Claimant Need Not Prove Injury Caused Wage Loss to Earn Max IIBs

Tuesday, March 2, 2010 | 0

By Michael Rabinowitz

Here is an interesting decision regarding the relatively overlooked payment of impairment income benefits (IIBs).  In Seminole County v. Baumgardner, Claimant missed work during the period he was entitled to IIBs.  He failed to earn under 100% of his pre-injury average weekly wage, so under section 440.15(3)(c) the E/C only paid him 50% of his average weekly wage (AWW) in IIB’s.

It was the employer/carrier's position that the reduction of his wages during that period was not related to the accident.  Claimant objected on the grounds that it didn’t matter if reduced wages are related  to the accident or not.  In his view, the statute makes no difference between lost wages based on compensable injuries and lost wages based on anything but compensable injuries.

And, in the end, the 1st District Court of Appeal agreed.

To be honest, everyone knows that the Legislature wrote Section 440.15(3)(c) to compensate for the alot of the gutting of Chapter 440.  The Legislature increased the IIB’s to 75% provided Claimant is not earning his full AWW.  Many thought this 2003 change would act in similar fashion to the old pre-1994 wage loss claims, where Claimant’s could earn up to 10 years of wage loss benefits if their compensable condition was the cause of their AWW to drop.

I know that most adjusters when cutting checks for IIB’s will send the Employee Earnings Report (Form DWC-19) to Claimants to discover if they are earning their full AWW.  Some will even inquire if the reason for the drop in wages is related to the accident.  What Baumgardner says is that neither inquiry is necessary or relevant.  All section 440.15(3)(c) requires is that Claimant is not earning 100% of his AWW.  That’s it.  In many ways, this case emasculates the s. 440.15(3)(c), in that Claimant’s can earn the 75% regardless of how or why their wages dipped below the AWW.

While this may not be in the "spirit of Chapter 440" where a Claimant must prove some causality to wage loss (TPD, major contributing cause), it is similar to the current state of PTD law, where outside vocational factors, not associate with the compensable accident, can help determine a Claimant’s entitlement to PTD.  Interesting rationale, indeed.

WorkCompCentral subscribers may access the opinion by clicking the case title in the sidebar.

Michael Rabinowitz is a workers' compensation defense attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, Workers' Comp Corner, which can be found here: http://workerscompblog.wordpress.com/