Cases

The common law concept of sheltered employment in determining entitlement to temporary partial disability benefits does not apply. This concept also does not apply to the forfeiture of benefits under the defense found in Section 440.15(6), Florida Statutes, which denies benefits to injured workers if offered employment by the employer within the claimant’s limitations is refused by the claimant. The determination of whether a particular job is considered "sheltered employment" is factual in nature and thus subject to the competent substantial evidence standard for review.

The sheltered employment doctrine applies to permanent and total disability litigation where an employer creates a job for an employee merely as a litigation tactic to deny a permanent total claim. Reasonable job modifications for the purpose of accommodating an injured or partially disabled employee does not make the job sheltered employment. Federal law now requires employers to make reasonable accommodations for their disabled employees.

In regards to temporary partial benefits, wages earned in sheltered employment are considered in determining benefits due in accordance with Section 440.15(4)(a), Florida Statutes (2007). If a temporary offer of employment is perceived to be the result of gamesmanship on the part of the employer, Section 440.15(6), Florida Statutes, allows a JCC to excuse an injured worker from accepting such an offer if the JCC finds the job unsuitable or finds justification in the worker’s stated reason for refusing the job. Accordingly, there is a full remedy for a worker who is offered temporary employment which is borne of bad faith or gamesmanship on the part of the employer. The appropriateness of an offer of modified employment should be evaluated in accordance with the standards set forth in Section 440.15(6), Florida Statutes.

The denial of benefits based on the claimant’s refusal to accept offered employment is an affirmative defense. This statutory defense establishes the clear intent of the Legislature to strongly encourage injured workers to return to work if capable. The method of encouragement chosen by the Legislature was to deny all compensation when the claimant refuses suitable employment. The suitability of the offered employment and the reasonableness of the justifications for refusing the offered job are issues of fact which will not be disturbed in the presence of competent and substantial evidence supporting such findings.

The denial of benefits based on the affirmative defense of refusing offered employment applies only during the continuance of the refusal. Although an employer is not required to continually re-offer a job to avail itself of this statutory defense, the employer must establish the continued availability of the job for each applicable period to obtain the continued benefit of this defense. In this case, the employer had terminated the claimant and up to the date of termination, the employer was able to show that the offered job was available. The employee/claimant in this case had refused to come back to work until he had completed the physical therapy treatments recommended by the authorized doctor. From the date of termination up to the time that the claimant refused to come back to work, competent and substantial evidence supported the denial of temporary partial benefits. After the period that the claimant refused to come back to work, case remanded to determine if the employer had available employment for the claimant.