Does termination from employment prevent an employer from arguing voluntary limitation of income with regard to temporary partial disability benefits?

Temporary partial disability benefits are payable to an injured employee if he has not reached overall maximum medical improvement and the medical condition creates restrictions on his ability to work. Here, the employer did not dispute the Judge of Compensation Claims’ finding that the claimant met his prima facie burden of proving entitlement to temporary partial disability benefits; however, they argued that the judge erred as a matter of law when she rejected the affirmative defense of a voluntary limitation of income after the claimant’s termination date.

The First District Court of Appeals held In Moore v. Servicemaster Commercial Servs., 19 So. 3d 1147 (Fla. 1^st DCA 2009), that an employer is not required to “continually re-offer a job to avail itself of this statutory defense.” But at the same time, the court emphasized that the employer must, nonetheless, “establish the continued availability of the job for each applicable period to obtain the continued benefits of the defense.” When an injured employee’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? The DCA said that the Judge of Compensation Claims’ finding that the employer was not likely to offer light-duty work after his release to full duty on August 21^st was speculative based on the record and, even if supported by the evidence, would not explain an award beginning August 17^th. The DCA reversed and remanded for reconsideration with findings addressing the: (1) continued availability of suitable employment; (2) claimant’s continued refusal of such suitable employment; and (3) justification for continued refusal. 

_{Case Law Alerts, 4th Quarter, October 2019}

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