DONALD CAMPBELL, APPELLANT,
v.
L & C CONSTRUCTION AND AMERICAN INTERSTATE INS. CO., APPELLEES
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The court held that the judge of compensation claims erred in failing to award the difference in benefits based on the correct average weekly wage and in denying temporary total disability benefits when there was no evidence the claimant's work status had changed. The court affirmed other findings.
[1] A workers' compensation claimant is entitled to the difference between previously paid benefits calculated at an erroneous average weekly wage and benefits calculated at…
[2] Temporary total disability benefits should be awarded until competent substantial evidence establishes a change in a claimant's work status or release to return to work.
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Join FLexlaw to unlock all legal intelligenceThe claimant challenged a final order in a workers' compensation case, raising five issues. The judge of compensation claims (JCC) determined a higher…
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WOLF, C.J.
In this workers’ compensation appeal, claimant, Donald Campbell, challenges a final order raising five issues.
We find that two issues regarding appellant’s past benefits have merit and reverse and remand for a recalculation of these benefits.
We affirm all other findings in the order.
First, the judge of compensation claims (JCC) found that appellant’s average weekly wage (AWW) was $679.04, and not $640.00, which appellant’s employer L & C Construction used to calculate previously paid benefits. The JCC failed, however, to award appellant the difference between the previously paid benefits calculated at the lower (and. erroneous) AWW figure and the benefits calculated at the proper $679.04 AWW figure.
We reverse and remand for entry of an order awarding appellant the difference between what he received and what he would have received had his compensation rate been based on the AWW determined by the JCC. See generally, Whitner v. Boulevard Tire Ctrs., 812 So. 2d 592 (Fla. 1st DCA 2002).
Second, appellant sought temporary partial or temporary total disability (TPD or TTD) benefits from June 15, 2001, through the date of the hearing. Although the JCC found that TTD benefits were warranted because appellant’s treating physician found he was unable to work, the JCC ultimately held that appellant was not entitled to such, benefits after May 24, 2001. There is no competent substantial evidence establishing that appellant’s work status had changed on that date or at anytime prior to January 29, 2002.
Thus TTD benefits should have been awarded until January 29, 2002. See Amburgey v. Palm Beach County Sch. Bd., 712 So. 2d 426 (Fla. 1st DCA 1998) (finding that evidence a claimant is able to return to work is not sufficient to deny TTD benefits absent evidence claimant was informed or should have known that he or she was released to work). We remand for the JCC to grant TTD benefits until January 29, 2002. On remand, the JCC should calculate the benefits at the AWW of $679.04. See § 440.15(2), Fla. Stat. PADOVANO and POLSTON, JJ„ concur.
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Urquiza v. DON Greene Poultry, Inc., 81 So. 3d 545 (Fla. 1st DCA 2012)…imony she was unable to work). Because Claimant submitted such evidence here, the burden shifted to the E/C to submit evidence that Claimant’s work status had in fact changed from total disability to partial disability. See Campbell v. L & C Const., 869 So. 2d 708, 708-09 (Fla. 1st DCA 2004) (reversing JCC’s denial of TTD benefits because no competent evidence supported change in work status). Even if evidence of a change in status is submitted, TTD benefits must be awarded if the record lacks evidence that t…
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Authorities Cited
- Amburgey v. Palm Beach Cnty. Sch. Bd. & Crawford & Co., 712 So. 2d 426 (Fla. 1st DCA 1998)
- Whitner v. Boulevard Tire Ctrs. & Safeco Ins. Co., 812 So. 2d 592 (Fla. 1st DCA 2002)