If I am out of work due to a work-related injury, do I have to look for work to be entitled to workers’ compensation benefits?

May 25, 2021 in

Under the Florida Workers Compensation Law, benefits are paid based upon disability.  Disability means an “incapacity because of the injury to earn in the same or any other employment the wages which the employer is receiving at the time of the injury”.  Basically, the amount of workers’ compensation benefits will be determined based upon any loss of earnings due to disability.  If there is a return to work post-injury, then benefits will be based upon the difference between pre-injury and post-injury wages. These benefits are called temporary partial disability benefits because they only extend until the injured worker has reached maximum medical improvement.  Maximum medical improvement means that the injured worker is not expected to improve or further recover from the injury. Further, these benefits can only extend to 104 weeks, which is the maximum allowable number of weeks of partial disability benefits under the law. Fl. St. 440.15(4). Also, the injured worker has to be able to earn less than 80% of his or her pre-injury wages to be entitled to any temporary partial disability benefits.  In any event, the injured worker has the burden of showing that any subsequent loss of wages was as a result of the compensable workplace injury.

 

If an injured worker has the capacity to do at least some work, and has an earning capacity, he or she will be considered temporarily partially disabled, prior to reaching maximum medical improvement. In contrast, inability to do any work, or having no earning capacity, would render one temporarily totally disabled. The question then becomes, if the injured employee has some earning capacity and is able to do some work, even if not at the level that they were working pre-injury, is he or she under an obligation or requirement to look for work?  The answer is “no”.  There is no requirement that an injured worker search for work, but there may be circumstances where it would be a good idea, and even necessary.

 

There are ways that an employer can suspend temporary partial disability benefits under the statute.   The employer can argue that the worker refused a job offer. An employer may offer modified employment, such as light duty work within the employee’s work restrictions. If an injured worker does not return to work because they believe that the job offered would be too difficult for them, or cause them pain, it is up to the Jude of Compensation Claims, (“JCC”), to determine if the job offered is appropriate and suited for them. If an employee unjustifiably refuses a suitable offer of employment, then benefits can be suspended. That does not mean that there is no way to later re-establish entitlement to benefits. For example, if the employee is later terminated from employment or laid off; then the employee is no longer technically “refusing” employment and may be entitled to compensation at that point.   Moore v. Servicemaster, 19 So.3d 1147 (Fla. 1st DCA 2009).

 

Also, if an injured worker is terminated for misconduct, then no temporary partial disability benefits will be payable following such termination.  Fl. St. 440.15(4)(e).  Notably, if an injured worker is terminated from employment for reasons other than misconduct, then the period of time following such termination, while the employee was out of work, would not constitute a period of refusal of employment, and benefits may be awarded. Fardella v. genesis Health, 917 So. 2d 276 (Fla. 1st DCA 2005).

 

 

It is always the injured worker’s burden to show that any lost wages are causally related to the work-related injury and not for other non-related reasons. So, if an injured worker leaves employment to care for a family member or for other unrelated reasons, then it is up to the JCC  to determine if the subsequent loss of earnings is causally connected to the work-related injury. The JCC needs to make factual determinations as to whether a job was available during the relevant time period and whether the injured worker justifiably refused an offer of employment.  Clarke v. Fla. Dept of Financial Services, 275 So.3d 846 (Fla. 1st DCA 2019). Benefits may be suspended if an employee leaves his or her employment without just cause. In such case, the employer can pay disability benefits based upon the “deemed earnings”, of the employee as if they had still continued to work.

 

Remember, the injured worker always has the burden of showing that there is a causal connection between the compensable injury and any subsequent loss of income. Once this burden is met; the employer may raise defenses such as that the employee voluntarily limited his earnings, or refused a good job offer, or stopped working for unrelated reasons. However, even if the causal connection becomes severed, the employee can re-establish that connection by, for example, searching for work within his or her restrictions. If the employee can prove that he or she is unable to find other work based upon disability, then that would arguably re-establish a right to benefits.  Of course, an employee could also show causal connection between a work- related injury and subsequent loss of earnings with evidence of medical restrictions confirming disability.  Arnold v. Florida’s Blood Ctrs, 949 So.2d 242 (Fla. 1st DCA 2007).

 

Thus, making a good faith job search for work within one’s restrictions, although not required for benefits, may be warranted in order to establish causation between the workplace injuries and any subsequent loss of earnings.  The burden to demonstrate this causal connection is always on the injured worker.

 

As demonstrated in this article, an injured worker must establish certain elements of his or her claim before being entitled to workers’ compensation disability benefits, whether temporary or permanent in nature. In response, the employer may raise any of a number of defenses challenging the causal relation between your injury and any loss of wages; and you must be ready to respond.  If you have suffered a work related injury, contact us at the LaBovick Law Group to see what benefits you may be entitled to.  We provide free consultations where we will review the facts of your case to determine the right course for you.  Call us today at (561) 625-8400 for your free evaluation.

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