Claimant can Get a $2,000 Advance Even if E/C may Never Recoup
Monday, November 8, 2010 | 0
By Michael Rabinowitz
Banker Lopez Gassler
A common misconception in Chapter 440 of Florida statutes is that, per Section 440.20(12)(c), a claimant cannot get a $2,000 advance from the employer/carrier if the claimant cannot pay the E/C back. For example, many E/C’s would refuse to give a $2,000 advance to a claimant who was at maximum medical improvement. The reasoning being that claimant is no longer eligible for indemnity benefits, so the E/C cannot recoup the advance from future 20% deductions in indemnity payments, per s. 440.15(12).
Chalk this up to one of the unanswered scenarios that the Legislature never resolved, but if a claimant can prove the one of the three factors of 440.20(12)(c), she can get a $2,000 advance even with the possibility that an E/C may never recoup the advance.
In Lopez v. Allied Aerofoam, claimant sought a $2,000 advance although the claim was currently contested. The E/C argued that claimant should not be entitled to an advance since this was a contested claim. If the E/C won, then they would never be able to recoup the advance. The judge agreed with the E/C. Ultimately, the 1st District Court of Appeal reversed.
The problem was that the lower court found that claimant met the standard for an advance of up to $2,000. Section 440.20(12)(c) requires claimant to prove one of the following:
1. Claimant has not returned to the same or equivalent employment with no substantial reduction in wages; OR
2. Suffered a substantial loss of earning capacity; OR
3. Suffered a physical impairment, actual or apparent.
Once claimant proves one of these elements, she is entitled to the advance. Nowhere in the Statute does it require proof that the claimant will actually recieve indemnity benefits so she can pay back the E/C.
You see, the 1st DCA already made this same ruling more than 10 years ago. The reasoning today is that if the Legislature wanted the lower courts to consider claimant’s ability to repay the advance, the governing body has had more than a decade to amend the statute. (We all know they substantially changed the statute in 2003 and the Legislature said nothing of the $2,000 advance provision.)
In the end, it is just not worth it to fight these requests for advance. Even if you have a total denied claim, if claimant can prove one of the three factors then she will get the advance. It is not noted in the statute but perhaps if the E/C wins the denial at trial then they could recoup afterward through a Motion for Reimbursement? Such language is not in the Statute, but I wonder what the 1st DCA would say.
If nothing, then lets at least hope the Legislature provides us with a resolution to the advance paradox.
WorkCompCentral subscribers may download the 1st DCA decision by clicking on the case title in the sidebar.
Michael Rabinowitz is an attorney with the workers' compensation defense firm of Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/
Banker Lopez Gassler
A common misconception in Chapter 440 of Florida statutes is that, per Section 440.20(12)(c), a claimant cannot get a $2,000 advance from the employer/carrier if the claimant cannot pay the E/C back. For example, many E/C’s would refuse to give a $2,000 advance to a claimant who was at maximum medical improvement. The reasoning being that claimant is no longer eligible for indemnity benefits, so the E/C cannot recoup the advance from future 20% deductions in indemnity payments, per s. 440.15(12).
Chalk this up to one of the unanswered scenarios that the Legislature never resolved, but if a claimant can prove the one of the three factors of 440.20(12)(c), she can get a $2,000 advance even with the possibility that an E/C may never recoup the advance.
In Lopez v. Allied Aerofoam, claimant sought a $2,000 advance although the claim was currently contested. The E/C argued that claimant should not be entitled to an advance since this was a contested claim. If the E/C won, then they would never be able to recoup the advance. The judge agreed with the E/C. Ultimately, the 1st District Court of Appeal reversed.
The problem was that the lower court found that claimant met the standard for an advance of up to $2,000. Section 440.20(12)(c) requires claimant to prove one of the following:
1. Claimant has not returned to the same or equivalent employment with no substantial reduction in wages; OR
2. Suffered a substantial loss of earning capacity; OR
3. Suffered a physical impairment, actual or apparent.
Once claimant proves one of these elements, she is entitled to the advance. Nowhere in the Statute does it require proof that the claimant will actually recieve indemnity benefits so she can pay back the E/C.
You see, the 1st DCA already made this same ruling more than 10 years ago. The reasoning today is that if the Legislature wanted the lower courts to consider claimant’s ability to repay the advance, the governing body has had more than a decade to amend the statute. (We all know they substantially changed the statute in 2003 and the Legislature said nothing of the $2,000 advance provision.)
In the end, it is just not worth it to fight these requests for advance. Even if you have a total denied claim, if claimant can prove one of the three factors then she will get the advance. It is not noted in the statute but perhaps if the E/C wins the denial at trial then they could recoup afterward through a Motion for Reimbursement? Such language is not in the Statute, but I wonder what the 1st DCA would say.
If nothing, then lets at least hope the Legislature provides us with a resolution to the advance paradox.
WorkCompCentral subscribers may download the 1st DCA decision by clicking on the case title in the sidebar.
Michael Rabinowitz is an attorney with the workers' compensation defense firm of Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/
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