Greetings,

Temporary partial is one of the most commonly litigated benefits we see.  Our best defense is a solid light duty job offer where the claimant is making 80% of the AWW.  If the claimant refuses a light duty position, we can deny TPD as there is a voluntary limitation of income.

In a perfect world, what I like to have is a clear light duty offer letter, reciting the work restrictions and the specific light duty position, duties, hours and rate of pay.   Some employers have the claimant’s sign accepting or refusing the light duty job offer.  That makes my job easier.

If that is not possible, I recommend mailing, regular and certified, and emailing, the written job offer to the claimant and their attorney.

How often do we have to reiterate the job offer if the claimant refuses?  Well, more than once is best.  In a perfect world, every 6-8 weeks would be nice.  Also, if the restrictions change, a new letter confirming there is a job available within the new restrictions is something we would need to continue to defend.  Otherwise the claimant could allege they were justified in refusing the job from that point forward because it was outside the restrictions.

What if the claimant resigns or his terminated for job abandonment?   We have to prove that had they not quit, the light duty job would have been available all the way up until the trial (See the Carcamo case below).

Carcamo v. Business Representation International, 37 So.3 901 (Fla. 1st DCA  2010).

The 1st DCA reversed the JCC’s denial of TPD benefits. The JCC denied TPD benefits on the ground that the claimant voluntarily resigned from his employment while working light duty. The JCC had concluded that the claimant failed to meet his burden of proving a causal connection between the work-related injury and the claimed wage loss because the claimant voluntarily resigned.   The 1st DCA stated a voluntary resignation alone doesn’t support a denial of TPD. The Employer/Carrier must show continued availability of the light duty position after the claimant’s resignation for each period of time claimed for TPD.

Accordingly, to prevail on this defense, the E/C would need to obtain testimony from an Employer Representative showing that a  light duty position remained available for the entire time the claimant is  seeking TPD, and but for the resignation, the claimant would have been able to earn 80% of his AWW. 

Of course, other case law supports the notion that even after a voluntary resignation from a light duty position, a claimant can still prove entitlement to TPD by completing  an effective job search, and being unsuccessful at obtaining a position within his or her restrictions.  TPD would be denied for a period of time sufficient to constitute a job search, which could be several months, but then the claimant could typically regain entitlement to TPD.

Sincerely,
Morgan Indek | Partner