already collecting WC before he got fired. They just can’t go back and take it away because he swore at his supervisor for something she did or said to him. WC benefits will run out soon (because he was already doing light duty) because he is already on his way to recovery. Then he will be feeling the wrath of his own actions. Sharon M had a good point, assign him a company nurse case manager.

  19. I agree that the court got it right this time.

    If he mouthed off and was fired for it, he should be denied unemployment. That should be his just rewards for being insubordinate. But WC benefits should stand with a legitimate injury.

  20. It may be apples and oranges, but the company should have the right to suspend the employee without pay for insubordination, which this is clearly an example of. The light duty work was made available to him, and I don’t know if that carries the same pay scale as the original job, but if the company has a policy that includes “penalties up to and including termination”, then they should be able to suspend him without pay.

    Maybe that will clean up his attitude.

  21. Willie/Megan – he was not collecting WC benefit when he was fired. You can not work and collect WC at the same time. I am not talking about medical expenses; I am talking about TTD. He was released to light duty and was working; it was not the companies fault he violated rules and was fired. That should not give him the right to collect TTD; it was his choice to be fired. Everyone knows you can not swear at your supervisor, it is grounds for termination with any company.

  22. He was put on suspension for his language and fired when he returned to work. Why suspend someone to just fire him upon return. He was not granted light duty pay he was granted compensation for his work related injury. Would any of you hire someone that is injured and cant perform the full job? Would you hire someone while recovering from an injury? I think the courts did the correct thing and he should receive WC.

  23. A lot of the responders here are opening themselves up to OSHA fines. If an employer can get out of WC by firing an employee, then he has an incentive to trump up charges against all injured employees. Watch out, folks.

  24. Jan, The 4th statement in the article states “the worker filed to receive workers comp benefits”. It also states that he filed for “additional’ temporary total disability benefits for the remainder of his disability period. The way the article is worded may be stating that both benefits are the same. The article states the two benefits as the same thru-out the rest of the article. It also states that the “Workers Compensation Commission” is the one that reversed the decision to approve. If it wasn’t the same claim how could they be involved? Regardless if they are the same or not he was already getting the benefits before he was fired. Just to let you know, you can return to work on light duty part time. Your benefits should still pay the difference. They should have never fired him. The suspension and a warning is a harsh enough punishment for saying a few choice words. You know the ole saying “Sticks and stones may break my bones but “names” will never hurt me”.

  25. Is it just me, or are any of you also wondering how it could be possible that this person who clearly had the capability of light duty activities- gets temp TOTAL disability? Why not at least temp PARTIAL disability??? They have working capacity- just because they are now out of work because they got fired legitimately- does not mean they can’t work (or is their potty mouth also a disabilty these days??)

  26. I totally agree with CB

  27. Carlos C. says:

    We first need to determine if Francisco was working a light duty assignment due to an injury on the job (compensable) OR due to an injury suffered outside the job (not compensable). Then we need to determine if what Francisco told his supervisor can be considered a “verbal assault”, which would fall under the company’s (zero tolerance) workplace violence prevention policy.
    If in fact Francisco’s injury is job related, then he is entitled to compensation until he is healed of his injury. Once he is back on full duty (if he is a full time employee) he can be given corrective action for his “verbal assault” on his supervisor according to the company’s policy on conduct and /or workplace violence prevention.
    If in fact Francisco’s injury is NOT job related (injured playing softball on the weekend), and the company chose to accomodate the employee by providing light duty, then the company (not the employee) has the right to deny him work and terminate him for his inappropriate actions.

  28. Carlos C. The first sentence of the article states ” An employee was on light duty after suffering an injury at work”. How much more to the point can this be. Why are you asking if he was injured at work or not?

  29. Doc Bruce says:

    Workers’ Comp and Disability are “Exclusive Remedy” that protects the company and is law. Insubordination is a management problem and never the twain shall meet. Discharge due to insubordination has no affect on the law. Apples and oranges.

  30. He should be let go, he probably wanted to be fired so he could just sit on his rear and do nothing and still get paid !!!!! NO WORK COMP !!!

