Workers’
compensation — Where claimant filed third petition seeking additional
impairment benefits prior to hearing on first petition for benefits, judge of
compensation claims went beyond the scope of issues before her when she
essentially denied additional impairment benefits sought in third petition
after having reserved jurisdiction over claim raised in third petition — JCC
properly denied claim for permanent total disability benefits where claimant
did not prove elements of claim — JCC properly rejected constitutional
challenge to 104-week statutory limit on temporary benefits

JOSE GOMEZ-LUJANO, Appellant, v. PALM BEACH GRILL-HOUSTON’S
RESTAURANT AND TRAVELERS INSURANCE, Appellees. 1st District. Case No. 1D15-670.
Opinion filed November 19, 2015. An appeal from an order of the Judge of
Compensation Claims. Shelley H. Punancy, Judge. Date of Accident: October 31,
2001. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L.L., Fort Lauderdale,
for Appellant. Jerry M. Hayden and Willie B. Ramhofer of Vernis and Bowling,
P.A., Miami, for Appellees.

(PER CURIAM.) Claimant, Jose Gomez-Lujano, appeals a final
order entered by the Judge of Compensation of Claims (JCC) denying indemnity
benefits and associated penalties, interest, costs, and attorney’s fees (PICA).
Claimant argues that the JCC exceeded the scope of her review when she denied
additional impairment benefits (IBs), that she misinterpreted case law when she
denied the request for permanent total disability (PTD) benefits and associated
PICA, and that the JCC’s denial of his claims for temporary disability benefits
on the basis of the 104-week statutory limitation violated his constitutional
rights to access to courts and to due process. For the reasons explained below,
we affirm the order as modified.

Background

Claimant suffered a compensable injury on October 31, 2001.
As a result of the injury, the Employer/Carrier (E/C) provided medical care,
104 weeks’ worth of temporary indemnity benefits ending on December 3, 2004,
and impairment benefits. Claimant returned to work from 2005 until April 2007,
when he underwent shoulder surgery for one of his compensable injuries. As a
result, Claimant was removed from work from April 30, 2007, to June 12, 2007,
and was restricted from working full duty from June 13, 2007, to September 14,
2007.

Claimant filed two petitions for benefits seeking additional
temporary disability benefits and associated PICA, or, in the alternative, PTD
benefits and associated PICA. Prior to the hearing on the first petition,
Claimant filed a third petition seeking additional IBs; this claim was not
mediated before the hearing. The E/C contested the claims raised in the original
petitions and, in the alternative, sought an offset or credit against any award
of temporary or permanent disability benefits for the IBs it had already paid.
The E/C and Claimant agreed that the JCC should reserve jurisdiction to address
the claim raised in the third petition.

In the order on appeal, the JCC reserved jurisdiction over
the claim raised in the third petition, but she also stated, “no additional
impairment benefits are owed to Claimant.” Relying on the 104-week statutory
limitation contained in paragraphs 440.15(2)(a) and 440.15(4)(b), Florida
Statutes (2001), the JCC denied the request for temporary benefits. The JCC
also denied the request for PTD benefits, reasoning that Claimant did not meet
his burden to prove entitlement to such under the law in effect on the date of
his accident. As a result of these rulings, the JCC denied the request for
PICA. This timely appeal follows.

Analysis

We agree with both parties that the JCC went beyond the
scope of the issues before her when she essentially denied the additional IBs
sought in the third petition, despite having also reserved jurisdiction
(creating an inconsistency). The JCC should have reserved jurisdiction over
these issues. See § 440.25(2), Fla. Stat. (requiring mediation of claims
unless waived by the deputy chief judge of compensation claims); Parodi v.
Fla. Contracting Co., Inc., 16 So. 3d 958, 961 (Fla. 1st DCA 2009) (holding
JCC properly reserved jurisdiction on unmediated petitions for benefits); Isaac
v. Green Iguana, Inc., 871 So. 2d 1004, 1006 (Fla. 1st DCA 2004) (reversing
a JCC’s ruling reached in absence of prior notice and opportunity to defend
because it offended the procedural due process right of a claimant).
Accordingly, we strike the following sentence from the order: “I therefore
conclude that no additional impairment benefits are owed to Claimant.”

The JCC properly applied our decision in Westphal v. City
of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) (en banc), when she
denied the requests for PTD benefits and for temporary benefits beyond the
104-week statutory limitation. Westphal supplants a claimant’s need to
establish attainment of MMI, but not a claimant’s need to prove the other
elements of a claim for PTD benefits. Id. at 441. Because Westphal
makes a claimant “eligible to assert a claim for permanent and total disability
benefits,” but it does not automatically entitle a claimant to the payment of
such benefits, Claimant was still required to present evidence that he
otherwise meets the legal standards for such an award.

Finally, with regards to the JCC’s denial of the request for
temporary benefits, this Court has recently rejected similar constitutional
challenges to the 104-week statutory limit on temporary benefits. See Vancamp
v. Decision HR 30, Inc., 40 Fla. L. Weekly D1941 (Fla. 1st DCA Aug. 19,
2015); Ramirez v. Jorda Enters., Inc., 164 So. 3d 1291 (Fla. 1st DCA
2015). Thus, we affirm the denial of PTD, additional temporary benefits, and
associated PICA.

AFFIRMED AS MODIFIED. (LEWIS, THOMAS, and ROWE, JJ.,
CONCUR.)