Even though the claimant bore a wage loss to his temporary partial disability benefits due to a COVID-19 lay-off, he must still prove the work injury was a contributing causal factor to that wage loss.

This case is interesting because it involves a claim for temporary partial disability benefits relative to the COVID-19 pandemic. Recall that we are typically bound by the Toscano case, which leaves very few defenses to a claim for temporary partial disability.

However, here the judge held that the closing of the employer’s hotel on March 20, 2020, due to the pandemic was an intervening and superseding cause of the claimant’s loss of wages, and he denied temporary partial disability benefits. He distinguished this claim from Toscano and, instead, relied on Publix Risk Management v. Carter, 278 So.3d 204 (Fla. 1st DCA 2019), which held that the claimant must still establish that the work injury is a contributing causal factor to the loss of wages.

Judge Sculco distinguished this set of facts from Toscano because the hotel had provided the claimant with full-duty work after the accident, at the same rate of pay and within her restrictions, versus as a result of her inability to perform the functions of the job before and after the lay-off. Therefore, the judge found the Carter case to be on point as both cases involved an employer that provided full-time modified work and then the claimant suffered wage loss for reasons unrelated to the work injury.

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