“Taking It Easy: Things to Consider When Offering a Light Duty Position”
By: Marilyn Linares and Elias Jreji | Jacksonville, FL
Not every employer can offer light duty or even modified duty. There are companies, such as ReEmployAbility, which offer return-to-work programs, typically placing the claimant with local non-profit agencies such as Goodwill and Salvation Army. This raises the question: when is a claimant permitted to refuse a light duty job offer without forfeiting indemnity benefits?
According to section 440.15(6) Florida Statutes, if a claimant refuses suitable employment, they “shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable.” Suitable employment is defined as “employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earnings at the time of injury.” Fla. Stat. Ann. § 440.491(g) (West)
A claimant may not forfeit benefits if they can show that refusal to accept suitable employment offered by the employer was justifiable. However, courts have differed on what type of refusal would be justifiable.
What is Justifiable?
In EmployBridge v. Rodriguez, the JCC found that the claimant’s refusal was justifiable, taking into account the “language limitations, driving limitations, a singular vehicle in the family mainly used by her husband during his odd work hours, no familiarity with public transportation, suggestion of dependence on other family members to drive from Tampa to Largo to pick up the claimant, take her back to Tampa, and then back to Largo . . ., claimant’s  pain from her knee to her hip when sitting for long periods of time, and claimant’s willingness to work for the Largo office”; however, the First DCA determined the claimant’s refusal was not justifiable because the record did not support its conclusion. 255 So. 3d 453, 454 (Fla. 1st DCA 2018).
In Moore v. Servicemaster Commer. Servs., the claimant, a commercial housekeeper, underwent surgery to her dominant shoulder. She returned to work with significant restrictions on her right upper extremity, and three weeks of physical therapy was recommended. A light duty job of dusting with only the left hand was offered to the claimant, which she subsequently refused, indicating she would not return to work until she received physical therapy, that she was still in pain and could not perform the job because it was too difficult. The employer subsequently terminated her employment when the claimant failed to show up for work or call. The court found that when the claimant was employed but refusing light duty work until she received physical therapy, that the employer indeed had offered employment suitable to claimant, taking into account her restrictions, and claimant unjustifiably refused such employment. 19 So. 3d 1147, 1152 (Fla. 1st DCA 2009).
An employer/carrier is not required to make continuous offers of suitable employment to a worker’s compensation claimant for the statutory affirmative defense that the claimant voluntarily limited their income by refusing suitable employment to be available. See MJM Electric, Inc./OCIP v. Spencer, 275 So. 3d 1283, 1284 (Fla. 1st DCA 2019). However, the Court in Moore emphasized that an employer must “establish the continued availability of the job for each applicable period to obtain the continued benefit of the defense.”
In Viking Sprinkler Co. v. Thomas, the court found that “among the statutory rights conferred upon the E/C is definitely not included the right to choose, on behalf of the injured claimant, the occupation to be followed by him when his own freedom of choice and ability to perform a job have been impaired as a result of an industrial accident. As the evidence in [that] case amply demonstrate[d], the choice of suitable employment for an injured employee involves many factors, not the least of which are the employee’s aptitude, interest, desire, or “motivation” to engage in a certain type of work.” 413 So. 2d 816, 818 (Fla. 1st DCA 1982). The court relied on Walker v. New Fern Restorium, which found that “refus[ing] rehabilitation benefits because of the availability of any employment, no matter how ill-suited to the particular individual, would be counter to the statutorily expressed goal of rehabilitation – to return the individual to “suitable gainful employment.” Id. at 819.
