OSCAR IZQUIERDO, APPELLANT,
v.
VOLKSWAGEN INTERAMERICANA, AND UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLEES
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The court held that the claimant waived the right to raise the issue of temporary partial disability benefits for an interim period by failing to bring it to the deputy commissioner's attention. The court also held the claimant lacked standing to challenge the constitutionality of a statute.
The claimant appealed an order from the deputy commissioner in a workers' compensation case, arguing the commissioner erred in not awarding temporary …
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SHIVERS, Judge.
In this workers’ compensation case, claimant, Izquierdo, appeals an order of the deputy commissioner. Appellant contends that the deputy commissioner erred in failing to award temporary partial disability benefits for a specified period of time and in denying wage-loss benefits pursuant to section 440.15(3)(b)3d, Florida Statutes (1979). We affirm.
The order sub judice, although awarding temporary total disability benefits from March 28, 1980, to May 26, 1982, and again from January 10, 1983, through April 20, 1983, is silent as to the interim period which the award creates, i.e., May 26, 1982, to January 10, 1983. Appellant contends that he is entitled to temporary partial disability benefits during this hiatus.
This error or oversight, if it is such, was never pointed out to .the deputy commissioner even though appellant had every opportunity to do so. An order prior to the one sub judice was entered on August 1, 1983. That order also was silent as to the hiatus. Claimant moved for reconsideration of the August 1 order and raised several issues but did not raise this issue. The deputy commissioner granted appellant’s motion for reconsideration, vacated the August 1 order, and entered the order sub judice. At no time did appellant bring this issue to the attention of the deputy commissioner. Therefore, we affirm. Mezquita v. Florida Steel Corp., 419 So. 2d 675 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982).
We also find that appellant has no standing 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.
Cases With Similar Vibessemantic neighbors from the corpus
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Stahl v. Tenet Health Sys., Inc., 54 So. 3d 538 (Fla. 3d DCA 2011)…demonstrate — through a finding made in the OJCC proceeding, or a showing of evidence — that but for the provisions of section 440.15(3), as amended in 2003, he would be entitled to receive wage-loss benefits. Izquierdo v. Volkswagen Interamericana, 450 So. 2d 602, 603 (Fla. 1st DCA 1984); Acosta v. Kraco, Inc., 426 So. 2d 1120, 1121 (Fla. 1st DCA 1983); Jack Eckerd Corp. v. Coker, 411 So. 2d 1026, 1028 (Fla. 1st DCA 1982). In this case, the plaintiff abandoned his petition for benefits, and therefore, this…
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Beck v. MMI Dining Systems/Montverde Academy/Travelers Ins. Co., 183 So. 3d 1160 (Fla. 1st DCA 2015)…1st DCA 1996) (rejecting due process challenge to 104-week limit on temporary total disability benefits for lack of standing where claimant reached maximum medical improvement before expiration of 104 weeks); Izquierdo v. Volkswagen Interamericana, 450 So. 2d 602, 603 (Fla. 1st DCA 1984) (holding claimant had no standing to challenge constitutionality of paragraph 440.15(3)(b) because “order contains no finding that claimant would be entitled to wage-loss benefits but for” that provision); Acosta v. Kraco, I…
Authorities Cited
- Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)
- Jack Eckerd Corp. & Travelers Ins. Co. v. Coker, 411 So. 2d 1026 (Fla. 1st DCA 1982)
- Mezquita v. Fla. Steel Corp. & Hartford Ins. Co., 419 So. 2d 675 (Fla. 1st DCA 1982)
- Acosta v. Kraco, Inc., 426 So. 2d 1120 (Fla. 1st DCA 1983)