PERFECTO COCHO, APPELLANT,
v.
CONTINENTAL BAKING AND TRAVELERS INSURANCE COMPANY, APPELLEES
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Perfecto Cocho appealed an award of temporary total disability (TTD) benefits that denied coverage for a gap period between two awarded periods. The court reversed and remanded because the judge failed to make specific findings explaining why TTD was denied for the period December 2, 1992 to June 6, 1993, despite established law requiring that a claimant receive explicit notice of release to work before TTD can be denied.
The court held that TTD must be awarded where a claimant's physician never communicates a release to return to work, even if medical evidence suggests the claimant could have performed sedentary work, unless there is a finding that the claimant knew or should have known he was released to work. The order was reversed and remanded because the judge failed to make specific findings on this issue.
[1] Temporary total disability benefits may be awarded when a claimant's physician never communicates a release to work, even if retrospective testimony suggests the claimant…
[2] A claimant is entitled to temporary total disability benefits if there is medical testimony of total disability or evidence of a good faith unsuccessful work search.
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“Entitlement to TTD may be shown by medical testimony that a claimant is unable to work, or by evidence of a good faith unsuccessful work search.”
Establishes the two primary bases for proving TTD entitlement under Florida law.
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Join FLexlaw to unlock all legal intelligenceIn September 1992, Cocho injured his right leg and hip at work. His orthopedic physician, Dr. Henderson, initially placed him on light duty, then took…
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[*1204] SMITH, Senior Judge.
Claimant Perfecto Cocho has appealed from an order of the judge of compensation claims awarding certain temporary total disability (TTD) benefits' and denying others. We reverse and remand for further findings.
In September 1992, Cocho injured his right leg and hip in a compensable accident at work. After numerous visits to a walk-in clinic, the employer/carrier (E/C) referred him to Dr. Henderson, a board-certified orthopedist. Cocho first saw Dr. Henderson on September 29, 1992, and was placed on light duty. Dr. Henderson thereafter prescribed crutches and on October 23, 1992, while using the crutches at work, Cocho slipped in some spilled flour and fell on his right leg and hip.
On October 29, 1992, Dr. Henderson first took Cocho off work for two weeks to rest his leg; when Cocho returned on November 17, 1992, Henderson recommended an MRI and again took Cocho off work for two weeks (or until December 1, 1992). Cocho testified that, after the October 23, 1992 fall, Dr. Henderson “pulled me two weeks off this temporary disability.”
Dr. Henderson did not see Cocho after November 17, 1992, and it is undisputed that Cocho neither worked nor looked for work thereafter. Dr. Henderson testified that Co-cho probably could have done sedentary work until the MRI was performed on May 23, 1993, but, because he did not see him during that period, he “didn’t really know.” Cocho thereafter filed a claim for TTD benefits from October 24, 1992 to October 20, 1993. The claim was heard on December 2, 1993, where the judge received testimony from Cocho (live) and Dr. Henderson (deposition).
By order of January 12, 1994, the judge awarded TTD benefits for the periods October 29 to December 1, 1992, and June 7 to October 20, 1993, relying on Dr. Henderson’s opinions of total disability during those periods. The order makes no specific finding as to the failure to award TTD benefits for the period December 2, 1992 to June 6, 1993.
Entitlement to TTD may be shown by medical testimony that a claimant is unable to work, or by evidence of a good faith unsuccessful work search. Holiday Foliage v. Anderson, 642 So. 2d 94 (Fla. 1st DCA 1994). Here, there is no medical testimony that Cocho was unable to work between December 1,1992 and June 7,1993 (in fact, Dr. Henderson gave retrospective testimony that Cocho could have performed sedentary work during that period), and no evidence of an unsuccessful work search.
However, even absent medical evidence of total disability or an unsuccessful work search, TTD should be awarded where the claimant’s physician never communicated to the claimant a release to return to work, even assuming retrospective testimony that the claimant could have worked during the relevant period. Garcia-Vina v. U.S. Holiday Health & Recreation, 634 So. 2d 200, 201 (Fla. 1st DCA 1994) (emphasis supplied), citing Charles v. Suwannee Swifty, 622 So. 2d 114, 115 (Fla. 1st DCA 1993) (TTD cannot be denied in the absence of evidence that claimant was informed of a release to work, or should have known he was released to work).
Here, the judge did not explain his failure to award TTD benefits between December 1, 1992 and June 7, 1993. He may have relied on the absence of medical evidence of total disability and/or on Cocho’s failure to do a work search.
However, because Dr. Henderson never informed Cocho that he could return to work, these deficiencies are irrelevant unless the JCC found that Cocho “knew or should have known” he could return to work. See Charles, 622 So. 2d at 115. The E/C urge affirmance, citing Cocho’s knowledge that he had been taken off work only for discrete two-week increments, but we cannot determine that this knowledge formed the basis of the order. In other words, the judge may not have considered Cocho’s knowledge of his work status (or lack thereof), but simply relied on the absence of medical evidence of total disability, the lack of an unsuccessful work search, or both.
In light of the lack of findings in support of the failure to award TTD for the period in question, we reverse the order herein, and remand for further findings on that issue.
Reversed and remanded with directions.
BARFIELD and DAVIS, JJ., concur.
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Amburgey v. Palm Beach Cnty. Sch. Bd. & Crawford & Co., 712 So. 2d 426 (Fla. 1st DCA 1998)…o work. See Charles v. Suwannee Swifty, 622 So. 2d 114 (Fla. 1st DCA 1993); Garcia-Vina v. U.S. Holiday Health and Recreation, 634 So. 2d 200 (Fla. 1st DCA 1994); Scotty’s v. Boles, 680 So. 2d 524 (Fla. 1st DCA 1996). In Cocho v. Continental Baking, 648 So. 2d 1203 (Fla. 1st DCA 1995), we held that the judge of compensation claims must specifically state in the order that benefits were denied because the claimant knew or should have known that he could return to work. Otherwise, the appellate court has no way…
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Tari Boggs v. USA Water SKI, Inc., 18 So. 3d 610 (Fla. 1st DCA 2009)…turn to work. Otherwise, the appellate court has no way of knowing whether the JCC relied on a lack of medical evidence as to the claimant’s ability, or on the claimant’s imputed knowledge of the clearance to resume work. See Cocho v. Cont’l Baking, 648 So. 2d 1203 (Fla. 1st DCA 1995). Here, the JCC failed to make the appropriate findings to support his denial of TTD benefits for October 19 & 20, 2006 (a period when claimant was on no-work status). Consequently, the denial of benefits for this period is rever…
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Scotty's & United Self Insured Servs. v. Boles, 680 So. 2d 524 (Fla. 1st DCA 1996)…So. 2d 79 (Fla. 1st DCA 1994). However, even absent medical evidence of total disability or an unsuccessful work search, TTD benefits may be awarded where the claimant was never informed of her release to return to work. Cocho v. Continental Baking, 648 So. 2d 1203 (Fla. 1st DCA 1995). In the instant case, Dr. Pearson, the treating physician, issued a work slip to Boles on October 20,1993 indicating that she could return to light-duty work for two weeks. Boles’ own testimony indicates that she was aware of he…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Charles v. Suwannee Swifty and Associated Risk, 622 So. 2d 114 (Fla. 1st DCA 1993)
- Garcia-Vina v. U.S. Holiday Health & Rec. & Aetna Ins. Co., 634 So. 2d 200 (Fla. 1st DCA 1994)
- Holiday Foliage & Crawford & Co., Inc. v. Anderson, 642 So. 2d 94 (Fla. 1st DCA 1994)