Section 440.15(4)(a), provides that a claimant is entitled to TPD if he/she demonstrates a causal connection between the compensable workplace accident and subsequent wage loss by proof of physical restrictions that prohibit the injured employee from performing all or his/her job duties.    Nevertheless, under Section 440.15(6) if a claimant refuses employment, he/she will be barred from receiving compensation during the continuance of such refusal unless the the Judge determines that the refusal is justifiable.

Does that mean that if the employer offers a light duty job to the claimant within his/her limitations that such is sufficient to prevail?  Probably not.  The First District Court of Appeal in a recent Opinion in the case of Clarence Hawkins v. Publix Supermarkets, Inc., Case No. 1D14-5420 (November 12, 2015), reiterated that an employer must establish the continued availability of the job for each applicable period in order to retain the benefit of the affirmative defense based on refusal of suitable employment.  What must an employer do?  The best way is to send claimant every two weeks a letter with a light duty job offer.  In the alternative at a minimum, testimony must be introduced that claimant was told about a light duty job and that such job was open.  The problem with later option is that you get into a war of credibility.  Best thing is put job offer in writing and keep sending letter offering light duty employment.

The decision is not final until the 15 days for Motion for Rehearing expire.


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