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Temporary Partial Disability Benefits: Pre and Post Industrial Accident Wage Loss Considerations

Florida
September 12, 2019
August 15, 2019
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On July 29, 2019, the Florida First District Court of Appeals addressed two workers’ compensation cases involving temporary disability benefits—one involving pre-industrial accident wage losses due to a change in jobs and another involving post-industrial accident wages and the voluntary limitation of income defense.

In Publix Risk Management/Publix Super Markets, Inc. v. Carter, Case No. 1DI8-4210 (Fla. 1st DCA 2019,) the employer/carrier appealed an order whereby the judge of compensation claims (JCC) awarded temporary partial disability benefits to Ms. Carter.  The JCC had determined that Ms. Carter “established a causal connection between the injury and her wage loss based upon the light-duty work restrictions ordered by doctors following her injuries.”

Approximately one month prior to the industrial accident, Ms. Carter changed jobs with Publix whereby she accepted a demotion from Assistant Deli Manager ($17.75/hour) to Deli Clerk ($15.20/hour) so that she could work closer to home.  

Six months post-industrial accident, Ms. Carter filed a petition for benefits seeking temporary partial disability benefits from the industrial accident, attorney’s fees, and costs.  The JCC awarded same.

The employer/carrier appealed and argued that Ms. Carter was “not entitled to temporary partial disability benefits because her workplace injuries caused no loss of wages.  Claimant was able to work the same hours and earn the same wages in her deli-clerk job after the accident as she had been earning in the same job at the time of her injury.”  

The Florida First District Court of Appeals reiterated that “To be eligible to receive temporary partial disability benefits, an employee must show a causal connection between a workplace injury and a resulting inability to earn pre-injury wages.  The test used to determine whether an injured workers’ disability has contributed to a loss of wages is generally ‘whether a claimant’s capabilities allow her to return to and adequately perform her prior job with the employer, and whether the workplace injury caused a change in employment status, resulting in a reduction of her wages below 80% of her pre-injury average weekly wage.’” See Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998) superseded on other grounds by statute; Betancourt v. Sears Roebuck & Co., 693 So.2d 680 (Fla. 1st DCA 1997); Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795, 799 (Fla. 1st DCA 2010).

The Florida First District Court of Appeals found that the work restrictions from Ms. Carter’s injury, just as was the case in Ahles, did not reduce her earning capacity.  “Claimant was able to return to her same job full-time (albeit with restrictions) after the accident.  Even though claimant could calculate a post-injury reduction in income below the statutory level as a mathematical matter, the reason for the reduction did not stem from her disability.  Rather, the reduction results from claimant’s decision to leave her higher-paying job for a lower-paying job just a few weeks before the accident occurred.”

Based on same, the Florida First District Court of Appeals determined that the claimant “did not make the required showing of a causal connection between her injury and lost wages.”  Therefore, the Florida First District Court of Appeals reversed and remanded the JCC’s order as the claimant was not entitled to temporary partial disability benefits because the industrial accident did not cause a reduction in her earning capacity.  

In MJM Electric, Inc./OCIP/Sedgwick CMS v. Spencer, Case No. 1DI8-4064 (Fla. 1st DCA 2019,) the employer/carrier appealed an order whereby the JCC awarded temporary partial disability benefits and medical care.  The Florida First District Court of Appeals affirmed, without discussion, six of the seven appealed issues and reversed and remanded the JCC’s rejection of the employer’s/carrier’s voluntarily limitation of income defense, as Mr. Spencer refused suitable employment after the employer terminated his employment.

The employer/carrier argued on appeal that although the claimant met his prima facie burden of proving entitlement to temporary partial disability benefits for his August 1, 2017 industrial accident, the JCC erred as a matter of law in rejecting the employer’s/carrier’s voluntary limitation of income defense after Mr. Spencer’s termination date of August 16, 2017.

In accordance with Florida Statute Section 440.15(6) (refusal of suitable employment,) the employer/carrier has the burden of proving the voluntary limitation of income affirmative defense. See Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009).  It was the employer’s/carrier’s position that as a matter of law, the JCC erred “because she assumed the employer/carrier were obliged to make repeated offers of suitable employment.”  In Moore, the Florida First District Court of Appeals held that “an employer is not required to ‘continually reoffer a job to avail itself of [this] statutory defense.’  But at the same time, the court emphasized the employer must, nevertheless, ‘establish the continued availability of the job for each applicable period to obtain the continued benefits of the defense.’” Id.  

The Florida First District Court of Appeals cited to Moore whereby it determined that “the fact that suitable employment is terminated is not determinative of the defense.  Instead, when injured employee’s employment is terminated, a three-part inquiry applies: (1) did the employer establish the continued availability of suitable employment after termination; (2) did the injured employee continue to refuse suitable employment after termination; and (3) was the refusal justified?”  

In Spencer, “although it seems telling that the JCC found that the employer/carrier did not show that light duty work ‘even existed’ after August 16th, she also acknowledged [the employer’s] testimony that suitable employment would have continued if claimant had returned to work.  Her finding that the employer was not likely to offer light duty work after Spencer’s release to full duty on August 21st seems speculative based on this record and, even if supported by evidence, would not explain an award beginning August 17th.  The same may be said about her finding that Spencer was given work restrictions after January 12, 2018.  But at the end of the day, it is simply not certain whether the JCC based her ruling on more than the lack of continuous offers of employment after the date of termination.”  

The Florida First District Court of Appeals reversed the JCC’s rejection of the employer’s/carrier’s refusal of suitable employment defense under Florida Statute Section 440.15(6) “because the JCC’s analysis and application of the law is not clearly in accord with the statute and the relevant case law.”  The JCC was instructed to apply the three-part prong from Moore and reconsider “with findings addressing: (1) the continued availability of suitable employment; (2) Spencer’s continued refusal of such suitable employment; and (3) any justification for a continued refusal.”

In light of Carter, when determining whether a claimant is entitled to temporary partial disability benefits, there is a required showing of a causal connection between her injury and lost wages.  Was the injured worker able to work the same hours and earn the same wages in her job after the accident as she had been earning in the same job at the time of her injury?  If the industrial accident did not cause the reduction in the injured worker’s earning capacity, then temporary partial disability benefits are not due and owing.

Based upon Spencer, if you intend to pursue a voluntarily limitation of income affirmative defense, remember the three-part inquiry from Moore that will be applied: (1) the continued availability of suitable employment; (2) the injured workers’ continued refusal of such suitable employment; and (3) any justification for a continued refusal.