Can I Still Get Comp Benefits When I Return to Work?

Yes, if you qualify for temporary partial disability in Florida

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Florida requires most employers to provide workers' compensation coverage to their employees. Workers' comp is designed to provide both medical benefits and replacement wages to employees who are injured in the course of their employment. This includes some scenarios where an injured employee is able to return to work.

Temporary Partial Disability Benefits

There are actually several types of workers' comp benefits. For instance, if you are unable to work at all after an accident, you will receive temporary total disability benefits. But if are able to return to work under medical restrictions or are otherwise unable to earn as much as you did before the accident, you may be eligible for temporary partial disability benefits.

Under the state statutes, temporary partial disability is available to an employee who earns less than 80 percent of his or her pre-injury “average weekly wage.” The benefit itself is equal to 80 percent of the difference between what they are earning now and 80 percent of their pre-injury wage.

To put this into context, let's take the hypothetical example of a Florida woman who earned an average of $500 per week prior to suffering a workplace injury. After receiving medical care her doctor clears her to return to work but with restricted duties. As a result of these restrictions, the woman now earns only $300 per week. So how much is she entitled to from workers' compensation?

As discussed above, you start by calculating 80 percent of the pre-accident weekly wage. That is, 80 percent of $500, which is $400. Next, you calculate the difference between this amount and the post-accident wage—$400 less $300, or $100. Finally, you take 80 percent of that difference—$80—and that represents how much the employee is entitled to in replacement wages under workers' compensation.

By state law, an employee may receive temporary partial disability benefits for up to 104 weeks (or about two years). But in 2017, a Florida Supreme Court interpretation extended the benchmark to 260 weeks (nearly five years).

“That was key,” says Barry A. Stein, a workers’ comp and personal injury attorney in Miami. “With only two years, it can be a problem because you might not be better. But now, if you’re not better by five years, the reality is you’re not likely to recover the complete ability to work subsequent to that.”

The employer's workers' compensation insurance carrier must typically notify an employee of their possible eligibility for temporary partial disability benefits within five days of receiving notice that that the employee is able to return to some degree of work under medical restriction. The actual benefits are due starting seven days after the end of the employee's first biweekly period returning to work.

You May Be Entitled to Additional Help

Note that even if you are able to return to work under medical restriction, your employer is not obligated to hold your prior job open for you. However, the Family and Medical Leave Act is a federal law that applies to certain employers and guarantees up to 12 weeks of unpaid leave each year with no threat of job loss. “It has nothing to do with comp,” Stein says, “but it certainly has interplay with workers’ comp.”

You also cannot be legally fired for filing a workers' compensation claim. “It’s in violation of 44205, which says you can’t threaten, discharge or otherwise for the valid pursuit of a workers’ comp case,” Stein adds. “It’s very hard in this state for an employer to easily terminate an employee out on workers’ comp. If I’m representing an employer, I tell them never to terminate a person on their books. Just wait and see what happens when they come back.”

If you find you cannot do the same type of work you did before your injury, you may be eligible for free “reemployment services” from the Florida Division of Workers' Compensation. “One requirement is that the individual has to be able to earn more than their pre-accident wages, so the re-training has to give them the ability to make more, which can be difficult,” Stein says. “The second is, as I understand it, there’s not a whole lot of money available for these services. I used to [help clients] do this all the time, but I’ve never had anyone approved.”

These services include job counseling and retraining. If you have any questions about this or any other issue related to temporary partial disability benefits, contact a qualified Florida workers' compensation lawyer right away.

Florida

If you are unable to earn 80 percent of your previous wages following a work-related accident, Florida workers' compensation benefits can make up for some of that lost income.

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