42
Fla. L. Weekly D1716fTop of Form

Workers’
compensation — Temporary total disability — It is improper to award TTD
benefits for first seven days of disability period where injury does not result
in more than 21 days of disability — Seven day exemption applies to the first
days of the disability period rather than the first days after the date of the
accident

JACQUELINE SINCLAIR, Appellant, v.
MANORCARE HEALTH SERVICES – DUNEDIN, and HCR MANORCARE, Appellees. 1st
District. Case No. 1D16-4975. Opinion filed August 7, 2017. An appeal from an
order of Judge of Compensation Claims. Stephen L. Rosen, Judge. Date of
Accident: January 28, 2014. Counsel: Bradley G. Smith and Nicolette E. Tsambis
of Smith, Feddeler, Smith, P.A., Lakeland, for Appellant. Marcie L. Baker of
The Law Office of Marcie L. Baker, P.A., Zephyrhills, for Appellees.

(PER CURIAM.) Although Appellant, a
workers’ compensation claimant, has voluntarily dismissed her appeal of an
order of the Judge of Compensation Claims (JCC), this Court is confronted with
Appellees’ cross-appeal, challenging the portion of the order that awards
temporary total disability (TTD) benefits for the period of February 4, 2014,
through February 14, 2014, and associated penalties, interest, costs, and
attorney’s fees (PICA). For the reasons that follow, we reverse that award.

It is undisputed that Claimant
sustained a compensable injury on January 28, 2014, went home, and did not see
an authorized treating physician until she attempted to return to work on
February 4, 2014. The doctor took her entirely off work as of that date.
Further, Claimant did not attend a follow-up appointment scheduled for February
14, 2014, and apparently did not return to the authorized doctor until almost a
year later. As a result, the doctor declined to opine that Claimant’s work
restrictions remained in place beyond February 14, 2014. The authorized doctor
was never asked whether Claimant’s disability began before he first saw her
(for example, on the date of accident), and never provided such an opinion.

In the meantime, the
Employer/Carrier (E/C) paid Claimant TTD benefits for only the period from
February 12 through 18, 2014. Claimant then filed a claim for TTD benefits for
a much broader period of time — from the date of accident and continuing —
together with PICA. The JCC made the following findings:

[A]s of
February 14, 2014, the Claimant unintentionally abandoned her medical care
authorized by the Employer/Carrier for the industrial accident. Because she did
not keep her schedule[d] appointment with the authorized facility on February
14, 2014, I find that the Claimant is temporarily and totally disabled as of
that date but not beyond that date.

. . .

Claimant
was not placed on temporary total disability status until she saw an authorized
treating physician on February 4, 2014. Even assuming that she became
temporarily and totally disabled beginning January 29, 2014, she would still
not have been disabled for 21 days when she abandoned authorized medical care
on February 14, 2014.

This finding — that the disability
period was February 4 through 14, 2014 — is supported by competent substantial
evidence in the record. But an application of the law to these findings indicates
that the JCC erred to the extent the TTD award includes the first seven days of
the disability period. Section 440.12(1), Florida Statutes (2013), provides
that “[c]ompensation is not allowed for the first 7 days of disability, except
for [medical] benefits” unless “the injury results in more than 21 days of
disability.” Notable is that this seven day exemption applies to the first days
of the disability period rather than the first days after the date of accident;
although often conceded or proven that these periods overlap, it was neither
conceded nor proven here that Claimant was unable to work for the first days
after her accident for reasons due to the compensable accident.

Given the error of law, remand is
required for correct application of section 440.12(1) to the facts as found by
the JCC. The JCC’s award of credit to the E/C for TTD payments for the period
of February 12 through 18, 2014, stands. If, as it appears, the credit will
satisfy TTD for the remainder of the disability period, then the E/C does not
owe any TTD benefits for that period, nor PICA thereon. The E/C has waived any
claim for reimbursement of any overpayment.

REVERSED in part, AFFIRMED in part,
and REMANDED for entry of an order consistent with this opinion. (ROWE, MAKAR,
and JAY, JJ., CONCUR.)

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