Appellate Court Addresses Burden of Proof for Payment of Temporary Partial Disability Benefits and the Voluntary Limitation of Income Defense in Florida Workers Compensation Claims.
Temporary Partial Disability (TPD) workers compensation benefits in Florida are payable on three conditions. First, you must not be at maximum medical improvement (MMI). Second, you must have work restrictions that prevent you from performing your job or other jobs your employer has or finds for you. Third, you must be earning less than 80% of you average weekly wage (AWW).
Each word in “Temporary Partial Disability” is a term with legal significance. “Temporary” obviously means it is not permanent. It is expected that you are going to get better which means you are not at maximum medical improvement. “Partial” means it is not total in nature. You have been told you can work but with some restrictions caused by your work injury. “Disability” means the restrictions from your work injury cause you make less than 80% of your wages.
The workers compensation claimant has to prove each element of a Temporary Partial Disability benefits claim with medical evidence. If the workers comp claimant fails to do this, the insurance company does not have to pay Temporary Partial Disability benefits.
In Wyeth/Pharma Field Sales v. Toscano, 35 FLW D1520 (Fla. 1st DCA 2010) the 1st District Court of Appeal provided guidance to the workers compensation claimant and the workers compensation insurance company regarding their burdens of proof.
Toscano worked as a sales representative when she suffered physical restrictions from her workers compensation accident that, while not totally disabling, prevented her from performing her pre-injury functions while she was still recovering from her workers compensation injury. Since the employer had no light duty work available within her restrictions she was earning no post-injury wages. During Toscano’s light duty status Wyeth/Pharma Field Sales had a massive layoff of 1200 people including Toscano’s position. The workers compensation insurance company refused any further payment of Temporary Partial Disability benefits claiming that Toscano’s loss of wages was the result corporate downsizing and not her restrictions.
At trial, the workers compensation insurance company claimed that Toscano was voluntarily limiting her income, commonly referred to as the “voluntary limitation of income” defense. It argued that Toscano had to prove there were no other jobs in the area and since she was not looking for a job she had not proved her case. The evidence showed that Toscano had never been told to look for a job and the court noted that no such requirement exists in the workers compensation law as a pre-condition to entitlement to temporary partial disability benefits.
The court held that to be entitled to temporary partial disability benefits the injured worker need only show that restrictions resulting from the workers compensation accident prevent the employee from performing their normal job duties and that they are earning less than 80% of their pre-injury wages. Once the employee has done this, the burden of proof shifts to the insurance company to prove, to the court’s satisfaction, that the employer had a job available within the employee’s restrictions or the employer found other work which was available for the employee through another employer which the employee refused to accept, or that she would have found work if she would have looked for a job. In each of these three scenarios the insurance company must also show that the proposed employment would generate at least 80% of the employee’s pre-injury wage or TPD may still be owed.
Proving that the employer has light duty work available for the employee within their restrictions is relatively easy. The employer need only show that it contacted the injured worker advising them of the light duty job and that the employee refused the work for each two week period of TPD claimed.
Proving that the employer made work available to the employee through another employer is probably not practical since it would require that the employer tell the injured worker about the work it arranged for the employee with the prospective employer and the prospective employer would have to show up in court and testify that it would have hired the employee with restrictions and that the employee would have worked during each two week period of TPD claimed by the employee.
Proving that the employee would have found work within their restrictions if they would have looked for a job is much more difficult. Toscano holds that a work search is not a pre-condtion to be paid TPD. At a minimum, it appears that the insurance company would need to advise the employee that he or she should be looking for work within their restrictions with a new employer during their recovery. Also, the insurance company would have to hire a vocational expert to testify to litigate the issue which can prove expensive. Furthermore, for each two week period where the employee is claiming TPD , the insurance company must prove that work within the injured worker’s restrictions was available. Finally, common sense dictates that an injured worker with restrictions looking for a job will be required to tell the prospective employer about their condition resulting from a workers compensation accident which will foreclose any real chance of getting the job.
Injured workers now have a well defined set of obligations to prove entitlement to TPD benefits. This is as it should be. Workers compensation is a self-executing system that is supposed to place defined, limited benefits into the hands of the employee without the need for litigation. If the workers compensation insurance company wants to dispute payment of TPD it must seek out the employee and tell them about the need to look for a job, advise the employee of any work available to the employee through the employer and hire vocational experts when needed to prove it’s voluntary limitation of income defense.