Burden of Proof for Temporary Partial Disability Benefits

Posted in Legal Alerts on May 10, 2021

Where a claimant has work restrictions and no earnings, she only needs to prove a causal connection between the injury and the loss of income.  Specifically, a claimant can meet her prima facie entitlement to TPD benefits by demonstrating that she is unable to successfully perform the tasks of her pre-injury job which directly resulted in a cessation of the performance of that employment and a reduction of her income below 80% of her AWW.  See Wyeth/Phama Field Sales v. Toscano, 40 So.3d 795 (Fla. 1st DCA 2010).  The court has laid out a three part test; the claimant needs only to show (1) that she is not a maximum medical improvement, (2) that she has restrictions which prohibit her pre-injury employment and (3) that she has a reduction of income below 80% of her AWW.

Once a claimant establishes her prima facie entitlement to TPD benefits, the burden shifts to the employer/carrier to prove that during the period in which the benefits are claimed, the claimant refused work or voluntarily limited her income.  The Court explained that the affirmative defenses to payment of TPD benefits are limited to unjustifiably refusing suitable employment offered or procured for her and termination from post-injury employment for “misconduct.” Id.

It is important to note that simply being terminated for “cause” or for reasons unrelated to the injury does not excuse paying TPD benefits.  Rather, the employer/carrier must establish that termination was for “misconduct” which is defined as (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.

When making the decision to pay or not pay TPD benefits, the specific facts of your case need to be considered.  Our attorneys can provide specific recommendations on your case.