LUIS ACOSTA, APPELLANT,
v.
KRACO, INC., AND CORPORATE GROUP SERVICES, APPELLEES
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The claimant lacks standing to challenge the constitutionality of the statute because he failed to prove he would be eligible for wage loss benefits absent the age restriction.
[1] A claimant seeking wage loss benefits must demonstrate that but for a statutory provision, they would be eligible for such benefits, in order to have standing to challeng…
[2] A claimant's eligibility for wage loss benefits is contingent upon meeting threshold requirements, including permanent impairment, and demonstrating an actual wage loss a…
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Join FLexlaw to unlock all legal intelligenceThe claimant, injured at age 65, was denied wage loss benefits based on Fla. Stat. § 440.15(3)(b)3.d. (1979), which terminates such benefits upon reac…
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THOMPSON, Judge.
This is an appeal from a compensation order denying wage loss benefits on the ground that the claimant is more than 65 years old. The claimant contends that § 440.15(3)(b)3.d., Fla.Stat. (1979), requiring the termination of wage loss benefits when a claimant reaches age 65 is unconstitutional.
The claimant sustained a compensable injury to his back on April 16,1980. He had already reached the age of 65 at the time he was injured. On September 4, 1980, his physician found that he had reached maximum medical improvement with a six percent permanent impairment of the body as a whole based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides).
At a hearing on the claim for wage loss benefits, the deputy found that “[t]he Claimant, due to his permanent impairment, meets the threshold requirements for wage loss benefits, but I specifically find that the Claimant is not entitled to wage loss benefits since he is age 68 and Section 440.15(3)(b)(3)(d), Florida Statutes, 1979 proscribes the granting of such benefits, when the injured employee reaches age 65.... ” The Deputy Commissioner did not find that the claimant would be entitled to wage loss benefits if he had not already reached age 65. The deputy merely found that the claimant had reached the threshold requirement for entitlement to wage loss benefits, in that he did sustain permanent impairment according to the AMA Guides. There was no determination of whether there was an actual wage loss or whether the work search was sufficient, and no finding that the claimant would be entitled to wage loss benefits but for the provisions of § 440.15(3)(b)3.d.
The claimant has no standing to raise the constitutionality of the statute since he failed to prove that but for the statute he would be eligible for wage loss benefits. Robbins v. Rophie Shoes, Inc., 413 So. 2d 839 (Fla. 1st DCA 1982).
Reversed and remanded for further proceedings consistent with this opinion.
SHIVERS, J., concurs.
ROBERT P. SMITH, Jr., C.J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fred v. Sasso, 431 So. 2d 204 (Fla. 1st DCA 1983)…se, Inc., 415 So. 2d 1277, 1279 (Fla. 1st DCA 1982). The requirement of standing has been strictly enforced by this court in other cases assaulting the wage-loss statute, section 440.15(3)(a) and (b), as unconstitutional. See Acosta v. Kraco, Inc., 426 So. 2d 1120 (Fla. 1st DCA 1983); Acton v. Ft. Lauderdale Hospital, 418 So. 2d 1099 (Fla. 1st DCA 1982); Robbins v. Rophie Shoes, Inc., 413 So. 2d 839 (Fla. 1st DCA 1982); and Jack Eckerd Corp. v. Coker, 411 So. 2d 1026 (Fla. 1st DCA 1982). Acosta, for example,…
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Morrow v. Amcon Concrete, Inc., 433 So. 2d 1230 (Fla. 1st DCA 1983)…ployer and carrier have in fact been re-dueing, by 50 percent, the permanent wage-loss benefits otherwise payable to Morrow since his 62nd birthday in May 1981, Morrow has standing to urge the contentions that he does. Compare Acosta v. Kraco, Inc., 426 So. 2d 1120 (Fla. 1st DCA 1983); Acton v. Fort Lauderdale Hospital, 418 So. 2d 1099 (Fla. 1st DCA 1982); Robbins v. Rophie Shoes, Inc., 413 So. 2d 839 (Fla. 1st DCA 1982); Jack Eckerd Corp. v. Coker, 411 So. 2d 1026 (Fla. 1st DCA 1982). We first take up Morrow…
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Izquierdo v. Volkswagen Interamericana, 450 So. 2d 602 (Fla. 1st DCA 1984)…ng to challenge the constitutionality of section 440.15(3)(b)3.d., Florida Statutes (1979). The order contains no finding that claimant would be entitled to wage-loss benefits but for the provisions of section 440.15(3)(b)3.d. Acosta v. Kraco, Inc., 426 So. 2d 1120 (Fla. 1st DCA 1983); Jack Eckerd Corp. v. Coker, 411 So. 2d 1026 (Fla. 1st DCA 1982). AFFIRMED. MILLS and WIGGINTON, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robbins v. Rophie Shoes, Inc., 413 So. 2d 839 (Fla. 1st DCA 1982)