After the release of the Toscano decision (see my analysis here), there has been a mad rush to judgement among the Claimant’s bar and the defense bar.  And neither side seems rational.  For a case that was supposed to clear the air over TPD entitlement, Toscano has had the opposite effect.  Claimant attorneys now assume they just show up at trial and win TPD, and Carriers don’t even bother to document the times a Claimant refuses reasonable light duty employment. 

For me, the case was a simple, legal primer on what the burdens of proof and defense for TPD.  While, the specific ruling–an E/C cannot rely on a lay off to account for its defense–is bad for the defense, I think the case is helpful in assessing exposure and whether a solid affirmative defense exists.  For all the hoopla, Toscano stands for the old standard of “casual connection.”   It seems the entire W/C forgot that.

Now, there is a case where the First DCA affirms the established standard of “casual connection.”

In Ramos v. Continental Florida Materials, Claimant sought TPD benefits, but was denied by the JCC because he failed to prove a “casual connection” between his work related injury and subsequent wage loss.   This is the standard in the Arnold v. Blood Centers case.  

And the Toscano decision is in line with that.  Keep in mind, Toscano establishes the standards of proof for TPD.  It is not a free pass for Claimant’s to win TPD.  They still need to show this casual connection.  An Employer/Carrier can refute the connection with evidence of a refusal to accept accommodated restricted work or through misconduct.   A Claimant in turn can show a connection through medical evidence or an optional job search.

But, what if Claimant returns to work with the Employer, under accommodated restrictions, and then moves to another state and then seeks TPD benefits?  Is the causal connection broken?   One would think so.  

The bottom line is that Claimant’s still have a burden to prove TPD benefits, just as E/C’s have a burden to prove an affirmative defense. 

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