VENDA WEST, APPELLANT,
v.
UNIVERSITY OF MIAMI AND GALLAGHER BASSETT SERVICES, APPELLEES
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In this workers' compensation appeal and cross-appeal, the Florida First District Court of Appeal affirmed in part and reversed in part an order by the Judge of Compensation Claims that awarded some benefits and denied others. The court reversed awards of temporary partial disability benefits found to have been granted after maximum medical improvement was reached, reversed the denial of mandatory penalties on late payment of benefits, and remanded for determination of whether a claim for a plastic surgeon was properly before the court.
The court affirmed most of the JCC's order but reversed the award of temporary partial disability benefits for the period from January 23, 2007, through March 3, 2008, because the claimant had reached maximum medical improvement before that date. The court reversed the JCC's denial of penalties on late payment of temporary partial disability benefits, holding that such penalties are mandatory under the statute. The court remanded for determination of whether the plastic surgeon claim was properly before the JCC and, if so, for a ruling on its merits.
[1] An award of temporary partial disability benefits is improper when the claimant has reached maximum medical improvement prior to the period for which benefits are sought.
[2] Costs and attorney's fees associated with an improperly awarded benefit are also subject to reversal.
Previewing 2 of 5 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“the JCC found Claimant reached maximum medical improvement before January 23, 2007. See § 440.15(4), Fla. Stat. (2005)”
Establishes the basis for reversing the temporary partial disability award—benefits cannot be awarded after maximum medical improvement
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Join FLexlaw to unlock all legal intelligenceClaimant Venda West sought workers' compensation benefits from the University of Miami and Gallagher Bassett Services. The Judge of Compensation Claim…
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ON MOTION FOR REHEARING
We deny Appellant’s motion for rehearing. We grant Appellees’ motion for rehearing to the extent that we withdraw the opinion issued on July 22, 2011, and substitute the following opinion in its place.
In this workers’ compensation appeal and cross-appeal, Claimant and the Employer/Carrier (E/C) both challenge an order of the Judge of Compensation Claims (JCC) that awarded some benefits and denied others. We affirm the order, except as to the following. First, we reverse the award of temporary partial disability benefits for the period from January 23, 2007, through March 3, 2008, because the JCC found Claimant reached maximum medical improvement before January 23, 2007. See § 440.15(4), Fla. Stat. (2005). Second, we reverse the portion of the award of costs and attorney’s fees associated with the aforementioned award. Third, we reverse the denial of penalties on the late payment of temporary partial disability benefits for the period from November 5, 2005, through June 13, 2006, because an award of penalties on late payment of indemnity benefits is not discretionary, but mandatory. See § 440.20(6)(a), Fla. Stat. (2005); Bell v. Univ. of Fla., 652 So.2d 460 (Fla. 1st DCA 1995). See generally Jones v. City of St. Petersburg, 46 So.3d 637 (Fla. 1st DCA 2010) (defining when penalties are due). Fourth, because the JCC failed to determine whether the claim for a plastic surgeon was properly before him, see Univ. of Miami v. West, 8 So.3d 1193, 1194 (Fla. 1st DCA 2009), we remand for a ruling on that issue and, should the JCC determine the claim was indeed properly before him, for a ruling on the merits of the claim for a plastic surgeon.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings as indicated herein.
VAN NORTWICK, WETHERELL and ROWE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bell v. Univ. OF Fla. & Div. of Risk Mgmt., 652 So. 2d 460 (Fla. 1st DCA 1995)
- Univ. OF Miami & Gallagher Bassett Servs. v. Venda West, 8 So. 3d 1193 (Fla. 1st DCA 2009)
- Jones v. City OF ST. Petersburg, 46 So. 3d 637 (Fla. 1st DCA 2010)