  31. Keesha Reco says:

    Employees have a responsibility to comport themselves with respect and dignity. An employee who chooses to use vulgarity/crudeness in the work setting, which is inappropriate, is just pushing to see how far they can get. It is unfortunate that some governmental entities do not address this behavior as it should be, rather, would allow them to get away with this ‘because they are on light duty’.

  32. My Two Cents says:

    I think CF has the right idea. The fact that he/she should receive medical compensation is not in question, however the employee is still partially disabled and unable to perform the job they were hired for i.e. modified duty. While I disagree with the whole idea of sitting on their back side on the company dime, they are still medically disabled and recovering from an injury, thus limiting the chances of being employed elsewhere. Who would hire someone under those conditions?
    That being said, I think the company did the right thing. You can not allow the message getting out that the policies and procedures set down by the company are not enforced under this or that set of circumstances. I would absolutely have a case nurse assigned to the employee to insure the claim is expidited quickly and fairly to both the company and employee, something I have done in the past with excellent results.

  33. sheralroh says:

    When will some people learn that bad behavior is not acceptable. Society has put up with this behavior for way too long and it has to be stopped. This was a no brainer.. You yell obscenties at your boss, you get fired. That was simple. Pay him WC benefits until he gets a full release. Then BAM.. no more dealings with “The Jerk”.

  34. Although there’s no excuse for calling your supervisor nasty names, you can’t help but wonder what she must have said to him to make him go off on her like that!

  35. Aida, Maybe they were having an affair at work and she dumped him for somebody else at work. Who knows but I think a warning should have been the first step.

  36. Anyone who thinks an employee has the right to cuss his boss and still receive benefits from that employer has never owned a business, and is one of those “entitled Americans” that thinks they should get everything for “free”. Most small business owners stay up late, stress over payroll, and work like dogs to keep things going. Even so, most small business fail. And it is because the system is against them. Workers comp is a big part of that. Bring back the common sense.

  37. Forgive me….I missed something. I thought that Workman’s Compensation was designed to supplement an injured employee’s pay while he/she recuperates. Therefore, when the employee is TERMINATED for cause, there is no longer an income to supplement. Done deal. I disagree with the court’s decision.

  38. I agree with the court some what, however, Arkansas needs a statue that addresses “gross misconduct.” The comparison about light-duty may not be the same so the court decided accordingly. However, if this was tied to actual work then I believe the court would have denied benefits. Gross Misconduct is used in NV and we argue it.

    With this said, I still would fire the employee on own company policies. If he is getting paid with WC then be it….after while those benefits stop depending on the medical outcome of his condition anyway, or a settlement. But, I would not have him working for my company.

  39. Doc Bruce says:

    @KWR, Workers’ Compensation is “Exclusive Remedy” for an injury and controlled by the State, it has nothing to do with employment. If a worker has told his supervisor he was hurt and there is record of it, he could be fired or laid-off the next day and could still file a claim for Workers’ Compensation. The law has nothing to do with employment, just was the employee in the course of employment at the time of the injury, and if so the company has a legal responsibility for treatment. And in many cases, even treatment up to including rehabilitation to a level of employment or compensation realized when the injury occurred. And if the injury is deemed the reason for the employee to be terminated it can ends up in court for wrongful termination.

  40. Hey Doc Bruce, They are not going to listen/or read into what you are stating. Most of these people posting comments only read what they want to read whether it’s the article or the responses. That’s why I quit responding to this one. You have it right. I have it right. I just wish that more people would research the facts (in this case WC law) or at least read the article correctly. I need not name anyone. You know who you are. If not just read all the responses again.

  41. Safety Lady says:

    “Exclusive Remedy” really what this means is that they can do what they want, say what they want, break down the moralle of other employees by their conduct and if the employer has the good sense to get rid of their worthless behinds they get exactlly what they wanted to begin with. A PAYCHECK FOR SITTING ON THEIR LAZY BUTTS WATCHING TV, DRINKING OR WHATEVER, SLEEPING IN AND GOING TO THE DOC AND SAYING BUT DOC I HURT SO BAD I JUST CAN’T GO BACK TO WORK NOW AND PROBABLY NEVER. What a bunch of horse manure.

