Jeffrey P. Gale, P.A. // Workers’ Compensation Temporary Partial Disability Benefits Following Relocation

Per section 440.15(4), Florida Statues, Temporary Partial Disability (TPD) benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” Does this provision allow an injured worker who has left a job to relocate to a different city or state, to receive TPD? The answer depends on the motivation of the worker for leaving the job.

In Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003), the Claimant left a modified duty job following an industrial accident and relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” (His wife confirmed this testimony.) While in Pensacola he tried without success, due to his industrial injuries, to maintain a job. Two months later he returned to the job he had left. He also filed a claim for workers’ compensation TPD benefits for the period of time he was in Pensacola.

The workers’ compensation carrier denied the claim for TPD, contending that Claimant voluntarily limited his income. The Judge of Compensation Claims (JCC) agreed, finding that Claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to.” Claimant appealed the JCC’s decision.

The Florida First District Court of Appeal reversed, agreeing with the Claimant that the JCC erred by failing to find that his relocation to Pensacola was the product of an improper motivation on his part. The court pointed to Hurley v. Stuart Fine Foods, 687 So.2d 310, 310-11 (Fla. 1st DCA 1997), where the Claimant moved in with her parents in a different Florida city for financial reasons. The JCC ruled against her, but was reversed on appeal where it was determined that the JCC made no finding that the Claimant’s move was the result of “`improper motivation'” and that “`there [was] no evidence that claimant’s relocation following h[er] injury was motivated by a desire to avoid work.'” Id. at 311 (quoting Genelus v. Boran, Craig, Schreck Constr. Co., 438 So.2d 964, 966 (Fla. 1st DCA 1983)); see also Dep’t of Transp. v. Montero, 568 So.2d 65, 65 (Fla. 1st DCA 1990) (holding that an injured worker is not confined to living in the pre-injury location and that, absent an improper motivation, a departure therefrom does not preclude compensation benefits).

TPD is an indemnity (monetary) benefit payable to injured workers experiencing a qualifying wage loss who are under doctor’s care with work restrictions. It is called “temporary” (as opposed to “permanent”) because it comes during the period of time before maximum medical improvement is reached. (See the definition of maximum medical improvement (MMI) at section 440.02(10), Florida Statutes). In every TPD case, it is the Claimant’s burden to demonstrate all of these elements. It is not enough, for example, that the Claimant is actively treating and has not yet reached MMI, if he or she cannot also show work restrictions. While there is case law allowing JCCs to award TPD without evidence of doctor-imposed work restrictions, it is advisable to support the claim with medical evidence. And while a job search is not technically required, the best advice is to present evidence of an unsuccessful job search.