It is very easy to lose sight of the fundamentals when dealing with high volume and largely mundane claims which comprise much of the workers’ compensation landscape. This is especially true with regard to temporary partial disability benefits and light duty job offers. The vast majority of workers ‘ compensation claims start the same way – the worker gets injured, he goes to the doctor and the doctor gives him work restrictions, then the employer is tasked with finding the injured worker a job within his restrictions. Too often the indication from the employer that an appropriate light duty position was offered is relied upon without taking the necessary steps to verify. The goal of this article is to ensure every person reading remembers the importance of the light duty offer and admissible evidence/proof that the same was offered.
Pursuant to Florida Statute §440.15, an injured worker is entitled to TPD if he can prove a causal connection between his wage loss and the industrial accident. This is not a tough burden to satisfy. The burden then shifts to the employer/carrier to prove an affirmative defense, the most common of which is voluntary limitation of income. This defense is based on Florida Statute §440.15(6) which reads “If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, 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 JCC such refusal is justifiable.” The three main elements of this defense are: (1) the injured worker was offered a SUITABLE job, (2) the injured worker continued to refuse the suitable job, and (3) the injured worker’s refusal of the job was not justified. This article focuses on the second element.
We’ve all been there – you receive the claim and deny the request for TPD as the employer states they offered the injured worker a light duty position. Time after time the claim advances through litigation with the understanding that the employer offered a light duty position which the injured worker refused to accept. However, after looking a little deeper, it becomes apparent the only evidence we have to prove the light duty offer is the word of our employer. As I’m sure most of you have seen, JCC’s have a tendency to find in favor of the injured worker when the determination comes down to a “he said – she said.” The best and easiest way to shore up your voluntary limitation defense is as simple as this – PUT THE LIGHT DUTY OFFER IN WRITING. There is no reason to turn your strong voluntary limitation of income defense into a roll of the dice when the solution is as easy as putting the offer in writing. This allows the JCC to view indisputable evidence that a specific offer was made and when it was made. This supports the first element in that the JCC can determine if the job was truly suitable and also supports the second element in proving when exactly the job offer was made to the claimant. It is good practice to send the job offers via multiple mediums including e-mail, fax, and certified mail in order to provide evidence that the offer was sent AND received by the claimant and/or his attorney.
However, once the job offer is no longer available, this is many times sufficient proof for a JCC that the claimant is entitled to indemnity benefits as there is no longer a job search requirement in the statute. According to Moore v. Servicemaster Commercial Services, the First District Court of Appeal stated that an employer is not required to continually re-offer a job to avail itself of the defense of an unjustified voluntary limitation of income, but the employer must establish the continued availability of the job for each applicable period to obtain the continued benefit of the defense. This means that the employer/carrier must present evidence of how long the light duty job offer was available even if Claimant refused. Again, the best and easiest way to accomplish this is to PUT THE LIGHT DUTY OFFER IN WRITING AND TO DO IT OFTEN. It is imperative that we send out regular correspondence, whether it be bi-weekly or monthly, advising the injured worker that the light duty job remains open. This will eliminate any possibility for the JCC to hold the injured worker is entitled to ongoing TPD as we have irrefutable proof that the injured worker knew a suitable job was available, he knew how long it was available, yet he chose to refuse the job anyway. This amounts to a meritorious voluntary limitation income defense that will save money on TPD benefits, penalties and interest, and the dreaded attorneys’ fees.
Another rising area of concern that must also be addressed is the third element listed above – whether the claimant was justified in refusing a job offer. This is something that we have been seeing in litigation recently. Most recently, there have been several cases where judges have found the jobs offered by the employer were justifiably refused for a variety of reasons including, but not limited to, the job being considered degrading, sheltered employment, or was refused due to transportation issues despite the availability of public transportation. This appears to be an expansion on what the intent of the statute was and some of these issues are currently on appeal. However, the employer and the carrier must work together in order to ensure that suitable offers of employment are made and that the claimant cannot argue employment was justifiably refused in order to further support a voluntary limitation of income defense. You may want to get a defense attorney opinion on this issue should you have any questions regarding suitability of employment.
Although this article is much too short to examine the breadth and depth of defending claims for TPD, hopefully it underscores the importance of the light duty job offer and providing the necessary evidentiary support. Remember to always advise the injured worker how long the light duty job will be available and to PUT THE LIGHT DUTY OFFER IN WRITING.