  42. The validation that the terminated employee should receive full monetary comp in addition to medical benefits because “Would any of you hire someone that is injured and cant perform the full job? Would you hire someone while recovering from an injury?” is, I think, topsy-turvy. It should come to the employee’s mind before performing actions that could cost him/her their job and income rather than an employer having to put up with a confrontational employee with despicable manners. It really does give an employee free reign to do whatever they want without fear of losing their income (in complete opposition to uninjured workers). But that is the world we live in.

    I do however agree that medical benefits should NOT be suspended.

  43. Captain Safety says:

    Connie is right. The court’s decision was that he should receive benefits until he is done healing, not for lost wages due to being fired. He didn’t quit, his injury was work related. That’s pretty much it.

  44. Doc Bruce says:

    @Safety Lady. Exclusive Remedy has nothing to do with employment, only Workers’ Compensation, which means the person can still be fired. And he is subject to Benefits Review Boards, sometimes court, etc. so there is a check and balance system, and it is not technically a paycheck.

    That is not to say a company will not use the system and might let the situation you describe play out. If so, then the company is just a much at fault as the lazy butt who is milking the system. And benefits do stop, they are only good for a certain period, depebding on the state.

    We used to use PIs in these cases and the results were something of truth that you could not write into fiction any better. One of our employees was granted on-site parking, limited hours, compensation, etc. from a claimed neck injury. He wore his cervical collar every day, but not when our PI caught him taking it off to play a round of golf! His benefits terminated and the court required him to pay back monies.

  45. The courts decision was that he should receive benefits until done healing or until he refused a job offer, indicating somewhat that the point was to work as much as physically possible. A loophole where somebody is completely relieved of responsibility and penalty in that they can cuss out their boss and get fired, and maintain being paid as if they didn’t is….sad.

  46. Safety Lady says:

    Doc Bruce and Willy, this forum is designed to allow safety persons and others to give their opinions. That is what most of us are doing. I know the comp rules. So yes Doc I really know what “Exclusive Remedy” pertains to. However, just because you know the rules does not mean that you have to agree with them. That is one of the great things about being an American. You can disagree with anything you want to, you can spout off about anything you think is unfair and unless you are break the law or don’t follow the rules you can voice any opinion you want.

    Willy, we are not idiots and my guess is that we, the people that don’t have it right, have as much experience and knowledge of the WC rules as you do. So really, please don’t think you are so superior to the rest of us who want to voice our opinions about a system that is not always fair and sometimes is just down right unfair to employers.

  47. Safety Lady, I don’t think that I am superior than anyone else as you worded it. And I never mentioned that everyone responding couldn’t voice their opinion. I never called anyone an idiot either. And yes this is America and I’m just voicing my opinion. You shouldn’t have taken my post so personal and I apologize to you that you have.

    In my opinion it would just have been nice if that some would read the article completely, instead of asking questions in their responses that the article itself has already answered.

  48. Safety Woman says:

    First of all nobody has the right to call another employee out of their given name. But the way this story was reported their is noway anyone can make a valid opinion on the outcome. First consider he was hurt at work. He has the right to be compensated for the injury that happened due to the neglect of the employer of the work environment. Second, the article does not state why he used that language. Could it be because he was still in so much pain that it could not be helped? Maybe he had just got done with PT and was irritable. Maybe they were dating as someone said earlier and it was a bad breakup. There are several reasons, no of them right or acceptable, for his behavior. Third have any of you looked up Tyson for fines, violations etc??? If the company was smart they would let him finish out is light duty to see if the pain of his injuries were what cause the outburst. Was there a history previous to the injury? People talk about common sense??? Hummm. I wonder sometimes. Lastly WC only pays a percentage of his wage. He does not get a paycheck for just sitting on his tail. I have a permanent partial disability award from a company, who fired me 1 week after I requested FMLA due to the injuury, but I still work. It is true that some people just want to live off the system, that goes back to how they were raised. Unfortunately, as business owners, we have to be on the look out for these types of people. There are legal ways to deal with them before it gets to this point. Documentation! I do feel in this case the court was justified in it’s decision. What this article does not state is that Tyson has a long running history of willfull and severe violations and for unreasonably releasing employees. I have never been an employee of Tyson but I have been an owner and a safety manager and have several degrees in OH&S. I have studied with local BWC. You want an opinion, you’ve got one.
    On a different note this is a forum to state one’s opinion’s that it true and…

