41
Fla. L. Weekly D2749cTop of Form
Fla. L. Weekly D2749cTop of Form
Workers’
compensation — Temporary benefits — Judge of compensation claims erred in
denying additional temporary partial disability benefits and associated
penalties, interest, costs, and attorney’s fees beyond 104-week cap imposed by
statute — Claimant entitled to benefits for weeks preceding attainment of MMI
— Denial of temporary total disability benefits and accompanying PICA affirmed
because no party challenged JCC’s finding of fact that no medical evidence
supported that claim
compensation — Temporary benefits — Judge of compensation claims erred in
denying additional temporary partial disability benefits and associated
penalties, interest, costs, and attorney’s fees beyond 104-week cap imposed by
statute — Claimant entitled to benefits for weeks preceding attainment of MMI
— Denial of temporary total disability benefits and accompanying PICA affirmed
because no party challenged JCC’s finding of fact that no medical evidence
supported that claim
SILVIA
C. GONZALEZ, Appellant, v. VISA and TRAVELERS, Appellees. 1st District. Case
No. 1D15-4512. Opinion filed December 12, 2016. An appeal from an order of the
Judge of Compensation Claims. Robert D. McAliley, Judge. Date of Accident:
March 16, 2012. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort
Lauderdale, and Albert Marroquin of Richard E. Zaldivar, P.A., Miami, for
Appellant. Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, for Appellees.
C. GONZALEZ, Appellant, v. VISA and TRAVELERS, Appellees. 1st District. Case
No. 1D15-4512. Opinion filed December 12, 2016. An appeal from an order of the
Judge of Compensation Claims. Robert D. McAliley, Judge. Date of Accident:
March 16, 2012. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort
Lauderdale, and Albert Marroquin of Richard E. Zaldivar, P.A., Miami, for
Appellant. Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, for Appellees.
(PER
CURIAM.) In this workers’ compensation case, Claimant challenges an order of
the Judge of Compensation Claims (JCC) that denied her claim for additional
temporary total disability (TTD) and temporary partial disability (TPD)
benefits beyond the 104-week cap imposed by subsections 440.15(2) and (4),
Florida Statutes (2011), and also denied associated penalties, interest, costs,
and attorney’s fees (PICA). We affirm the denial of TTD and accompanying PICA
because no party challenged the JCC’s finding of fact that no medical evidence
supports that claim. We reverse the denial of TPD benefits and accompanying
PICA for the reasons that follow.
CURIAM.) In this workers’ compensation case, Claimant challenges an order of
the Judge of Compensation Claims (JCC) that denied her claim for additional
temporary total disability (TTD) and temporary partial disability (TPD)
benefits beyond the 104-week cap imposed by subsections 440.15(2) and (4),
Florida Statutes (2011), and also denied associated penalties, interest, costs,
and attorney’s fees (PICA). We affirm the denial of TTD and accompanying PICA
because no party challenged the JCC’s finding of fact that no medical evidence
supports that claim. We reverse the denial of TPD benefits and accompanying
PICA for the reasons that follow.
The
Florida Supreme Court has held, in Westphal v. City of St. Petersburg,
194 So. 3d 311 (Fla. 2016), that the 104-week limitation set forth in
subsection 440.15(2), as applied to a TTD recipient, is an unconstitutional
deprivation of access to the courts. Westphal‘s reasoning was recently
extended to subsection 440.15(4), which applies to TPD recipients, by this
Court in Jones v. Food Lion, Inc., 41 Fla. L. Weekly D2490 (Fla. 1st DCA
Nov. 9, 2016). Claimant here seeks TPD benefits from September 24, 2014,
through August 24, 2015. The JCC in the instant case denied Claimant’s claim
because Claimant had already received 104 weeks of temporary indemnity; under
the current state of the law, this was error.
Florida Supreme Court has held, in Westphal v. City of St. Petersburg,
194 So. 3d 311 (Fla. 2016), that the 104-week limitation set forth in
subsection 440.15(2), as applied to a TTD recipient, is an unconstitutional
deprivation of access to the courts. Westphal‘s reasoning was recently
extended to subsection 440.15(4), which applies to TPD recipients, by this
Court in Jones v. Food Lion, Inc., 41 Fla. L. Weekly D2490 (Fla. 1st DCA
Nov. 9, 2016). Claimant here seeks TPD benefits from September 24, 2014,
through August 24, 2015. The JCC in the instant case denied Claimant’s claim
because Claimant had already received 104 weeks of temporary indemnity; under
the current state of the law, this was error.
The
JCC made the additional finding of fact, unchallenged by any party, that
Claimant “was partially disabled through July 9, 2015,” and “reached actual MMI
[maximum medical improvement] shortly after . . . July 9.” Accordingly, on
remand, the JCC is instructed to determine whether Claimant reached MMI before
August 24, 2015, and if so, when, and to award TPD benefits and associated PICA
for any weeks between September 24, 2014, and August 24, 2015, that are prior
to Claimant’s attainment of MMI, on authority of Westphal and Jones.
JCC made the additional finding of fact, unchallenged by any party, that
Claimant “was partially disabled through July 9, 2015,” and “reached actual MMI
[maximum medical improvement] shortly after . . . July 9.” Accordingly, on
remand, the JCC is instructed to determine whether Claimant reached MMI before
August 24, 2015, and if so, when, and to award TPD benefits and associated PICA
for any weeks between September 24, 2014, and August 24, 2015, that are prior
to Claimant’s attainment of MMI, on authority of Westphal and Jones.
AFFIRMED
in part, REVERSED in part, and REMANDED with instructions. (RAY, WINOKUR, and
JAY, JJ., CONCUR.)
in part, REVERSED in part, and REMANDED with instructions. (RAY, WINOKUR, and
JAY, JJ., CONCUR.)
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