The court expanded on this language in Woods v. St. Anthony’s Hospital, where the claimant was a nurse who was working two 12-hour shifts per week at the time of her injury. After her industrial accident, she was offered a clerical position working five 8-hour days per week completing insurance forms. She eventually quit the position because she was “going crazy” doing insurance all the time in a close room without windows. The JCC found that the light duty job offer was within the claimant’s restrictions and her resignation and subsequent failure to work were unjustified. The First DCA later reversed, finding that“virtually all of the claimant’s job experience [was] in the field of nursing. Nothing in the record suggest[ed] that she [was] suited to doing clerical work or that she ha[d] ever had the desire to do clerical work . . . while the record support[ed] the judge’s finding that the claimant [was] physically capable of performing the [clerical] job, such evidence [was] not sufficient to support a finding that the claimant voluntarily limited her income by rejecting a job that required her to work an additional 16 hours per week in a windowless room filling out insurance forms, or that such a job was ‘suitable employment.’” 586 So. 2d 415, 419 (Fla. 1st CA 1991).
Although using companies like ReEmployAbility is standard industry practice, it is important to remember that the court may look at additional factors, besides the claimant’s mere ability to perform a light duty job offer.
To support a defense of claimant’s failure to accept employment, it is important to provide medical evidence that the job description is within the claimant’s light duty work restrictions and the claimant is aware of the job offer. As a best practice, speak with the employer to confirm they could offer a light duty position to the claimant at no less than 80 percent of the pre-injury wage (to avoid paying indemnity benefits).
- Medical Evidence – When the claimant is given work restrictions, make sure to obtain a work release from the authorized treating physician, specifying the claimant’s work restrictions. Confirm with the doctor that the light duty job offer is within the claimant’s work restrictions.
- Notifying the Claimant – The light duty job offer should be provided to the claimant in writing via certified mail. The offer should include the date the job begins, the nature of the job and the rate of pay. It should also inform the claimant that the authorized treating physician reviewed and confirmed that the light duty job offer is within the claimant’s work restrictions.
“What You Need to Know About the Florida Heart and Lung Bill”
By: Erykah Jackson | Jacksonville, FL
In Florida, first responders benefit from a law called The Florida Heart and Lung Bill, Florida Statutes 112.18. The Heart-Lung Bill presumes first responders who develop a condition or impairment of health caused by tuberculosis, heart disease or hypertension arose from their job. First responders include law enforcement officers, correctional officers, or firefighters. The heart-lung Bill recognizes that first responders suffer more stress and exposure to toxins than other occupations. Therefore, the statute was created to make workers’ compensation benefits easier to obtain for this group of employees. Although the Heart-Lung bill is claimant friendly, the presumption is rebuttable.
Conditions covered by the presumption include coronary artery disease, high blood pressure, irregular heartbeats, enlarged heart or enlarged ventricle, and heart valve disease. Rebutting the statutory presumption of compensability requires proof the heart disease or hypertension arose from a non-occupational cause or resulted from a condition that existed before the first responder became employed with the city or state. For law enforcement officers or corrections officers, the presumption can also be rebutted by showing they departed from the doctor’s orders for treating their condition and the failure made the condition worse. Florida Statute 112.18(1)(c)(1)(a) If the Claimant fails to abide by the recommended treatment they will likely forfeit their medical and/or indemnity benefits offered under the statute.
Heart-Lung cases can be very difficult to rebut. The evidence must persuade the JCC that non-work conditions caused the heart disease or hypertension. Non-work conditions include certain medical risk factors that could develop into a heart condition. Judges of Compensation claims have denied compensability where there was evidence of medical risk factors such as chronic smoking, chronic untreated high blood pressure, a family history of heart disease, a congenital heart disease, illegal drug use, overconsumption of caffeine, or a combination of non-occupational causes. Arguing risk factors alone though are not enough. The defense attorney must show causation between the risk factors and the condition. The JCC has wide discretion to reject evidence the JCC does not find persuasive. If the JCC believes the claimant’s competing evidence is equally balanced on weight and credibility, the JCC will most often defer to the presumption and award compensability.
Heart-Lung cases can be extremely expensive for cities and states. Long-term treatment for the simplest condition can cost tens of thousands of dollars. Serious conditions that result in heart transplants can cost millions of dollars. It is imperative the defense attorney begin discovery early to retrieve medical records and obtain testimony about a claimant’s history of treatment for heart disease and hypertension.
