Defense counsel routinely uses a number of defenses in order to deny paying temporary benefits to injured workers. These defenses assume your client has already met the threshold requirements for either Temporary Partial Disability (TPD) or Temporary Total Disability (TTD) i.e., restrictions from an authorized treating physician and not at Maximum Medical Improvement (MMI).

There are rare occasions when an injured worker is entitled to TTD but not receiving it while actively employed with the Employer and the Carrier has not asserted an affirmative defense to payment of TTD.

These defenses typically have burdens of proof that they do not meet. Treating these like affirmative defenses and waiting to see if they prove their case is not always the best strategy. Some of these defenses can be defeated in advance of a compensation hearing and should be if possible.

The Judge of Compensation Claims (JCC) is going to make a fact-based determination on whether your client is entitled to TPD, so have your client do everything to showcase a willingness to work within restrictions or reveal their good reasons for not continuing to work with the employer.

Voluntary Limitation of Income

- Insurance companies can deny paying temporary benefits when they believe the injured worker is limiting their income voluntarily. The statute governing this is:

Fla. Stat. § 440.15:

- (6) EMPLOYEE REFUSES EMPLOYMENT. —If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefore, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable. Time periods for the payment of benefits in accordance with this section shall be counted in determining the limitation of benefits as provided for in paragraphs (2)(a), (3)(c), and ¹(4)(b).

These are recommendations:

If the employer is offering work within the employee’s restrictions, immediately have the claimant send in writing a willingness to accept that work.

• “Wage loss involves a periodic inquiry, [moreover, a ] claimant’s failure to make a required showing for one period does not preclude wage loss benefits for subsequent periods.” Arnold v. Florida’s Blood Centers, Inc. 949 So. 2d 242 (Fla. 1st DCA 2007) quoting Garrick v. William Thies & Sons, 547 So. 2d 232 (Fla. 1st DCA 1989).
• If your client rejected an offer of work, they can fix that refusal by rescinding that rejection.
• "The affirmative defense based on an unjustified refusal of an offer of employment applies only during the continuance of the refusal.” Moore v. Servicemaster Commercial Services, 19 So. 3d 1147 (Fla. 1st DCA 2009).
• Send the willingness to work in writing and put that into evidence coupled with their testimony of their willingness to work. That will prove the limitation of income is caused by the work injury and the employer as opposing to your client.

- If the injured workers actually quits their job, the way to fix it is a little different:

- (7) EMPLOYEE LEAVES EMPLOYMENT.—If an injured employee, when receiving compensation for temporary partial disability, leaves the employment of the employer by whom she or he was employed at the time of the accident for which such compensation is being paid, the employee shall, upon securing employment elsewhere, give to such former employer an affidavit in writing containing the name of her or his new employer, the place of employment, and the amount of wages being received at such new employment; and, until she or he gives such affidavit, the compensation for temporary partial disability will cease. The employer by whom such employee was employed at the time of the accident for which such compensation is being paid may also at any time demand of such employee an additional affidavit in writing containing the name of her or his employer, the place of her or his employment, and the amount of wages she or he is receiving; and if the employee, upon such demand, fails or refuses to make and furnish such affidavit, her or his right to compensation for temporary partial disability shall cease until such affidavit is made and furnished. If the employee leaves her or his employment while receiving temporary partial benefits without just cause as determined by the judge of compensation claims, temporary partial benefits shall be payable based on the deemed earnings of the employee as if she or he had remained employed.

• The same rules apply as with refusing employment: if your client rescinds the resignation, it puts the onus on the employer to take them back.
• Start a job search.
• “Even when a disabled employee does lose a job for extraneous reason, a good faith job search may serve as important proof that the employee is unable thereafter to find suitable employment on account of the disability. Coupled with medical restrictions, a good faith job search is not infrequently more than adequate proof of eligibility for temporary disability benefits.” Arnold v. Florida’s Blood Centers, Inc. 949 So. 2d 242 (Fla. 1st DCA 2007).
• There is also a potential argument if the employer offers the employee a different position at the same company, the position might not be suitable for the employee and they do not have to accept it. Woods v. St. Anthony’s Hosp., 586 So. 2d 415 (Fla. 1st DCA 1991).

Claimant Refuses Offer of Work Not with Employer

Within the defense of refusing employment under Fla. Stat. § 440.15 (6) there are typically two scenarios. The first is when the employer is offering work. The second is when the Employer or Carrier offers work outside of the employer. This is done with various labels including “transitional” work or “volunteer” work. These can be handled a little bit differently because they do not work for the subject employer. The work should not be turned down automatically.

- First thing is to do an investigation into this offer of work.

• What is the pay, the number of hours, the physical requirements of the job? If you can show the work is beyond the treating physician’s restrictions or the pay doesn’t match the AWW, the Employer and Carrier (E/C) is going to have an uphill battle showing this is a legitimate offer of work.

- Send out discovery requests asking the E/C to provide:

• Agreements with the E/C and the employer offering work regarding job placement of injured workers.
• Agreements regarding reimbursements of wages for hours worked by injured workers.
• Copies of the job description and requirements.

- Take depositions of the adjuster, employer representative, and representative at the place where the offer is being provided.

• Find out how the employer is benefiting from this job placement.
• Find out if the employee is covered by the employer’s workers’ compensation coverage if they are injured at this new job.

- I make sure my clients do not fill out an additional job application. There is no requirement they obtain an additional job. If this is a legitimate offer of work through the E/C, then all the paperwork needed is in the position of the subject employer. They should never sign anything with the new employment regarding release of liability.

- Authority for this reasoning is as follows:

• Watson v. Adecco, OJCC NO: 10-022013EHL

§ JCC really considered if the work offer was suitable within the meaning of the statute.

§ The work offered had no specific tasks required, no specific hours required and was not designed to provide services for or advance the interest of the employer.

§ Considered questionable employment within the meaning of Chapter 440.

§ JCC noted that the employer sometimes used a service that reimbursed the employer for wages because of injured workers working at the new facility. This would have been more convincing it was legitimate work.

§ The lack of connection between the volunteer work and the subject employer was important in determining if the work was suitable.

At Carrillo Injury Law, we come alongside you to determine the best legal options for your situation. Schedule a free consultation today by calling 352-371-4000.