Greetings,  I certainly hope everyone made it through both Helene and Milton safely.  Enough already with the hurricanes.

I have been getting a lot of questions about the impact of the storms on certain benefits, so I thought I would share.  Of course each situation is unique, and you would have to balance litigation costs in the decision making process.

TPD benefits if the employer closed for the storms:

• If the ER was NOT accommodating light duty prior to the storms, you still owe TPD because the accident remains the MCC of the loss of earnings

• If the ER was fully accommodating light duty and the claimant was earning 80% of the AWW but did not that week because of the closure, arguably you would not owe TPD because the accident was not the MCC of the loss of earnings.

• If the ER was accommodating light duty but not at 80% prior to the storm, you would still owe the TPD you normally pay but you can deem the earnings as if the ER had been open.

TPD benefits if the employer  was open but the claimant did not show for light duty because of the storms:

• Arguably if the ER was open, and the claimant did not attend you may not owe TPD if they fell below 80% because the accident was not the MCC.

• If they could not physically get to work for a few days because of road closures, loss of vehicles, etc…a JCC may be sympathetic to the claimant.  This is a balance of the risk of litigation.  If it’s a continuing ongoing refusal of light duty after the storms because of transportation issues however, a denial may be warranted.

• If they did not attend because of a mandatory evacuation, same thing I would argue. Reasonable for a few days, but if it is a longer impact you could deny unless they permanently move.

• If the ER did not offer light duty during the storms, but was open for business, you may owe TPD.

Impairment benefits

• The WC statute allows you to reduce impairment benefits in half for any week the claimant has returned to work (for any employer)  and earned at least their AWW or more.  The case law states this is just pure math, no voluntary limitation of income argument.  So, if your claimant missed work because of the storms, you would have to pay the full impairment benefit for that week regardless of why.

Medical Noncompliance

• If a claimant is medically noncompliant, you can suspend indemnity until they go for medically treatment. The case on the issue is Lobnitz, and it states the claimant must miss two or more appointments without a reasonable excuse.  Missing any appointments during, immediately before or after the storm of course is reasonable.   However, if they relocated or lost a vehicle, offer transportation to the appointments moving forward.

As always, let me know if you have any questions.

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Sincerely,

Morgan Indek | Managing Partner