February 4, 2008 Source:
WorkInjury.com
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CA/2:
'Could' Return to Work Not Relevant If Doc Says Otherwise
This case involved an officer of the Los Angeles Police Department who was terminated from his job for abusing his temporary disability benefits by working while on TTD. The termination decision had been affirmed by the Board of Rights.
The police officer went to court arguing that he was following doctor's orders when he didn't return to his police officer job and that coaching little league during that TTD period, as long as he kept within his medical restrictions, was of no consequence.
The Second District Court of Appeal, in an unpublished decision, agreed with the police officer and ordered that he be reinstated. The Court observed that although the subrosa tapes taken of the officer coaching his son's baseball team did show him engaging in some physical activity, it never showed him violating his medical restrictions for the knee surgery from which he was recovering.
"That Sherwood testified at the Board of Rights hearing that, in retrospect, he could have returned to work in some capacity, is not relevant. At the relevant time and during the period Sherwood was off duty TTD, there is no evidence that he knew or should have known that he should have returned to work. He was relying on medical advice. That advice consistently was that he could not return to work because of his medical condition. Again, substantial evidence supports the trial court's determination."
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