“Appeals Court Clarifies Proper Use of 120-Day Letter in Churchill Case”
By: David Halpern | West Palm Beach, FL
Winston Churchill served as Prime Minister of the United Kingdom during World War II. Cynthia Churchill worked for DBI Services as a rest area attendant. While perhaps not as famous as her namesake, Cynthia figures to have the greater impact on Florida’s workers’ compensation system, thanks to an order entered in her case by the First District of Appeal (“DCA”) on May 31, 2023.
If you are reading this article, you are aware that carriers have three options when a claim is reported: 1) accept compensability, 2) deny compensability or 3) “pay and investigate” for up to 120 days.
In Ms. Churchill’s case, the DCA redefined what carriers must do to invoke the “pay and investigate” option when they are uncertain regarding whether to accept or deny a claim.
It was previously understood that a carrier invoking the “pay and investigate” option had the absolute right to deny compensability within 120 days from the initial provision of benefits. To illustrate, in 2006, the DCA in Checkers v. Wiethoff implied that a carrier’s failure to send claimants a 120-day letter did not prevent them from filing a denial within that 120 day period. 925 So.2d 348, 351 (Fla. 1st DCA 2006).
In contrast, in Churchill, the DCA ruled that invoking the “pay and investigate” option per F.S. 440.20(4) requires the timely furnishing of a 120-day letter by the carrier to the claimant. In other words, carriers cannot start investigations which may result in a denial within 120 days – they must actually put claimants on notice that they have done so. The DCA seemed concerned that without such a letter, claimants would not preserve the vital evidence they might need in the event a carrier later decided to deny compensability.
Per the DCA, “(h)ow is a claimant who receives those benefits to know if an employer/carrier has chosen to “pay and investigate” or simply to pay outright? . . . Without that (120 day) letter, a claimant would not know to preserve evidence for potential litigation of entitlement to benefits…”
The court added that “only a timely letter will suffice,” adding that the letter should be sent “at the time of making the payment or as soon thereafter as reasonably practicable.”
In Ms. Churchill’s situation, her accident occurred on November 1, 2020. The carrier made its initial payment of benefits (a payment for prescriptions) on November 10, 2020. The carrier did not provide written notice that it was invoking the F.S. 440.20(4) “pay and investigate” provision until January 8, 2021.
Compensability was then denied on February 24, 2022. Per the court, “Fifty-nine days between commencement of payment and written notice invoking “pay and investigate” is too long a period to be “upon commencement of payment,” and we hold that such a delay is not compliant with the requirements of section 440.20(4).” Because it found that the carrier had not timely complied with the F.S. 440.20(4) “pay and investigate” provision, the DCA returned the case back to the JCC with directions to treat the claimant’s accident as compensable.
This case is potentially problematic for carriers on two levels. For one thing, it will create another area of litigation where claimants can thwart an otherwise justified denial based on a technicality. Litigation may result from the “late” issuance of a 120-day letter preventing an otherwise justified denial, in the same way we now see the “late” scheduling of a one-time change appointment preventing authorization of an otherwise timely authorized physician.
Further, Churchill forces a carrier uncertain of compensability to pay for everything until a final decision on compensability is made within 120 days, including hospital bills. The overall risks associated with not sending this letter may now outweigh the risks of sending it.
To mitigate the exposure Churchill creates, I would consider including a 120-day letter as a form in your initial claim packet to claimants. Within the letter, consider using language stating “if a Notice of Denial is not issued within 14 days of your initial provision of benefits, this means that we are electing the 120-day pay and investigate option pursuant to F.S. 440.20(4).”
Whether the letter is sent out automatically in an initial packet, or manually on a claim-by-claim basis, Churchill mandates that it be sent without delay, if a carrier wishes to preserve its right to deny compensability within 120 days of its initial provision of benefits.
By sending this letter at the outset of a claim, carriers uncertain of compensability may have to provide more benefits early on than they might have until recently. The tradeoff is preserved ability to deny a claim (if justified) later on. Put another way, carriers who timely send a 120-day letter – just like the “other” Churchill – may lose a battle but still have a chance to win the war.
