I bring this subject up mainly because the past few files referred to me have to do with this subject. I even had a trial on the issue (which the parties ultimately settled) last week.
What I am referring to is whether an Employer/Carrier can suspend or deny temporary partial disability benefits if a Claimant refuses light duty work offered by the employer. The statute, section 440.15(6) is clear that a Claimant is not entitled to TPD benefits unless the refusal is justified. “Justified” being the key word and the definition to be interpreted by the JCC at final hearing.
In two of the three most recent cases I have, both Claimants were injured in compensable accidents, placed on restrictive work duty (let’s call it light duty for purposes of this post) and both refused. So, the E/C can just deny benefits, right? Unfortunately, it is not that easy. An E/C needs to take an honest, objective look at each individual case to determine if the refusals are justified.
In these two cases, the Claimants were placed on light duty work, they were offered accommodated full time work within their restrictions (in writing), and both Claimants refused to show up for the work. And in both of these cases, I feel comfortable with the E/C denying TPD benefits since there is absolutely no justification by both Claimants. Neither of them even showed up to see if they could physically perform the work and there were no medical opinions indicating the light duty work being offered was too difficult in light of their injuries.
As I’ve written before, the E/C has the burden of showing to the Judge that at least one job existed within existed within Claimant’s restrictions when the E/C raises the affirmative defense of voluntary limitation of income. In both of these cases, the E/C seems to have met the burden.
Now, the third case is a bit more difficult. In that one, Claimant was injured in a compensable accident, she was taken off work by her doctor and placed on temporary total disability (TTD), until recently being put on light duty status. The problem is that while Claimant was out of work, the Employer filled her position. While there was light duty work available for her, Claimant would have to travel–sometimes more than 50 miles–to the Employer’s satellite offices.
Claimant refused the light duty work on the premise that the travel time to work would be too far. Now, this maybe a justifiable excuse. She may have young children that require expensive day care and the added time away could deter from that. Or, the extended time sitting in a car could exacerbate her compensable injury or be outside the restrictions her physicians mandate.
Or, her refusal could be completely unjustifiable. She may have had to travel for the Employer this much before the compensable accident. She may only have to travel once or twice a week. Her Employer could pay her mileage or continue her hourly wage for travel. The point is that this case could go either way. What is required is an objective, honest evaluation of the individual situation.
If you as the E/C feel that Claimant does have some justification in refusing the employment, then you should attempt to resolve the TPD issue, or reinstate payments. On the other hand, if you feel the refusal is completely unjustified, then you need to shore up your defense since you have the burden of proof. You can do this by securing the facts with the Employer representative and preparing their testimony for trial.
But, do not just accept the facts on their face. An investigation is required to determine what is justified.