Who has the burden of proof the claimant is voluntarily limiting his/her income while on light duty and receiving temporary partial benefits – the carrier or the claimant?

On July 7, 2010, the 1st District Court of Appeal of Florida set the record straight in the case of Wyeth v. Toscano.  The claimant does not have the burden of proof for loss of earning capacity.  The claimant is only required to show that the injury caused a loss of income, i.e. physical restrictions from the injury prevent return to work.  This case involved a pharmaceutical employer who had a layoff of sales representatives.  Since the claimant, Vivian Toscano, worked as a sales rep when she was injured on the job, she had no job to return to after being released to light duty.  Without a job to return to and no job search requirement to receive benefits, the court pointed out that temporary partial disability benefits must be paid unless the carrier can prove the claimant was voluntarily limiting her income.  The claimant’s failure to look for work or perform even an inadequate job search does not substantiate she voluntarily limited her income.  The court’s opinion indicated proving a claimant is voluntarily limiting their income is usually established when a reasonable job offer is made and refused.

If an employer has no job to offer, as in this case, the court requires the carrier to prove the loss of earning capacity is not caused by the injury but some other reason, i.e. misconduct, or left employment “without just cause”.  If an employee is not required to perform a job search to receive temporary total benefits, a carrier could provide vocational assistance and job placement services to aid the employee in locating viable employment within their restrictions.  If the employer is not able to accommodate temporary restrictions but is retaining a job once full recovery or release is achieved, then utilizing a temporary non-profit assignment is a great option to combating the disability mindset and promotes physical conditioning until final release.  Helping the employee return to productive employment sooner reduces the amount of temporary total disability benefits and in most cases, the length of permanent benefits – a scenario that benefits the employee, the employer and the carrier.