W. R. GRACE & CO. AND CNA INSURANCE GROUP, APPELLANTS,
v.
GERALD L. MARSHALL, APPELLEE
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W. R. Grace & Co. and its insurance carrier challenged a workers' compensation deputy commissioner's order finding an employee permanently and totally disabled and ordering vocational rehabilitation evaluation. The court affirmed, holding that the statute permits the deputy to find permanent total disability based on loss of wage earning capacity while simultaneously referring the employee for rehabilitation evaluation, without requiring completion of rehabilitation as a prerequisite to recognizing present disability.
The court held that section 440.49(1)(c) is procedural and permits the deputy commissioner to determine that an employee probably can be rehabilitated and that rehabilitation is in the employee's best interest while simultaneously finding the employee permanently and totally disabled due to loss of wage earning capacity. The statute does not require completion of rehabilitation as a condition precedent to recognizing present permanent disability.
[1] A statute that is plainly procedural is applicable to a case even if the injury occurred before the statute's enactment.
[2] A deputy commissioner complies with a statute requiring determination of rehabilitation potential and suitability prior to adjudicating permanent total disability by maki…
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Join FLexlaw to unlock all legal intelligence“Prior to adjudicating an injured employee to be permanently and totally disabled, the deputy commissioner shall determine whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.”
Statutory language of section 440.49(1)(c) that the deputy must apply before finding permanent total disability
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Join FLexlaw to unlock all legal intelligenceMarshall suffered a compensable injury in 1977. By the time of the deputy commissioner's order, Marshall had reached maximum medical improvement appro…
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ROBERT P. SMITH, Jr., Chief Judge.
The employer and carrier contest the deputy commissioner’s interpretation and application of section 440.49(l)(c), Florida Statutes (1979), by an order that both found Marshall permanently and totally disabled, due to loss of wage earning capacity, and that Marshall should be evaluated for vocational rehabilitation. The deputy thus ordered payment of chapter 440 benefits for permanent total disability from the date of maximum medical improvement, some 13 months before the compensation order, and ordered Marshall referred to the Division of Labor for vocational rehabilitation evaluation. Section 440.49(l)(c), enacted in 1979 as chapter 79-40, § 37, Fla. Laws, provides:
Prior to adjudicating an injured employee to be permanently and totally disabled, the deputy commissioner shall determine whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
Because the statute is plainly procedural, it is applicable to Marshall’s case notwithstanding that the subject injury occurred in 1977. See Myers v. Carr Constr. Co., 387 So. 2d 417 (Fla. 1st DCA 1980). We find that the deputy complied with the statute, fairly construed, by determining in the same order that claimant probably could and in his best interest should be rehabilitated with appropriate training, and that claimant is now permanently and totally disabled due to loss of wage earning capacity. To require the complete course of rehabilitation evaluation, reference to an appropriate facility, and the prescribed training as conditions to recognizing a claimant’s present permanent disability, would leave claimant either without compensation for his present disability or in receipt of an adulterated type of temporary disability benefits extending beyond the date of his maximum medical improvement. Because the statute permits the construction that best serves what we conceive to be the best interests of all affected parties and the harmonious administration of chapter 440, we adopt that construction and affirm the deputy’s order in this and other challenged respects.
AFFIRMED.
McCORD and MILLS, JJ., concur.
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Volusia Mem'l Park & Nationwide Ins. Co. v. White, 549 So. 2d 1114 (Fla. 1st DCA 1989)…d 424 (Fla.1960), cert. denied, 133 So. 2d 647 (Fla.1961). This general rule does not, however, apply to procedural enactments. City of Clermont v. Rumph, 450 So. 2d 573 (Fla. 1st DCA), rev. denied, 458 So. 2d 271 (Fla.1984); W.R. Grace v. Marshall, 405 So. 2d 444 (Fla. 1st DCA 1981). The 1983 amendment requiring a separate statement of specific findings of fact is procedural in nature and thus binding upon the deputy commissioner in this instance. The general statement in the order that Royal “did act in bad…
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ALL Am. Pools 'N Patio & Emp'rs Ins. of Wausau v. Zinnkann, 429 So. 2d 733 (Fla. 1st DCA 1983)…abilitation proceedings should precede the determination of PTD under both § 440.49(1), Fla. Stat. (1959) and § 440.49(1), Fla.Stat. (1979), which was in effect at the time of the scheduled hearing on the PTD claim. See W.R. Grace & Co. v. Marshall, 405 So. 2d 444 (Fla. 1st DCA 1981). If the rehabilitation effort had been successful the claimant would not have been PTD. It could not have been determined before rehabilitation whether he would be PTD. The mere filing of a claim does not automatically start .th…1 / 3
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Lockheed Space Operations & Aetna Life & Cas. Co. v. Bettie Langworthy, 686 So. 2d 665 (Fla. 1st DCA 1996)…6 (Fla.1992); cert. denied mem., 508 U.S. 913, 113 S.Ct. 2350, 124 L.Ed.2d 258 (1993)(amendment relating “to the time, manner, scope and circumstances under which a job search report must be made” deemed procedural). In W.R. Grace & Co. v. Marshall, 405 So. 2d 444, 445 (Fla. 1st DCA 1981) this court held that the legislature’s enactment of an evaluatory tool was procedural and not substantive. There, this court addressed the question whether a JCC erred in concluding that a claimant was PTD and contemporaneou…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myers v. Carr Constr. Co. & Mich. Mut. Ins. Co., 387 So. 2d 417 (Fla. 1st DCA 1980)