STANDARD CONSTRUCTION & ASSOCIATES AND CONTINENTAL NATIONAL AMERICAN INSURANCE GROUP, APPELLANTS,
v.
HENRY B. KINSLER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a workers' compensation appeal, the Florida First District Court of Appeal reversed the deputy commissioner's award of temporary total disability (TTD) benefits to a mason's assistant who suffered a cement-induced rash. The court held that TTD cannot be awarded for periods when the claimant was actually working or after medical evidence showed the injury had healed.
The court held that the deputy commissioner's TTD award was erroneous on two independent grounds: (1) TTD cannot be awarded for periods when the claimant was actually working, and (2) TTD cannot be awarded after the injury has healed, as the uncontradicted medical evidence showed the rash was healed by October 17, 1979.
[1] A claimant cannot be awarded temporary total disability benefits for a period during which the claimant was able to and did work.
[2] Temporary total disability is defined as the healing period during which a claimant is, by reason of injury, totally disabled and unable to work.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is illogical to conclude that a claimant is totally disabled during a period of time when the evidence shows that the claimant could and did work.”
Establishes the court's core rationale that TTD cannot be awarded during periods of actual employment
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn July 27, 1979, the claimant broke out in a severe rash on his hands, forehead, and back from exposure to cement mix. He received emergency room tre…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Healing Period cases and more on FLexlaw
JOANOS, Judge.
In this worker’s compensation appeal, the employer and its carrier contest the deputy commissioner’s finding that the claimant was temporarily totally disabled (“TTD”) for a period of three months following the date of claimant’s work-related accident. We agree with the employer that the deputy erred, as a matter of law, in awarding TTD benefits.
While working as a mason’s assistant on July 27, 1979, the claimant broke out in a severe rash on his hands, forehead and back which the parties stipulated was caused by exposure to cement mix. The claimant received treatment for the rash at the emergency room and returned to work a week after the initial outbreak. He worked for about a week before he was laid off for non-accident related reasons, but his rash worsened and required another visit to the emergency room. Thereafter, the claimant applied for one job at a construction site but was not hired. In November the claimant started work again doing odd jobs and “cleanup work.”
Besides the two emergency room visits, the record does not reflect any other medical examination until October 17,1979 when the claimant was seen by Dr. Kohen, an allergy specialist. The doctor testified that the claimant’s rash was healed when he first saw the claimant. Although the claimant went to Dr. Kohen again on October 26, 1979, the record indicates that each of these visits was for the purpose of diagnosis, not treatment.
The deputy’s award of TTD is erroneous in two respects. First, she awarded TTD through a period of time when the claimant was working. It is illogical to conclude that a claimant is totally disabled during a period of time when the evidence shows that the claimant could and did work. Cling Electric, Inc. v. Jones, 376 So. 2d 481 (Fla. 1st DCA 1979); Westinghouse Electric Corp. v. Williams, 379 So. 2d 1032 (Fla. 1st DCA 1980). As a second ground for reversal, the record indicates that the deputy found the claimant to be TTD even when he was not suffering the effects of the rash. TTD is defined as the healing period during which the claimant is by reason of the injury totally disabled and unable to work. Concord Realty Corp. v. Romano, 159 Fla. 1, 30 So. 2d 495 (Fla.1947). According to Dr. Kohen’s uncontradicted testimony, the claimant’s rash was healed by the time that the claimant came to the doctor on October 17, 1979; an award of TTD past that date could not be based on competent, substantial evidence.1
As a final point, the employer correctly points out that reversal of the award of benefits will also require the deputy to reconsider the attorney’s fee award on remand. Sue Ann’s Capri Lounge v. Harhalos, 377 So. 2d 989 (Fla. 1st DCA 1979).
REVERSED and REMANDED for reconsideration consistent with this opinion.
ERVIN and BOOTH, JJ., concur. . The employer also argued that even assuming that the claimant was temporarily totally disabled, the award of TTD was calculated incorrectly because no credit was given for a stipulated amount of TTD already paid or for the salary the claimant earned while working. The claimant conceded error on this point and we agree that the calculation was erroneous. This issue has been superseded, however, since we are requiring the entire TTD award to be reconsidered on remand.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fort Pierce Utils. & Aetna Cas. & Sur. Co. v. Edmond J. Blotney, 396 So. 2d 852 (Fla. 1st DCA 1981)…laimant is working full-time in non-sheltered employment. Cling Electric, Inc. v. Jones, 376 So. 2d 481 (Fla. 1st DCA 1979); Westinghouse Electric Corp. v. Williams, 379 So. 2d 1032 (Fla. 1st DCA 1980); Standard Construction & Associates v. Kinsler, 394 So. 2d 1083 (Fla. 1st DCA 1981) [1981 FLW 568]; MJM Construction Co. v. Roberts, IRC Order 2-3387 (March 31, [*854] 1978). The evidence here fails to support claimant’s entitlement to temporary total disability benefits from November 14, 1978 until March 4, 197…
-
Soverel Harbour, Inc. v. Roberts, 634 So. 2d 298 (Fla. 1st DCA 1994)…did work, albeit sparingly, for a period between October and December of 1991. It is illogical to conclude that claimant was totally disabled during a period when the evidence shows she could and did work. Standard Construction & Assoc, v. Kinsler, 394 So. 2d 1083 (Fla. 1st DCA 1981). In sum, we reverse that portion of the order awarding attendant care benefits to the husband after April 30, 1990. We also reverse that portion awarding claimant TTD benefits, and remand for the JCC to determine at which point…
Authorities Cited
- Concord Realty Corp'n & Iowa Mut. Liab. Ins. Co. v. Romano, 159 Fla. 1 (Fla. 1947)
- Cling Elec., Inc. v. Jones, 376 So. 2d 481 (Fla. 1st DCA 1979)
- Lounge v. Harhalos, 377 So. 2d 989 (Fla. 1st DCA 1979)
- Westinghouse Elec. Corp. (Self-Insured) v. Williams, 379 So. 2d 1032 (Fla. 1st DCA 1980)