“Stuck with their one-time change doctor forever? Maybe not.”
By: Travis Coleman | Tampa, FL
One of the things we are always looking out for in a claim is a one-time change request by the claimant. As we all know, Fla. Stat. Section 440.13(2)(f) gives the claimant the opportunity to request one change in doctor during treatment for any one accident. The statute gives us 5 days after the receipt of the request to provide a new doctor. Should we fail to timely authorize a new doctor, the claimant can select a physician of their choosing authorizing that doctor if the treatment being provided is compensable and medically necessary.
Pursuant to Fla. Stat. Section 440.13(2)(a) the employer shall furnish to the employee such medical necessary remedial treatment, care, and attendance for such period as the nature of the injury, or the process of recovery may require. If we lose control of the selection of a doctor due to a blown one-time change, have we lost control for the rest of the claim if that new doctor is one who could treat several body parts? Let’s see.
The Court in Cauvin c. Baptist Hospital/Johns Eastern Company, Inc., OJCC Case No. 14-004873MAM, dealt with a claimant who injured their lower back and left shoulder. The claimant secured a one-time change of physician, of their choice, as the E/C failed to timely authorize a doctor. The E/C initially denied treatment for the cervical spine, but later accepted compensability for same and authorized another doctor for the cervical spine. The issue before the JCC in Cauvin was whether the claimant’s chosen one-time change physician is to be given authorization to treat the neck, rather than the E/C’s doctor selection. The JCC relied on Carmack v. State of Florida Dept. of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009 (which dealt with the self-help provision) which held that once the E/C accepts compensability of the condition, or authorizes the disputed treatment, the right of selection of the physician reverts to the E/C. Since in Cauvin the E/C accepted compensability of the previously disputed neck, the JCC found “the E/C ‘controls the selection’ of the treating physician, and ‘nothing in [the statute] requires the employer to accept the employee’s selection for future care.” Additionally, the JCC was unaware of any authority that prohibits the authorization of different physicians for different body parts, unaware of any authority that requires one doctor to treat multiple body parts, or which authorized the Court to order the E/C to authorize a physician different than the one they selected for the neck.
A case that we here in Tampa recently worked on, Thompson v. Darden Restaurants, Inc./Gallagher Bassett Services, Inc., OJCC Case No. 21-025250RLY, dealt with a similar issue. In Thompson the JCC was dealing with a claimant who injured her left knee. As in Cauvin, the claimant secured a one-time change physician of her choice for the left knee. During the treatment for the left knee the claimant mentioned pain in the right knee. A Petition for Benefits was filed requesting compensability of the right knee in June 2022, and this was mediated eleven days after the Petition was filed. During that mediation the E/C accepted compensability and the claimant agreed to an evaluation by an urgent care for the right knee, which turned into a referral to an orthopedist. The E/C named a doctor for the right knee different from who was treating the left knee. The claimant failed to attend two appointments with the new doctor, leading to the Final Hearing to determine whether the E/C can name a doctor for a symmetrical body part, even if the current authorized physician could treat both. The JCC relied on the fact that the claimant’s authorized doctor testified that the right and left knee are two separate body parts that could have different conditions and treatment plans. Further, the doctor testified that he has co-managed treatment with a doctor treating other body parts in the past, so it was not medically necessary that the claimant treat with only one doctor for both knees. Finally, the JCC determined that, although the claimant was allowed to select the one-time change doctor it “does not bestow upon her the right to direct and control the selection of physician(s) for any and all future treatment for any and all situations arising thereafter.” Even though the E/C waived their right to authorize a one-time change doctor, “it does not mean that they waived their general statutory right of control in subsequent situations.” The JCC, as in Cauvin, found no case authority requiring the claimant to treat with one doctor for both knees, nor any authority from the legislature which authorized the JCC to authorize a physician other than the one they selected.
Should you find yourself in a similar situation, feel free to reach out to one of us here at EG. There’s a good chance we can regain control of medical treatment in this scenario.