  49. I find it interesting that it seems people have the view that the injured worker is lazy, sitting on their butt at home, toxic to their work environment, and whatever else.

    These injured workers were “working at the time of injury!” They were trying to provide for their families. They were productive members in society. They chose to go to work with the rest of us, and actively sought out employment. They didn’t sign up for medicaid. They went to work! That’s how they got hurt, while working!

    People tend to focus on those rare cases of questionable activities while injured. You never hear of the thousands of legitimate workers whose lives have been forever altered by an injury. You obviously don’t know what the injured worker endures. It isn’t a picnic ride. Those that think that, show they are unfamiliar with the system.

    If you want to have good outcomes. We need to start caring about our employees. We need to see that they have prompt access to good medical care, and we work with them to aid them in a full recovery. A good leader will have valued employees and they will know they are valued.

    Put yourselves in their shoes. Imagine you are injured in the course of your day, and then you have no way to provide for your family, over night. No way to pay the bills, and now you will have large medical bills to boot, kids to put through colleges and universities, taxes, mortgages – and you are unable to provide. Through no fault of your own.

    This story is very one sided. This worker probably tried to come back to work and found a very hostile environment. That’s the reality for these people. Be a decent boss, an honest leader, and you won’t have these kinds of issues. Do the right thing for your injured workers. It could be you someday.

  50. The court is clearly wrong, as are the people that say otherwise…….having an established modified duty return to work program in effect is a financial benefit to both the employee and employer. If the employee is terminated with cause (and the employer standards are consistent for all employees), or the employee limits his/her modified duty earnings by declining available work, they should not be compensated. This ruling basically stands to sabatoge the whole purpose of providing a modified duty program sending a message to the employee (& claimant attorneys) that the employee does not need to cooperate……they run the show! In my experience AR was always a very reasonable state, I am surprised and disappointed with the decision.

  51. Billy Bob says:

    I was not privy to all the facts of this case and speaking based on the limited amount of information I found online. However, I agree with the court’s decision, although it seems “wrong” in principle. The issue of receiving indemnity payments during the period of healing is separate from that of insubordination. While the employee unequivocally SHOULD HAVE BEEN fired by the employer as a result of inexcusable behavior, the injury occurred while working and the period of time it takes to get back to 100% should be covered. Firing an injured employee (whether justified or not) doesn’t reduce their right to compensation. That’s what the law says. A basic right to a safe work environment tends to get lost because to paraphrase an earlier comment, a few bad apples spoil the bunch! It seems unfortunate for the employer to have to pay, but the worker was injured while at work. Silver lining? Once Narvaiz is beyond the reasonable amount of time for disability, he’ll be without a job and Tyson will only have 106,999 other employees to worry about.

  52. Bernie57 says:

    If you do not want to send the message that injured workers recieve special treatment, don’t end up sending the message that an injured worker will get less than fair treatment. A suspension with termination seems a bit strong. If you are suspended, let that be the punishment, If you are fired, let that be the punishment. The basic question is What if a non-injured employee swore at a supervisor would it be a verbal warning, a written warning or suspension with termination. Neither should it matter how the injury happened. Was he not paying attention and fell or perhaps an accident because the company over-looked a safety issue. To be fair leave out the word, ‘injured’ then treat everyone on an even playing field. This is what the other employees are watching for.

  53. If you willfully take a crap in your bed, you should have to sleep in the bed you made. He obviously did not want to work there and hated his job. I would say this should have been ruled a voluntary quit!

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