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Difficulties with the Waiting Period under §440.12(1)

By:  Sal Coppolino, Associate, Jacksonville

Florida Statute §440.12(1) created what is commonly known as the “waiting period” of indemnity benefits. In short, indemnity compensation is not due for the first 7 days of the claimant’s disability, unless the injury results in more than 21 days of disability. If the injury does result in more than 21 days of disability, then the claimant will be compensated for the whole disability period, including the first 7 days.

As an example, if a claimant’s disability period lasts 17 days, she is compensated for the 8th-17th day of disability. If her period of disability lasts 22 days, she is compensated for the whole 22 day period.  This applies despite the class of disability. TTD and TPD periods can be stacked to meet the 21 day waiting period. Note: For accidents prior to July 1, 1990, the waiting period is 14 days.

While this is sometimes a simple analysis depending on the facts of the claim, problems can arise when the claimant does not return to work during the waiting period, but returns to work shortly after.  In some cases, the waiting period is simply never released/paid despite the disability lasting longer than 21 days, which can result in exposure to back benefits and attorney fees down the line. When the claimant returns to work after the waiting period and begins to earn most of their average weekly wage, Employer/Carriers have tried to argue that the waiting period is not due since no TPD benefits are owed.

In a recent JCC case out of Ft. Myers, Judge Clark noted that such an argument could potentially be confusing receipt of benefits with “disability,” which was defined under Florida Statute §440.02(13) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” Since the claimant in the Ft. Myers claim remained on work restrictions for longer than the necessary 21 day waiting period, Judge Clark found that the “disability” period had been met and awarded the waiting period benefits to the claimant. (OJCC Case No. 18- 018601FJC). Other judges have appeared to interpret the period of disability as the amount of days the claimant had missed from work. To complicate matters,  there are often disagreements as to whether the period of disability arises as of the date of the accident, or the date of the first authorized treatment.

Judges of Compensation Claims around the State have taken different approaches regarding the interpretation of the waiting period language. If you find yourself having to make a tough call on whether to pay the waiting period, check in with an Eraclides Gelman attorney in the jurisdiction of the claim. They’ll be able to tell you if and how the local JCC has decided on this issue in the past.