August 2008


Since the new changes to the W/C law in 2003, I have found it increasingly difficult for the Employer/Carrier to sucessfully deny temporary partial disability benefits when Claimant leaves employment while on restrictions.  Only if a Claimant voluntary limits his own income, can an Employer/Carrier properly deny temporary partial benefits.  Case law further states that even if Claimant voluntary resigns, she can still earn temporary benefits if she is able to show a connection between the compensable injury and the subsequent wage loss.

As for firing an employee for misconduct while eligible for wage loss, the Employer/Carrier must prove the standard of misconduct as applied to unemployment compensation hearings, a tough standard to say the least.  Now, the First DCA is saying that an Employer/Carrier has the burden of proving that at least one job existed within Claimant’s restrictions when the E/C raises the affirmative defense of voluntary limitiation of income.  Simply showing to the Court that Claimant left on her own volition is not enough, there has to be proof of an abandonment of a legitimate job within her restrictions.

So, it is important for Employers to realize then that when an injured workers resigns, for whatever reason, that a documented position is still available.  For an Employer must show that if not for the Claimant’s resignation, she would still be earning wages.  Merely letting the Claimant walk out your door and not saying or documenting anything will not do. 

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As referenced in a previous post, and via section 440.34(3), an Employer/Carrier that prevails at trial can seek reimbursement of its costs from Claimant.  Now comes a new First DCA decision that takes this law a step further. 

In Palm Beach County School District v. Ferrer, the Court ruled that an Employer/Carrier can seek cost reimbursement from a Claimant, even if the parties do not go to trial.   In Ferrer, Claimant dismissed seven petitions on the eve of trial.  The Employer/Carrier deemed this a victory and file a Motion to tax costs from Claimant.  The JCC denied the motion on the grounds that the parties never went to trial, therefore no one “prevailed.”   The First DCA disagreed, reasoning from case law that when a plaintiff dismisses its action, the defendant is deemed the “prevailing party.”   

This is excellent news for Employers and Carriers.  It broadens the s. 440.34(3) beyond the realm of trial.  It puts the onus on Claimant to decide whether it is worth to pursue a claim that may not pan out during discovery.   With many expecting a liberal attorney fee decision to come out of the Supreme Court with Emma Murray, this case seems like a tort reform decision to counter the increase litigation that is expected.

A quick sidenote: the Ferrer decision does not apply to resolved petitions.  If an Employer/Carrier provides the benefits sought in the petition and Claimant dismisses the suit, then it is obvious that Claimant has prevailed.