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Missed Wages and Misconduct

Missed Wages and Misconduct Under Workers' Comp Law, Florida

Under Florida Workers’ Compensation laws, an injured employee is essentially entitled to two types of benefits. Medical benefits at no costs to the injured worker and indemnity, or missed wage, benefits. Indemnity is further broken down into two classifications. Temporary Total Disability, or TTD, where an authorized physician has the injured worker on a “no work” status, and Temporary Partial Disability, or TPD, where an authorized physician has an injured worker on a “light duty” work status with various work restrictions, such as “no lifting over 10 pounds.” There are various criteria that need to be met in order for an injured worker to be eligible for those TPD benefits. One example is that the employer does not have work available within the doctor’s restrictions, or does have work available within the doctor’s restrictions but that the light duty work being offered causes the injured worker to earn less than 80% of her pre-injury wages. At times, an injured employee will be under work restrictions from an authorized physician and will lose their job, for a variety of reasons. If the injured employee is on a no work status, losing the job, regardless of reason, will not have an effect on entitlement to TTD benefits. However, if an injured employee is receiving Temporary Partial Disability, and is terminated, the reason for the termination can have a direct impact on the employee’s entitlement to those benefits.

Florida Statute § 440.15(4)(e) states that “if the employee is terminated from post injury employment based on the employee’s misconduct, benefits are not payable…” Under section 440.02(18) the Florida legislature goes further to explain what misconduct includes. The term misconduct includes, but is not limited to: “conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.” Misconduct is an affirmative defense and the Employer/Carrier has the burden of proving misconduct sufficient to disqualify an employee from receiving benefits. Krysiak v. City of Kissimmee, 289 So. 3d 948 (Fla. 1st DCA 2020).

Generally, a single isolated instance of failing to follow an employer’s policy will not be treated as “misconduct” for workers’ compensation purposes. Ash v. Fla. Unemp’t Appeals Comm’n, 872 So. 2d 400, 402 (Fla. 1st DCA 2004). The Court in Ash, went further to explain that while a single violation of an employer’s policy may constitute misconduct, typically repeated violations of explicit policies after several warnings are what is required. See also, Barchoff v. Shells of St. Pete Beach, Inc., 787 So. 2d 935 (Fla. 1st DCA 2001).

What does that all mean? The definitions are very vague and warrant a case-by-case analysis. Essentially, if you or a loved one have been injured on the job, are under the care of an authorized physician who has placed light-duty work restrictions upon you, and you are terminated, the insurance company will have to prove that it was in fact due to misconduct in order to cut off your indemnity benefits. It must be more than just inefficiency, unsatisfactory conduct, or failure to perform work in the work-place.

Throughout Mr. Masnikoff’s twenty-year career he has worked tirelessly to ensure that insurance companies do not wrongfully deny indemnity benefits so that the injured worker and their family can continue to pay bills and put food on the table while receiving treatment and are unable to work. If you find yourself or a loved one in this situation, do not hesitate to call. The consultation is always free. We practice throughout Florida and you can reach any one of our offices at (877) 817-4127.


Lyle B. Masnikoff & Associates, P.A.
1645 Palm Beach Lakes Blvd #550
West Palm Beach, FL 33401
(561) 598-7120


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