By: Lori Bethea, Associate, Tallahassee 

Imagine that while reviewing a request for payment of TT benefits in a case that was denied, but has just been deemed compensable, you discover that, during the time in question, the claimant was off work due to his injury and was paid full wages by the Employer through his sick leave account. However, now that the case has been picked up as compensable, the claimant wants his sick leave hours back, plus penalties and interest on the “back” indemnity benefits and the claimant’s attorney wants an attorney’s fee. Is the claimant entitled to a credit for his leave and/or does the carrier owe benefits for the period in which he received full wages through sick leave?

This scenario was recently addressed in a PCA opinion following a decision by Judge Lazzara in the case of Rodriguez v. Tallahassee Fire Department/City of Tallahassee, (Case No. 1D15-1201, OJCC No. 14-016085). In Rodriguez, the claimant’s cardiovascular condition was picked up as compensable after he had undergone surgical intervention and been out of work for a period of time, during which time his full wages were paid from his sick leave account. Following acceptance of the claim, the claimant’s sick leave account was credited for the time he had used and the employer was reimbursed. Nevertheless, the claimant filed a petition for the TTD benefits as well as penalties, interest and attorney’s fees. The JCC denied the claim for TTD benefits as the claimant had been paid full wages, and suffered no economic loss during the periods in question. The claimant’s attorney argued that penalties and interest were due as the carrier had not “initiated payment” of TTD benefits per the statute. However, the JCC found the argument to be without merit as the claimant had been paid full wages during all relevant dates of disability. The JCC also rejected claimant’s argument that penalties and interest should be determined based on the date the carrier reimburses the employer for the full wages paid. Since there is no statutory requirement as to when reimbursement has to be remitted to the employer, no penalties and interest would be due.   The JCC did reserve on the issue of attorney’s fees to hear arguments on whether or not, but for the filing of the petition for benefits, the claimant’s sick leave reimbursement would have occurred.

A claimant cannot be required to exhaust his sick leave during a period in which he would have otherwise been entitled to temporary total disability benefits. These situations most often arise when compensability is initially denied, the claimant cannot work, takes sick leave to continue receiving wages, and the accident/injury is later picked up by the employer/carrier. Pursuant to Section 440.20(14), when the employer pays full wages for any period of disability, and the case is contested but later deemed compensable, the employer is entitled to be reimbursed by the carrier for the amount that would have been due under workers’ compensation.   Of course, if the employer paid full wages, the claimant received more than he would have received under workers’ compensation. Since the statute only provides for reimbursement in the amount of benefits that would have been due, is the employer entitled to any sort of offset for the difference? Unfortunately, no. The statute further states that anything paid by the employer over and above the compensation amount, shall be considered a gratuity.   This may sound harsh, but on a positive note, if sick leave had not been paid during the denial period, the employer/carrier would have to pay back benefits, as well as penalties and interest.