Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

One of the many changes wrought to the Florida Workers' Compensation Law in 2003 was the enactment of §440.093(3), Fla. Stat., which provides:

 

(3) Subject to the payment of permanent benefits under s.440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries. . . .

 

This subsection was at issue in W.G. Roe & Sons v. Razo-Guevara, decided by the First District Court of Appeal on 12/31/2008.  Although there are precious few facts set forth in the court's short opinion, it would appear that the claimant had both physical and psychological injuries resulting from his compensable accident, but the JCC had limited his entitlement to temporary compensation resulting from the psychological injuries to a period of only six months.

 

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Section 440.15(2)(a) limits temporary compensation benefits to a maximum of 104 weeks. So what if there are two on-the-job accidents which concurrently produce periods of temporary disability?  Is the claimant limited to a maximum of 104 weeks in compensation for both accidents?  No, said the First District Court of Appeal in Auman v. Leverock's Seafood House, decided on 12/16/2008.

 

The claimant injured her knee on 10/17/2004 and her right arm and elbow ten days later on 10/27/2004.  Accident #2 was found to be disabling, and accordingly the E/C paid temporary total disability benefits from 10/28/2004 through 10/27/2006, a total of 104 weeks.  But on 1/12/2005, the claimant had seen a doctor for her knee injury (accident #1) who opined that the claimant needed surgery and that she should not return to work until the surgery was performed.

 

In his December 2007 order, the JCC ordered the E/SA to authorize the surgery, but he awarded temporary total disability benefits for that condition only for the period from 10/26/2006 (the date benefits were exhausted for accident #2) through 1/11/2007 (the date marking the end of the 104-week period commencing on 1/12/2005) for a total of 11 weeks.  The JCC reasoned that because the claimant had already been compensated for accident #2 for the period from 1/12/2005 through 10/26/2006 (a period of 93 weeks), she had only 11 weeks (104 - 93) of entitlement to temporary compensation remaining.

 

The First DCA reversed, reasoning that §440.02(13) defines disability as "incapacity because of the injury" to earn wages.  Therefore, the claimant has a "bank" of 104 weeks of temporary disability benefits for her first accident.

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Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase.  Perhaps this is explained by the fact that the First District has concluded that despite the repeal, under §440.15(4)(a), Fla. Stat., an injured workers' TPD benefits must still be computed on the basis of what the employee is "able to earn."  See, e.g., Fardella v. Genesis Health, Inc., 917 So.2d 276 (Fla. 1st DCA 2005).

 

In Whitaker v. North American Tank Lines, Inc., decided on 8/15/2008, the First District concluded that the claimant did not voluntarily limit his post-accident income by quitting his job with North American Tank Lines because the job required him to work outside his medical limitations.  Therefore, the court reversed the JCC's denial of TPD benefits.

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One of the defenses that has become revitalized under the 2003 amendments to the Florida Workers' Compensation Act is that of "misconduct."  This defense was originally enacted in 1989, and had to do primarily with the defense of a "wage loss" claim where the claimant's post-accident employment was terminated because of his own misconduct on the job.  But since the legislature repealed the "wage loss" provisions in 1994,  there apparently hasn't been very much litigation on the topic.

 

In 2003, however, the legislature enacted s.440.15(4)(e) and specifically made the claimant's post-accident "misconduct" on the job a defense to the payment of temporary partial disability ("TPD") benefits.  But what is "misconduct" exactly?  We now have some guidance from the First District Court of Appeal on that question.

 

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