John F. Sharpless Workers Compensation Law Blog on Lawyers.com

The First District Court of Appeals recently provided some guidance on what is necessary for an Employer/Carrier to deny a temporary partial disability (TPD) claim based upon voluntary limitation of income.  In Whitaker v. North American Tank Lines, Inc., the Judge of Compensation Claims ruled that despite the fact that the claimant was limited in using his upper extremity and felt he could not do his work as a truck driver, he had voluntarily limited his income and therefore was not entitled to TPD benefits.  The first DCA reversed holding that in order to assert a voluntary limitation of income defense, The Employer/Carrier has the burden of proving that at least one job exists within the claimant’s restrictions.  In Whitaker, the Employer/Carrier did not prove that the truck driving job, or any other job, was within the claimant’s work restrictions.