Count temporary partial disability (TPD) along with the 5-day rule and the statute of limitations, as an area the First DCA wants to clarify.   And, clarify they did. 

With many Florida employers shedding jobs over the last three years due to the current econmoy, the question of TPD entitlement is becoming an ongoing debate among the defense and Claimant’s bar.  How do you connect Claimant’s wage loss to the compensable injury when the reason for wage loss is the economy?

With Wyeth/Pharma Field Sales v. Toscano, we now have a definitive ruling on the matter.

In Toscano, the Claimant suffered a compensable accident.  The Employer could not accommodate her restrictions nor did they furnish her any re-employment services.  Due to the economy, the Employer laid off 1,200 employees including Claimant.  Immediately, the E/C denied TPD benefits on the basis that her loss of earnings was not related to her injury but corporate downsizing. 

At trial, the E/C contested TPD on the grounds that she was capable of working but stipulated that Claimant was not at maximum medical improvement (MMI).   Moreover, the E/C presented no evidence, instead insisting that Claimant did not meet her burden of proof because she did not engage in a job search.   The JCC awarded the TPD benefits to Claimant and the First DCA agreed.

These are simple facts, but what makes this case important is the Court’s long analysis of how a TPD claim should be decided at the lower court level.  In a detailed opinion the Court clarifies the evidentiary relevance of a job search as well what are the burdens of proof for a Claimants and E/C’s.

To summarize, to prove TPD, a Claimant must show that: 1) she is not at MMI, 2) she is unable to perform the tasks of her pre-injury job, 3) this inability to perform results in a wage loss that is less than 80% of her average weekly wage.  In this case, the Claimant proved all of these with the E/C’s stipulation, medical records, and wage loss forms. 

In the Toscano case, the E/C first argued that Claimant must prove that the injury prevents her from performing all other potentially available employment.  The Court disagrees, acknowledging that this applied to PTD not partial disability claims.   And, here is a quote for future PTD claims that the Court uses:  “simply being able to work and search for work is not economically equivalent to gainful employment.”  (Clarification, indeed.)  This seems to give Claimants a huge leap of faith in proving TPD to a judge.

Second, the E/C contended is that Claimant did not perform a job search to prove entitled to TPD.  The Court shoots this argument down on the premise that job searches, while helpful in proving TPD, are not a requisite to proving TPD.  In 1994, the Legislature removed this requirement.  While a job search helps, it does not preclude a Claimant from obtaining benefits.

Finally, for good measure, the Court walked through the affirmative defenses that the E/C can declare but must prove.  If a Claimant unjustifiably refuses work as offered by the Employer, she is not entitled to benefits.  And, if a Claimant, who is still receiving TPD benefits, leaves her job “without just cause” then TPD benefits will only be paid based on the deemed earnings as if Claimant was still employed.  The same is applied when Claimant is fired for “misconduct.”

Furthermore, the E/C has the burden to prove the Claimant “voluntary limits her own income” as is not entitled to TPD benefits.  Since the Carrier is responsible, under the Admin Code, to determine entitlement to TPD payments, it is also responsible for proving Claimant limits her own income and/or if she is earning the same or more than her AWW.  

The bottom line is that none of these defenses are part of Claimant’s prima facie case.  The E/C has the burden to prove any of them and if they cannot, a judge must award TPD.

Now, what does this decision mean for E/C’s?  For one, we need to watch out for claims where the Employer has layoffs.  Just because a Claimant is not working due to unrelated W/C issues does exclude her from TPD eligibility.  Since “simply being able to work and search for work is not economically equivalent to gainful employment,” Claimant’s are going to get a huge benefit of the doubt when they tell a judge they cannot find work within their physical restrictions.

Two, it is the E/C’s responsiblity prove the denial.  If Claimant is not at MMI and has restrictions, the E/C is pretty much expected to pay.  If you have a refusal to work or Claimant is fired for misconduct, be sure to have your ducks in a row because with this case Claimant attorney’s will be poking your defenses any chance they get. 

Third, understand that job searches don’t help the E/C at all anymore (PTD maybe another story).  A Claimant does not need one and if she brings one to the Judge it will be very difficult disproving it (calling witnesses to all of the potential employers).