“Safety First, Then Teamwork: But Does Safety Violation Matter?”
By: Hunter Trubatch | Miami, FL
When a compensable claim is being litigated, there are several nuances and strategies that can be used to mitigate the costs of continued litigation. One way that the costs of continued benefits can be reduced is by asserting the partial affirmative defense of a safety violation committed by the claimant that has a causal relationship between the injuries sustained and the accident. This can be a very useful tool, if established, to reduce exposure related to indemnity benefits and gaining leverage over the situation to eventually move a claim to settlement and closure.
The applicable part of Florida Statute §440.02(40) reads:
“If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statue or lawfully adopted by the department, and brought prior to the accident to the employees’ knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.”
The applicable statute is relatively straight forward. If the claimant violates some sort of safety measures required by law or implemented by the specific employer, any applicable benefits can be reduced by 25 percent. However, there are some caveats: for the reduction to be valid, the safety violation must (1) have a causal relationship to the injuries sustained, and (2) have contributed the injuries sustained. A good example of a safety violation that can be used to assert the reduction of benefits is if the claimant fails to wear their seat belt during a motor vehicle accident.
With the advancement of technology, many jobs involving regular transportation now have inward facing dashcams in the vehicles to check on employees. While investigating a claim and watching these surveillance videos, make sure to pay close attention to whether the claimant is wearing their seatbelt. If the injuries sustained could have been mitigated or completely avoided by wearing a seat belt, which is required by state law, then you should have a strong argument for reducing any applicable indemnity benefits.
Another important caveat is the statute states reduction of benefits shall be reduced by 25 percent, which leaves no discretion. The reason indemnity benefits are the only type of benefits mentioned when discussing a possible reduction, is because it would be very difficult to reduce medical benefits by 25 percent. Practically speaking, how would one reduce medical benefits by 25 percent for the claimant? As such, a reduction of medical benefits is less feasible than a reduction of indemnity benefits. Indemnity benefits have a numeric value by the nature of it involving payments to the claimant. Therefore, this is the best part of the claim to practically be able to reduce what may be due or owing.
Another important thing to think about when trying to assert this reduction in benefits is whether the safety violation has a causal relationship to the injuries sustained during the industrial accident. Take for example a laborer who is using some sort of handheld machine that the employer requires and provided face protection to use while operation. If an accident occurs and the claimant injures his face in any way, there is likely a clear safety violation that could have been avoided if the necessary equipment was being used in the proper way. However, if the claimant injured his hands or arms, the causal connection is less clear. It would likely be a tougher argument to sell to the court that the claimant’s refusal to wear a face mask had a connection to him injuring his fingers and thus reducing his applicable indemnity benefits. The distinction is clear in this instance but sometimes these issues could be less clear to determine, especially involving a motor vehicle accident and subsequent injuries that could have been mitigated if a seat belt was worn. There should always be a line that can be drawn from the safety violation to the actual injuries sustained for this defense to hold up.
Asserting a safety violation is something that can be commonly used in a variety of settings including motor vehicle accidents and labor-intensive jobs. If there is any question about a safety violation, the claimant’s deposition is a good place to pin the claimant down and ask the tough questions about whether any safety equipment was provided and if they were actually using the provided safety equipment properly. A last important caveat to keep in mind is whether the employer actually enforces use of the safety equipment. If the employer provides some sort of safety equipment but does not actively enforce the use of such equipment, claimant’s counsel will certainly make the argument that the employer has acquiesced to the non-use of said equipment.
Regardless of the litigated aspect of the validity of a potential safety reduction in benefits, arguing a safety violation can be an important negotiation tool to push claims towards a final resolution and overall settlement. With the reduced rate of indemnity benefits from claimant’s typical earning capacity, any threat that these benefits will be reduced further can sway a hesitant claimant or opposing counsel to wrap the claim up in its entirety and push for overall settlement.
Chelsea England Leonard, Orlando, FL
Abby Loeffler, Jacksonville, FL
Tracie Childers, Orlando, FL