Florida employees injured in the course and scope of their employment may be eligible for workers' compensation wage loss benefits. Florida's workers' compensation system offers three types of wage loss benefits - Temporary Partial Disability (TPD) (Florida Statute 440.15(4)), Temporary Total Disability (TTD) (440.15(2)), and Permanent Total Disability (PTD) (440.15(1)). Of the three types of benefits, only TPD and TTD are available during the recovery stage, or before maximum medical improvement (440.02(10)). Of the two, only TPD is payable while the injured employee is able to work. This blog will discuss what evidence injured workers must present to make a prima facie case to receive TPD.
Under 440.15(4)(a), TPD benefits are payable "if overall maximum medical improvement has not been reached and the medical conditions resulting from the accident create restrictions on the injured employee's ability to return to work." For years, the second clause of this simple sentence has resulted in extensive litigation. With the recent decision in Wyeth/Pharma Field Sales and Gallagher Bassett v. Vivian Toscano, 40 So.3d 795 (Fla. 1st DCA 2010), the heavy litigation may be at an end.
Sales concerns a claim for TPD benefits. While the Claimant was recovering from injuries sustained on the job, she was restricted by her doctor from performing the functions of her regular job. Because the employer failed to make light duty work available, the Claimant remained out of work, thus earning no wages. Also during this period of time, the employer layed off 1,200 workers, including the Claimant. Although the employer accepted the compensability of Claimant's accident and injuries, it refused to pay TPD benefits. A claim for TPD was filed and the case went to trial.
At trial, the Claimant established through medical and other evidence, that her physical limitations after the accident did not allow her to return to and adequately perform her prior job with the employer, resulting in a reduction of her wages below 80% of her pre-injury average weekly wages (AWW). See section 440.15(4)(a) (providing compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn post-injury, as compared to weekly). The employer defended by contending that the Claimant could not establish a "causal connection" between her compensable injuries and her subsequent loss of wages. The employer pointed to the layoff and argued that the Claimant was capable of working and voluntarily limiting her income. The employer also proposed that the Claimant could not satisfy her burden of proving a causal relationship between her injuries and the subsequent loss of income, because she failed to engage in a job search during her period of medical recovery. The employer presented no evidence that the Claimant was terminated from post-injury employment for misconduct, or left the employment for unjustifiable reasons.
The Judge of Compensation Claims, Charles Hill, III, disagreed with the employer, concluding that, by proving the incapacity to perform her pre-injury job, which resulted in a direct reduction of earnings, the Claimant had carried her burden for TPD benefits under 440.15(4)(a), a burden which was not overcome by the employer. The employer appealed the judge's ruling. The First District Court of Appeal upheld Judge Hill's ruling.
Because the TPD issue is one of great importance and much confusion, resulting in extensive litigation, the court decided to publish a thorough and thoughtful opinion for guidance. The effort is appreciated. The court addressed numerous points. Among them:
Affirmative Defenses to Payment of TPD
Affirmative defenses are legal positions raised by a party in opposition to claims for relief made against them by another party. The party raising an affirmative defense has the burden of proving the defense. The opposition has no obligation to rebut a position that has not been established. The appellate court noted that the employer failed to come forward with any evidence supporting any affirmative defense to TPD, which include: the employee unjustifiably refuses suitable employment; the employee is terminated from post-injury employment for "misconduct;" the employee leaves her post-injury employment without just cause.
At one time in Florida, Claimants were required to perform job searches in order to receive TPD benefits. That provision of Chapter 440 was repealed in 1994. As Judge Hill recognized and the appellate court agreed, the Florida statute no longer requires a job search for TPD benefits. Although the appellate court noted that the concept of a job search has reemerged in case law addressing postamendment date of accidents, it concluded that imposing such a requirement in every claim for TPD is inappropriate. The court observed that the application of a job search requirement may be limited to situations where the employee was able to return to work full-time and earn wages greater than or equal to 80% of AWW for a long period of time, but was terminated for reasons unrelated to his injuries.
Conclusion: Sales makes clear that a prima facie case for TPD benefits is made by the Claimant's presentation of competent and substantial evidence of a causal connection between the compensable injuries and a subsequent loss of wages. It is not the Claimant's burden to prove in his or her case in chief that an adequate job search was performed or that suitable alternative employment was not refused. These affirmative defenses are the burden of the employer to establish. Once established, however, the Claimant is well advised to rebut them. Failing to do so may result in the denial of TPD benefits.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.