Cases

JCC denied temporary partial benefits to the claimant.  JCC's finding in regards to a claim for TPD benefits are reviewed for competent substantial evidence. Whether the JCC used the correct legal standard is reviewed de novo.

The claimant returned to work after a compensable accident.  He thereafter stopped work in order to attend to matters relating to his father's death.  When he returned to work, the job that he was performing was no longer available.  The employer/carrier denied temporary partial disability benefits based on the defense of voluntary limitations of income.

Although the defense of voluntary limitation of income was removed from the workers' compensation law, in considering Section 440.15(4)(a), F.S., the court has likened this defense to proving what an injured worker "is able to earn post-injury."  In addition, this defense has been analygized to the statutory defense of refusal of suitable employment found in Section 440.15(6), Florida Statutes, in ruling that although there is no legal requirement to continue offering jobs to an employee, there must be a showing of continued availability of a job for each period in which temporary partial benefits are claimed.

In this case, the JCC made no findings as to whether a job was available to the claimant when he returned to a job that he was working post-accident.  The employer/carrier argued that the "tipsy coachman rule" would apply in denying benefits to the claimant.  However, this doctrine cannot be utilized when the JCC did not make any factual findings on that issue.  The JCC failed to use correct legal standards in evaluating the claimant's claim for TPD benefits.  If the claimant  left his employment post-accident "without just cause" then TPD benefits would be payable based on deemed earnings just as if the claimant had remained employed.