As businesses start to reopen and claimants start to return to their light duty or modified positions, I foresee some issues we will have to deal with from a WC perspective. As always I recommend any light duty offers be in writing. Even if there was a prior offer of light duty, reiterating a return to work light duty now should also be in writing.
- Refusal to return to work for “safety concerns”- A Judge will look at any refusal to work light duty under a reasonableness standard. Are there legitimate safety concerns, or is the employer following the CDC, state and local guidelines? If the ER is following the guidelines for safety, I would argue it is not a reasonable refusal of LD, and TPD should be denied. If the claimant personally chooses to not work because of their own views/perspective on COVID-19, I do not think you would owe TPD.
- Pre-existing conditions keeping them out of work- If the only reason they are refusing LD is because they have a “serious underlying medical condition” as defined by the State, I think you may be able to deny TPD as the accident is not the major contributing cause of the loss of earnings. Florida lists chronic lung disease, moderate-to-severe asthma, serious heart conditions, immune-compromised status, cancer, diabetes, severe obesity, renal failure and liver disease as serious underlying medical conditions. If LD is available and the claimant refuses for a personal condition, arguably TPD can be denied.
- Unemployment is more lucrative- At least until 7/31 at this point, unemployment is a max of $875 in Florida. If LD is offered and the claimant refuses for this reason, document it.
- Deemed earnings- make sure the light duty offer covers 80% of the pre-accident AWW, or else you can only deem the earnings of what the claimant refused, and you must pay the balance in TPD.
A DCW-12 denial of LD should be issued. These are just a few of the situations I can see having to face in the coming weeks. Feel free to call or email me with any questions.
Morgan Indek | Managing Partner