In Florida, Unemployment benefits are an offset to any TPD owed and a bar to TTD. More than 1.2 million Floridians have filed for Unemployment since March 15. That is a staggering number.
And what is worse, I am sure many of you have heard of the inability of the Unemployment website and the DEO to handle the volume. Per the numbers released this weekend, 800,000 applications for Unemployment have been processed and nearly 500,000 have been paid. That means 1/3rd haven’t even been processed yet.
Historically in Florida, Unemployment has not paid retroactive benefits, only from the point the application was approved moving forward. That has changed during this crisis.
“They’re going to receive those benefits for the time they were unemployed through when their eligibility runs out. That is a guarantee,” said Florida Department of Management Services Secretary, John Satter who is currently leading the DEO.
The Department of Economic Opportunity was not able to give a clear timeline of when retroactive payments will be paid out in full. The state level benefits ($275 a week max) are retroactive back to March 9 and federal benefits (additional $600 so $875 total max) are retroactive to March 29.
We have never had to deal with a retroactive payment of Unemployment in Fla. It is settled law that we can not take a retroactive offset on Social Security Disability benefits, but the issue of retroactive offsets on Unemployment has never been addressed.
I would argue that based on the statutory language in 440.15(10) below, we would be able to take the offset retroactively, specifically under (b) regarding TPD as it uses the word “entitled” to unemployment compensation, not receiving. This will likely create an offset moving forward along with a possible overpayment where we can withhold 20% of future benefits until it is recouped.
440.15 (10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE REEMPLOYMENT ASSISTANCE.—
(a) No compensation benefits shall be payable for temporary total disability or permanent total disability under this chapter for any week in which the injured employee has received, or is receiving, reemployment assistance or unemployment compensation benefits.
(b) If an employee is entitled to temporary partial benefits pursuant to subsection (4) and reemployment assistance or unemployment compensation benefits, such reemployment assistance or unemployment compensation benefits shall be primary and the temporary partial benefits shall be supplemental only, the sum of the two benefits not to exceed the amount of temporary partial benefits which would otherwise be payable.
The problem now comes in as to how do we discover the claimant is receiving Unemployment or gets a retroactive payment? I think we should take two steps on any of these where there is a question:
- Send the claimant DWC-19 Employee Earning Reports for March, April, May and even June (to capture the retroactive payments)
- Send the claimant (if it has been more than 6 months) a Unemployment DEO release and request the actual records to confirm.
As always, stay safe and let me know if you have any questions. We are always available to cover this and other TPD issues in a webinar for your company.
Morgan Indek | Managing Partner