By: Abby L. Loeffler, Associate, Jacksonville

Generally, temporary partial disability (TPD) benefits are payable to a claimant if the claimant has not reached overall maximum medical improvement from the injury and the medical conditions resulting from the injury create restrictions on the claimant’s ability to work. To establish entitlement to TPD benefits, the claimant must demonstrate a causal connection between loss of employment at the pre-injury wages and the workplace injury. Thereafter, the burden shifts to the employer/carrier to establish a superseding or intervening cause of the wage loss, such as voluntary limitation of income or deemed earnings. Thus, TPD benefits may be denied, under certain circumstances, even if the claimant has been terminated.

Misconduct

TPD benefits are not payable if a claimant is terminated from post-accident employment for misconduct. § 440.15(4)(e), Fla. Stat. The employer has the burden of proving misconduct. “Misconduct” is statutory term, and it includes, but is not limited to:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

§ 440.02(18), Fla. Stat. The employer must show more than the claimant’s “inefficiency, unsatisfactory conduct, or failure to perform in the workplace.” See Doyle v. Unemp’t Appeals Comm’n, 635 So. 2d 1028, 1031 (Fla. 2d DCA 1994). In fact, most terminations do not rise to the level of misconduct under section 440.15(4)(e), Florida Statutes.

Accordingly, “good cause” does not equal “misconduct.” See Thorkelson v. NY Pizza & Pasta, Inc., 956 So. 2d 542, 543 (Fla. 1st DCA 2007) (affirming application of paragraph 440.15(4)(e) with evidence of termination for misconduct because “[c]learly a claimant is not disqualified from workers’ compensation benefits just because she ‘was terminated . . . for cause”). For example, in Thomas Gable v. Allegis Group and ESIS WC Claims, OJCC No. 17-000708, a claimant was terminated for insubordination, telling inappropriate jokes that were “sexually suggestive and included profanity,,” and showing his underwear to coworkers. The JCC determined that the claimant acted inappropriately and was terminated “for cause.” Nevertheless, the JCC granted TPD benefits because the claimant’s conduct did not constitute “misconduct.” The court reasoned that “[a]lthough Claimant’s conduct amounted to good cause for termination of his employment. . . , it does not meet the more stringent standard of “misconduct” as that term is used in section 440.15(4)(e), Florida Statutes.” The JCC noted that the claimant was never issued a written reprimand for his behavior which “suggest[ed] the Claimant’s behavior was not considered a serious problem until the day he showed his underwear.”

So where does that leave the employer/carrier? Do they have to pay a claimant fired for “no call no shows,” insubordination, tardiness, slackness, or just being a bad employee? The answer is “maybe.”

Voluntary Limitation of Income

When a claimant is terminated from employment for insubordination, the claimant may still be entitled to TPD benefits. First, the claimant must demonstrate that the injury contributed to the wage loss after the termination. See Betancourt v. Sears Roebuck & Co., 693 So. 2d 680 (Fla 1st DCA 1997) (holding that benefits are not precluded simply because some part of the wage loss is attributable to a reason unrelated to the injury, such as economic factor, seasonal layoff, or discharge for good cause). A job search is no longer an absolute requirement for temporary partial disability benefits. However, a claimant may establish a casual relationship between his or her compensable injuries and temporary partial wage loss through a good faith job search.

Once a causal relationship is shown by the claimant between the injuries and the wage loss, the burden shifts to the employer/carrier to prove that the claimant refused to work or voluntarily limited his or her income during the period in which TPD benefits are claimed. To maintain a defense of voluntary limitation of income by the claimant refusing suitable employment, the employer/carrier must establish that the job remained available for each indemnity period. This does not mean that an employer is required to continually reoffer a job to a claimant after he or she is terminated. Moore v. Servicemaster Commerc. Servs., 19 So. 3d 1147, 1152 (Fla. 1st DCA 2009). Rather, when a claimant’s employment is terminated, a three-part inquiry applies: “(1) did the employer establish the continued availability of suitable employment after termination; (2) did the injured employee continue to refuse suitable employment after termination; and (3) was the refusal justified?” See MJM Electric, Inc. v. Spencer, 275 So. 3d 1283, 1288 (Fla. 1st DCA 2019) (rejecting the JCC’s assumption that the employer/carrier was required to make repeated offers of suitable employment because “it [was] simply not certain whether the JCC based her ruling on more than the lack of continuous offers of employment after the date of termination”).

Deemed Earnings

If a claimant leaves employment with the employer while receiving TPD benefits without just cause as determined by the JCC, TPD benefits are payable based upon the deemed earnings of the claimant as if he or she had remained employed there. 440.15(7), Fla. Stat. Deemed earnings are wages injured workers could have earned if they had accepted a suitable job offer. If a claimant is denied TPD benefits due to an unjustified refusal of suitable employment, the period for which benefits which were denied count in the 260-week limitation on payment of temporary indemnity benefits. 440.15(6), Fla. Stat.

In sum, simply showing up at trial with evidence that the claimant was a bad employee is not, in most cases, sufficient to deny TPD benefits. Whether a claimant is entitled to TPD benefits after termination is a fact-specific determination and must be decided on a case-by-case basis.