Lost Wages in Workers’ Compensation Claims

November 21, 2022 in
workers compensation attorney west palm beach

Under the Florida Workers Compensation Law, lost wage benefits are paid based upon disability from a work-related injury.  What is disability? Disability means you are unable to earn the same wages you were earning at the time of injury.  To prove disability you need to show a casual connection between your loss of wages and the workplace injury.  To do this you must present objective medical evidence.  This comes from X-rays, MRIs, or other tests showing impairment.  It cannot simply be based upon your complaints of pain.

Temporary Disability Benefits

Following a work-related injury, while you are receiving treatment for your injury, you are considered to suffer a temporary disability. Your disability is considered temporary in nature because it is presumed that you will recover, or at least will recover to the extent that no further medical treatment will improve your condition.  This does not necessarily mean that you will be back to the way that you were pre-injury.

Total Disability

If you are temporarily totally disabled, you are unable to return to work.  This does not just mean the job that you were working when you got injured.  This means you cannot do any meaningful work.  If you are temporarily totally disabled you will get the most money or lost wage benefits that you can get per week under Workers’ Compensation.  Your rate cannot be more than two-thirds of what you were earning per week, by law, at the time of the accident.  So, you will never obtain more money per week in workers’ compensation benefits than had you remained working.  Most people are alarmed at how little their workers’ compensation benefits are when they receive two-thirds of their former wages.  These total disability benefits only continue until the doctor either releases you to return to work full duty or partial, light duty.  Once you again can return to some kind of work, even with restrictions, you are no longer considered totally disabled.

Partial Disability

If you are able to engage in some type of work, then you are considered partially disabled.  Commonly this occurs when your doctor puts work restrictions on you indicating an ability to engage in some type of work.  Your employer does not have to pay you workers’ compensation lost wage benefits if you are offered a job that fits within your restrictions and you return to work and take that job because you would then get compensation through your earned salary/wages.  If you receive less money working at a lighter duty capacity or working in a different lesser pay position, then you may still be entitled to workers’ compensation benefits.  But, your weekly rate is going to be based upon the difference between your pre-injury wages and your post-injury wages that you are earning at the light-duty job.  For example, if you were earning $100 a week prior to the injury, and now you return to work light duty earning $70 per week, then there is a deficit of $30.  Since you are now making less than 80% of your pre-injury wages, you will be entitled to worker’s compensation benefits.  (If you were earning 80% or greater, you would not be entitled to any lost wage benefits).

If your employer does not offer you a job, then you can collect the full, total, lost wage weekly benefit amount, just as you would if you were totally disabled.  If your employer does offer you a job, but the job is not within your restrictions, or there is some good reason why you cannot take the job, then you may be able to refuse it and still collect workers’ compensation benefits.  The Judge would have to make a determination as to whether your refusal of the job offer was justified or not.

Medical Recovery Maximum Medical Improvement

Temporary total and partial disability benefits can continue up to 260 weeks, (5 years combined disability).  At that point, and usually, well before that, your doctor may find that you have reached maximum medical improvement.  This means that your condition is not expected to medically improve anymore.  Treatment has ended, with the exception of maybe some pain management.  You have recovered to the greatest extent possible.  This is a very significant turning point in your workers’ compensation claim.  Once you have reached maximum medical improvement, then you are no longer entitled to temporary disability lost wage benefits!  It does not matter that you still are disabled and cannot return to work, or that you cannot return to doing the job that you were doing before the injury.  Many people are shocked to see their benefits stop when they still cannot return to work.

Permanent Total Disability

Can lost wage benefits ever continue past 260 weeks, or 5 years?  Yes, but in a very narrow set of circumstances.  You need to suffer a permanent total disability.  In Florida, you will be considered permanently totally disabled generally if you are unable to do any work, even a sit-down job.  If you suffer a catastrophic injury such as a severe brain injury, severe neurological disorder, are blind, or have severe sensory disturbances, you are presumed to be permanently and totally disabled.

However, most injured workers who suffer a permanent total disability, and cannot work even a sit-down job, do not have a catastrophic injury as described above.  So, for example, if you suffer a bad back injury and have difficulty standing, walking, or sitting for long periods; you may still be considered permanently totally disabled and be entitled to lost wage benefits, but it will be much harder to prove because that is not meet the definition of a catastrophic injury.

In order to prove a permanent total disability, without a catastrophic injury, you will need to show through a good job search effort that you were unable to find a sit-down job within 50 miles of your house due to your physical limitations.  Or, you will need to prove that you have permanent work restrictions coupled with an exhaustive job search that was not successful.  Or, you must prove that you are unable to engage in sedentary or sit-down work due to permanent physical restrictions along with vocational factors.  Vocational factors such as lack of experience, lack of education or skills, or age can work against your ability to find a job.  The burden to prove one or more of these elements is on YOU.

Seek Assistance

As demonstrated in this article, if you become injured from a workplace injury and cannot return to work, you may be entitled to workers’ compensation lost time benefits.  Depending on your disability level you may need to take steps to ensure that you secure those benefits.  Ultimately, you need to prove that you suffer a permanent total disability to ensure that your benefits continue after you have reached maximum medical improvement.  The insurance carrier will likely raise several defenses and hire experts to fight your claim.  An experienced workers’ compensation attorney can help you navigate the system and ensure that you not only obtain the benefits that you are entitled, but help you maximize your benefits.  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.