Greetings,

Several times a year the question comes up about when the 7 day waiting period for indemnity under 440.12 (1) actually starts.   Do you count days the claimant is back at work earning 80% of their AWW as days toward the waiting period even if there is no indemnity being paid?

I am not aware of case or JCC decision that addresses this issue. 

A strict reading of the statute seems to indicate that you would count those days, but in practice most adjusters and carriers do not count those days.  

The waiting period is the “first 7 days of the disability.”  And “Disability” is defined as incapacity to earn the wages you were earning at the time of the injury, basically the AWW.   So a strict reading indicates if you are working and earning less than your AWW because of your injury, those days would count……

440.12 (1) Compensation is not allowed for the first 7 days of the disability, except for benefits provided under s. 440.13. However, if the injury results in more than 21 days of disability, compensation is allowed from the commencement of the disability.

440.02 (13) “Disability” means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.

I have had several claimant’s attorneys argue the strict reading of the statute over the years, but due to the constraints on their fees, it was never litigated.  That may change.

My advice is if it’s the policy that these days do not count, maintain that position. However if the issue gets litigated, take a practical approach to this, a few days TPD is much cheaper than hourly attorney fees.   And when you get a PFB seeking indemnity, always go back and check that the waiting period was met and paid for after 21 days.

Important reminder, the 7 days does not need to be consecutive.   Watch out for the work status from the hospital for the initial visit.   Often they are given 3 days out of work by the ER, make sure to count those in your eventual 7.

As always let me know if you have any questions.

Sincerely,
Morgan Indek | Partner