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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