HOME DEPOT AND SEDGWICK CMS, APPELLANTS,
v.
LUCY TURNER, APPELLEE
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In this workers' compensation case, the court affirmed an award of permanent total disability (PTD) benefits to an injured employee, holding that the employer/carrier bears the burden of proving the employee has substantial earning capacity as an affirmative defense to PTD liability.
The claimant established PTD eligibility by proving a catastrophic injury as defined by statute. The employer/carrier bears the burden of demonstrating by conclusive proof that the claimant maintains substantial earning capacity as an affirmative defense to PTD liability. Since the employer/carrier failed to present such conclusive proof, the PTD award was proper.
[1] Permanent total disability benefits are only available to claimants with catastrophic injuries.
[2] A catastrophic injury, for purposes of permanent total disability benefits, is one of a nature and severity qualifying an employee for federal Social Security Act disabil…
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Join FLexlaw to unlock all legal intelligence“Only a catastrophic injury as defined in s. 440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability.”
Establishes the statutory test for PTD eligibility requiring both catastrophic injury and absence of conclusive proof of substantial earning capacity
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Join FLexlaw to unlock all legal intelligenceAn employee suffered an industrial injury that qualified as a catastrophic injury under Florida law, with impairment related to the industrial acciden…
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KAHN, J.
In this workers’ compensation case, the employer and carrier (E/C) challenge the award below both of permanent total disability (PTD) benefits and of an authorized primary care physician for appellee’s benefit. We affirm and address briefly the issue concerning PTD.
The parties agree that the standard for PTD is that set out in section 440.15(l)(b), Florida Statutes (1995):
Only a catastrophic injury as defined in s. 440.02 shalj, in the absence of conclusive proof of a substantial earning capacity, constitute permahent total disability. Only claimants with catastrophic injuries are eligible for permanent total disability benefits. In no other case may a permanent total'disability be awarded.
Claimant proved the catastrophic injury requirement to the satisfaction of the JCC by adducing evidence that claimant’s impairment was related to her industrial accident-and moreover that the injury was “of a nature and severity that would qualify an employee to receive disability income benefits under Title II ... of the federal Social Security Act .... ” § 440.02(34)(f), Fla. Stat. (1995).
The E/C do not seriously challenge the JCC’s finding that claimant suffered a catastrophic injury, as required by the Workers’ Compensation Act. Nevertheless, the E/C argue, with reference to section 440.15(l)(b), that claimant has not met her burden of proving entitlement to PTD benefits because she has not demonstrated, in the language of the statute, “absence of conclusive proof of a substantial earning capacity.”
The E/C’s argument is based upon an incorrect assumption concerning the burden of proof. As claimant points out, the language of section 440.15(1)(b), “in the absence of conclusive proof of a substantial earning capacity,” was intended by the Legislature-to create an affirmative defense to the E/C’s liability for PTD. See Bob Wilson Dodge v. Mohammed, 692 So. 2d 287, 289 (Fla. 1st DCA 1997). The E/C had the burden to demonstrate, by the conclusive proof required statutorily, that claimant maintained a substantial earning capacity despite her impairment. The E/C failed to come forward with such proof and, accordingly, the JCC correctly awarded the benefits sought.
AFFIRMED.
WEBSTER and DAVIS, JJ., concur.
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Cortina v. State of Florida-Dept. OF HRS & Div. of Risk Mgmt., 901 So. 2d 273 (Fla. 1st DCA 2005)…issue II without further discussion, and we affirm as to issue III, noting that this court has consistently recognized and upheld the Legislature’s prerogative as to evidentiary issues in workers’ compensation cases. See, e.g., Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st DCA 2002) (approving the statute’s requirement for “conclusive proof of a substantial earning capacity” as the claimant’s burden of proving entitlement to perma^ nent total disability benefits). As to issue I, the JCC denied claimant’s re…
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Merlin Houck v. LEE Cnty. Bd. OF Cnty. Comm'rs & Gallagher Bassett Servs., Inc., 995 So. 2d 1102 (Fla. 1st DCA 2008)…(1995). Under the “catastrophic injury” test, once a claimant has established that his workplace injury is catastrophic, the burden shifts to the employer/carrier to offer conclusive proof of a substantial earning capacity. See Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st DCA 2002). If there is no conclusive proof of a substantial earning capacity, then permanent total disability benefits should be awarded. Because the JCC applied an incorrect legal standard, we reverse the denial of permanent total disabi…
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Wal-Mart Stores Inc. v. Thompson, 974 So. 2d 516 (Fla. 1st DCA 2008)…at the injury complained of was “of a nature and severity that would qualify an employee to receive disability income benefits under Title II ... of the federal Social Security Act.” § 440.02(34)(f), Fla. Stat. (1995); see also Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st DCA 2002). The date of injury here was October 7, 2005, and accordingly, the revised version of section 440.15 applies. Under that version, “in order to obtain permanent total [*517] disability benefits, the employee must establish that h…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dodge v. Shaffie Mohammed, 692 So. 2d 287 (Fla. 1st DCA 1997)