ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS AND GALLAGHER BASSETT INSURANCE SERVICE, APPELLANTS,
v.
RICHARD HANSON, APPELLEE
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In this workers' compensation appeal, the First District Court of Appeal reversed an award of permanent partial disability benefits and penalties imposed against the employer/carrier for failure to timely accept a physician's disability rating. The court found that the deputy commissioner failed to adequately explain the basis for awarding disability beyond the highest medical rating and improperly imposed penalties under a statute that does not apply to permanent disability payments.
The court held that the award of additional permanent partial disability beyond the highest medical rating must be reversed because the deputy failed to adequately explain whether it was based on wage-earning capacity loss or anatomical impairment. The court also held that penalties for late payment of permanent disability are improper because Section 440.20(5), Florida Statutes, does not apply to payments of permanent disability benefits.
[1] A workers' compensation award for permanent partial disability must be reversed and remanded if the deputy commissioner fails to sufficiently set forth the ultimate facts…
[2] Penalties for late payment of compensation, as provided by Section 440.20(5), Florida Statutes, do not apply to payments of permanent disability.
Previewing 2 of 3 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“the deputy found that the claimant "sustained an additional 10% permanent partial disability based on the claimant's complaints, restrictions and continued disability, even though he has returned to his old job, giving him a total of 25% permanent partial disability of the body as a whole." The deputy does not explain in his order whether the additional 10% disability resulted from wage-earning capacity loss or anatomical impairment.”
Establishes the basis for reversal—the deputy failed to adequately explain the factual foundation for the disability award beyond medical evidence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant injured his back and wrist at work. The employer/carrier paid temporary total disability benefits. After the claimant returned to work wi…
The full statement of facts, procedural history, and disposition for this case are member content.
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PEARSON, TILLMAN (Retired), Associate Judge.
In this workers’ compensation appeal, the employer/carrier seeks reversal of an order awarding the claimant 25% permanent partial disability of the body as a whole as well as 10% permanent partial disability of the left arm. The employer/carrier also contests the deputy commissioner’s sanction of penalties for all but 5% of the permanent partial disability ultimately awarded. According to the deputy, penalties were applicable in this case because the employer/carrier did not timely accept the full permanent disability rating given by claimant’s treating physician.
We find that both of the employer/carrier’s arguments have merit; the deputy did not sufficiently set forth the basis of his award of permanent partial disability and the penalty sanction was improper. When claimant fell at work injuring his back and wrist, the employer/carrier paid the necessary temporary total disability. After claimant returned to work under restrictions against heavy lifting, claimant’s treating physician sent the carrier a report stating that claimant’s back injury had resulted in 5% permanent partial disability, which the carrier began paying. Several weeks later, the physician sent a note to the carrier saying that he meant to give a 15%, not a 5%, rating of claimant’s back and that claimant’s wrist injury (not discussed in the first report) had resulted in a 10% permanent disability of the left arm. Instead of accepting either the 15% rating of the back or the 10% rating of the arm, the employer/carrier ordered an independent examination by another physician. That doctor concurred in the 15% back rating but disagreed that any permanent impairment of the wrist existed. The employer/carrier then agreed to pay an additional 10% permanent partial disability benefit for the back injury. In response to the claimant’s request for disability benefits in excess of 15%, a hearing was held in which the depositions of both physicians (claimant’s and the employer/carrier’s) were admitted into evidence. The deposition testimony reflected the same opinions as to disability rating given in their reports.
Despite the fact that the highest impairment rating given by any physician for the back injury was 15%, the deputy found that the claimant “sustained an additional 10% permanent partial disability based on the claimant’s complaints, restrictions and continued disability, even though he has returned to his old job, giving him a total of 25% permanent partial disability of the body as a whole.” The deputy does not explain in his order whether the additional 10% disability resulted from wage-earning capacity loss or anatomical impairment. Since the order fails to sufficiently identify the ultimate facts on which the award is based, we must reverse that portion of the award and remand for a more adequate explanation. See Commercial Union Assurance Co. v. Hyman, 379 So. 2d 456 (Fla. 1st DCA 1980).
The employer/carrier also contends that the deputy’s assessment of penalties for its failure to “timely” accept permanent disability was in error. We agree. Section 440.20(5), Florida Statutes (1979), provides for an award of penalties for late payment of compensation absent an award. That section, which is the only arguable authority for a penalty award in this case, has been held not to apply to payments of permanent disability. Kuhl v. Kirk, 177 So. 2d 399 (Fla.1965); Massey v. Haynie, 180 So. 2d 331 (Fla.1965); Judicial Administrative Commission v. Marks, 394 So. 2d 211 (Fla. 1st DCA 1981).
REVERSED AND REMANDED for further consideration consistent with this opinion.
MILLS and SHAW, JJ., concur.
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Town OF Lake Park & McCreary Corp. v. Matthews Karl, 642 So. 2d 823 (Fla. 1st DCA 1994)…rsion, the Legislature clearly intended to cover all disability benefits, both temporary and total, as well as death, dependency, and impairment benefits. We have not overlooked our decision in Orange County Board of County Commissioners v. Hanson, 400 So. 2d 1045 (Fla. 1st DCA 1981), in which it would appear that we arrived at a contrary result. However, that opinion, for reasons not apparent on the face of the decision, improperly refers to a “1979” version of subsection 440.20(5). Obviously, the decision o…
Authorities Cited
- Rubin v. Sanford, 180 So. 2d 331 (Fla. 1965)
- Jud. Admin. Comm'n v. Marks, 394 So. 2d 211 (Fla. 1st DCA 1981)
- Commercial Union Assurance Co. & Convalescent Care v. Hyman, 379 So. 2d 456 (Fla. 1st DCA 1980)