Oct 13, 2023

Fla. Appellant Claims ‘No

Most people will be familiar with the posters at workplaces noting the number of days since a lost-time work injury.

Well, there's a dirty little secret behind that, one that helps employers avoid higher experience modifications on their workers’ compensation insurance and helps insurers avoid paying comp claims, argues an appeal of a 2022 denial of benefits to an injured welder in Florida.

The employer and insurance carrier have called that argument "absurd" and "more closely resembling the plot line from an Adam Sandler ‘goofball comedy’ movie script than anything approaching reality."

The case, Jose Pena vs. Wood Group USA and Broadspire, is now on appeal to Florida's 1st District Court of Appeals. A ruling, perhaps late this year, could affect how employers and employees handle alternative work offers for years to come. On the claimant's side is Randy Porcher of the powerhouse national injury firm Morgan & Morgan. In the defense corner is Jerry Mckim, of Wyland & Tadros in West Palm Beach.

The injury came in March 2022 when Pena, a 60-year-old welder who lived in Houston, was working a temporary job for a Florida Power & Light contractor, Wood Group USA. While climbing a ladder at the south Florida power plant site, Pena slammed his head on a scaffold bar. Although he was wearing a hard hat, the impact caused damage to his spinal cord and triggered pain and numbness in his neck and arm, according to the appeal briefs.

Pena filed a medical-only comp claim and was provided treatment at a nearby clinic. A doctor ordered work restrictions.

Rather than have the welder file for temporary partial disability indemnity benefits and send him home, the employer put him on light duty in the office – at full salary. Porcher's account claims that Wood Group had Pena doing little more than hanging out in the break room, day after day. Finally, Pena had enough, felt he could recover better at home in Texas, and left the jobsite and returned home.

The company then terminated Pena and denied his subsequent indemnity and additional medical comp claim, saying the welder had abandoned the job after suitable offer of employment.

Porcher said the practice is not uncommon, and reflects a calculated effort by some major employers. Even though workers’ compensation insurance rates, on average, have dropped steadily over the last decade in Florida and most other states, some high-risk classification employers continue to pay high premiums.

"Although each employer/carrier might have differing answers as to ‘why’ they undertake the defense, the larger employers are doing it to keep their experience mods as low as possible. The goal is no lost-time claims," Porcher said.

Comp attorneys in other states said they have seen the practice or heard about it periodically, mostly in heavy industries such as oil drilling.

"They’re called ‘no-work work jobs,'" said Larry Chaban, a claimants’ attorney in Pittsburgh.

In some cases, the employer pushes for a medical-only claim so that the workers’ comp insurance carrier will cover the treatment cost. At other times, the employer will go so far as to pay for medical treatment out of its own pocket, possibly to avoid any ding at all on the ex-mod.

"Then, they’ll fire the guy if he leaves and goes home, out of state," Chaban said.

Porcher said that he's seen a growing trend: Some employers now utilize professional employment organizations to place injured workers in light-duty, "voluntary" positions with non-profits and charities, while the employer pays their wages. That lets the worker recover while the employer avoids an indemnity comp claim and higher premiums. But it also can deprive the worker of convalescing at home, with familiar surroundings and health care providers, making it more likely the worker will walk away.

The head of ReEmployAbility, a 20-year-old return-to-work firm based in Brandon, Florida, said most businesses that engage her organization's services do not appear to have an ulterior motive.

"That's not to say that employers don't use it in a way that's not good," said CEO Debra Livingston. "But that's not our approach."

Some employers, such as trucking companies, don't often have light-duty work they can provide to injured drivers. But work at charity organizations can be beneficial to the employees, keeping them active and away from the couch while recovering. Inactivity by injured workers has been linked to greater use of medication, depression and longer recovery periods, studies have found.

Florida courts are reviewing the suitability of charity work as alternative, light-duty employment. In a recent case in northwest Florida, a judge of compensation claims found in April that a ReEmployAbility job at Goodwill Industries was not adequate because it required standing, causing pain to the claimant. The worker was justified in refusing to continue.

Mckim, the insurance attorney in the Pena case, said that the circumstances with Pena were different and that suitable jobs were offered. The Wood Group did not have Pena "doing nothing" in the breakroom for three weeks, but had assigned him to desk work and safety training. The welder was the one who declined to follow the plan and chose to sit in the breakroom much of the time, socializing with others, McKim said.

And it wasn't some grand plan to bore the worker so much that he would quit the job and return home, allowing a job-abandonment defense, Mckim said.

"The employer took no punitive action – because it could have been charged with retaliation," he said.

The offer of continued employment and the duration of that offer are key points in job-abandonment cases. Florida comp law allows the defense if an injured worker "refuses employment suitable to the capacity thereof…" The employee shall not be eligible for compensation during "the continuance of such refusal."

Porcher's appeal brief argued that the company did not offer appropriate employment, and certainly not on a continuing basis. Florida courts have held that employers must establish the continued availability of a job to sustain a job-abandonment contention.

"The employer indicated that once claimant was terminated for returning home on April 11, 2022, there was no offer of employment for claimant; hence there could be no continuing refusal," the claimant's brief reads.

Porcher also raises constitutional questions, arguing that the employer deprived Pena of his right to enjoy his own home in Texas, where Wood Group had offices and other operations with better alternative employment possibilities.

"The employer, in essence, indicated that Pena had no right to convalesce and live at home (at least not with impunity), because through section 440.15(6), the Legislature gave it the power to make such decisions for him," Porcher's brief reads. "By all appearances, the (judge of compensation claims) seemingly agreed, deciding that because claimant made this decision to return home, he did something wrong or legally punishable, resulting in the taking of property rights and compensation to which he was otherwise entitled."

Employers have been known to game the system and deliberately offer impractical alternative work options to some injured workers, in order to capitalize on the job-abandonment defense, he said. The appeal brief gave the example of a company offering only a midnight shift to a single mom with a toddler at home, knowing she couldn't manage the time slot.

"If unregulated, this can become a destructive game, creating an appearance that the individual and his family do not much matter (nor do property rights and notions of liberty or personhood), and the employer can ‘do no wrong’—so long as they have generated a piece of paper offering ’employment," Porcher argued.

Mckim's answer strongly disagreed with Porcher's assertions. He posited that the compensation judge did not err in his ruling in favor of Wood Group, denying TPD benefits to Pena after he returned to Texas.

"The appellant exhaustively airs a litany of grievances, perceived injustices and imagined limitations imposed on his personal freedoms, all the supposed product of a pernicious alchemy of corporate oppression and legislative fiat, but none of which enjoy grounding in truth or fact," the answer brief reads.

Mckim pointed out that the employer had an established policy: If a worker does not report for duty for three straight days, the employee is deemed to have abandoned the job. Pena voluntarily chose to jeopardize his comp claim by truncating his involvement with the Florida job, the defense brief notes.

The claimant's side noted that returning to Houston was important for the worker, partly because the authorized neurosurgeon there found a cervical spinal injury from the accident, which had not been diagnosed by the Florida clinic.

It could be months before the 1st District Court of Appeals, the only one of Florida's six appeal courts that handles workers’ comp cases, may decide on the case, attorneys said.

Top photo courtesy of Accuform.

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