No Voluntary Limitation of Income Where Claimant Unable to Perform His Post-Accident Job
Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase. Perhaps this is explained by the fact that the First District has concluded that despite the repeal, under §440.15(4)(a), Fla. Stat., an injured workers' TPD benefits must still be computed on the basis of what the employee is "able to earn." See, e.g., Fardella v. Genesis Health, Inc., 917 So.2d 276 (Fla. 1st DCA 2005).
In Whitaker v. North American Tank Lines, Inc., decided on 8/15/2008, the First District concluded that the claimant did not voluntarily limit his post-accident income by quitting his job with North American Tank Lines because the job required him to work outside his medical limitations. Therefore, the court reversed the JCC's denial of TPD benefits.
