HATTIE BONNER, APPELLANT,
v.
MIAMI DADE PUBLIC SCHOOLS/GALLAGHER BASSETT SERVICES, INC., APPELLEE

Fla. 1st DCA | 2014-10-07
No. 1D14-1200
PADOVANO and CLARK, JJ., concur; THOMAS, J., dissents with opinion.
148 So. 3d 152 Florida District Court of Appeal, First District (2014) Positive Treatment
Cited by 5 cases

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Synopsis

In this workers' compensation appeal, the First District Court of Appeal reversed the Judge of Compensation Claims' denial of a $2,000 advance to an injured worker, holding that the claimant met her burden of proof by establishing financial need directly caused by her workplace injury and reduction in earnings.


Holding

Yes, the JCC erred in denying the advance. The claimant met her burden of proof by establishing that her financial difficulty stems solely from the reduction in earnings caused by her workplace injury, and the classification of certain expenses as 'luxuries' is not a proper factor for consideration in determining eligibility for advances under Section 440.20(12)(c)2.


Headnotes

[1] A Judge of Compensation Claims (JCC) may order an advance payment of workers' compensation benefits not exceeding $2,000 upon proof that the claimant has not returned to…

[2] An advance payment of workers' compensation benefits must have a plausible nexus to medical and related financial needs arising from workplace injuries.

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Key Quotes

“The advance must, of course, 'have some plausible nexus to' 'medical and related financial needs arising from workplace injuries.'”

Establishes the legal standard for qualifying for an advance under the statute

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Facts & Procedural History

Claimant was off work for more than 18 months on sick leave due to a workplace injury and returned to work at a reduced pay rate. She requested a $2,0…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying her request for a $2,000 advance. We agree that the JCC erred in denying the advance.

Section 440.20(12), Florida Statutes (2011), permits advances of up to $2,000 on the following proof:

(c) In the event the claimant has not returned to the same or equivalent employment with no substantial reduction in wages or has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent:
2. An advance payment of compensation not in excess of $2,000 may be ordered by any [JCC] ... after giving due consideration to the interests of the person entitled thereto.

The advance must, of course, “have some plausible nexus to” “medical and related financial needs arising from workplace injuries.” ESIS/ACE Am. Ins. Co. v. Kuhn, 104 So.3d 1111, 1114-15 (Fla. 1st DCA 2012). Here, the JCC concluded that “the nexus between the accident and the circumstances suggesting the need for an advance is missing” because Claimant’s “difficulty in managing those [financial] circumstances is unrelated to her workplace injury.” Thus, the JCC has found that Claimant has both a financial need and difficulty in managing her financial circumstances. But from whence does that difficulty spring? Solely from Claimant’s reduction in earnings, which — it is undisputed — is due to her workplace injury.

Claimant’s uncontroverted testimony was that she was off work for “more than 18 months on sick leave,” that she returned to work at a reduction in total pay, and that an advance “would put me up to date ... so that I could put food in my refrigerator, for one thing, gas in my car, and to pay my bills.” By this testimony, which the JCC did not reject, Claimant has met her burden of proof.

The JCC’s conclusion that Claimant’s difficulty in managing her finances is unrelated to her injury is seemingly based on his categorization of some of Claimant’s monthly bills as “luxury expenses.” But whether an item is classified as a “luxury” is not a proper factor for consideration under section 440.20(12)(c)2. These small advances are merely a stopgap to help a claimant avoid defaulting with creditors while awaiting the potential distribution of workers’ compensation benefits, when the reduction in income is caused by the injury. A claimant is not required to live a pauper’s life to be eligible for an advance of up to $2,000 under section 440.20(12)(c)2.

Advances in excess of $2,000 are permitted under subsections 440.20(12)(c)3. and (12)(d), and those subsections mandate that a JCC inquire into the reasonableness of those larger advances. In contradis*154tinction to advances over $2,000, advances in a smaller amount do not permit this inquiry, but involve only a consideration of the claimant’s interests; the burden of proof on the claimant is lighter precisely because the financial burden on the employer or carrier is lighter.

As we made clear in Lopez v. Allied Aerofoam, 48 So.3d 888, 889 (Fla. 1st DCA 2010), “[sjection 440.20(12)(c)2. requires the JCC to consider the ‘interests of the person entitled [to the advance].”’ We distinguish Worthy v. Jimmie Crowder Excavating, 100 So.3d 727 (Fla. 1st DCA 2012), on the ground that there the JCC “was unable to adequately consider Claimant’s interests” without additional evidence, which was Worthy’s burden to produce and prove, whereas here the JCC found he had sufficient evidence to give Claimant’s interests due consideration.

Accordingly, we REVERSE the order denying the advance and REMAND this matter for entry of an order awarding the requested $2,000 advance.

PADOVANO and CLARK, JJ., concur; THOMAS, J., dissents with opinion.

THOMAS, J.,

dissents.

I dissent. This case presents nothing more than a failure of proof on Claimant’s part, who bore the burden of persuasion. See Fitzgerald v. Osceola Cnty. Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (“Claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits.”); Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (“Claimant has the burden to prove entitlement to ... benefits.... Accordingly, Claimant must present evidence the JCC finds persuasive.”). The JCC found that Claimant’s “income and expenses roughly equate,” the record supports that finding, and in the absence of any evidence of specific indebtedness connected to the workers’ compensation case, the JCC properly denied the advance. See Worthy v. Jimmie Crowder Excavating, 100 So.3d 727, 728-29 (Fla. 1st DCA 2012) (noting claimant did not “provide any evidence to show that $2,000, as opposed to something less than that, was appropriate in his situation”). Thus, I respectfully dissent.

Dissent
THOMAS, J.,

THOMAS, J.,

dissents.

I dissent. This case presents nothing more than a failure of proof on Claimant’s part, who bore the burden of persuasion. See Fitzgerald v. Osceola Cnty. Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008) (“Claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits.”); Mitchell v. XO Commc’ns, 966 So. 2d 489, 490 (Fla. 1st DCA 2007) (“Claimant has the burden to prove entitlement to ... benefits.... Accordingly, Claimant must present evidence the JCC finds persuasive.”). The JCC found that Claimant’s “income and expenses roughly equate,” the record supports that finding, and in the absence of any evidence of specific indebtedness connected to the workers’ compensation case, the JCC properly denied the advance. See Worthy v. Jimmie Crowder Excavating, 100 So. 3d 727, 728-29 (Fla. 1st DCA 2012) (noting claimant did not “provide any evidence to show that $2,000, as opposed to something less than that, was appropriate in his situation”). Thus, I respectfully dissent.


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Citator

Cited By

  • Shannon v. Cheney Bros. Inc. & The Travelers, 157 So. 3d 397 (Fla. 1st DCA 2015)
    …We have consistently reviewed orders ruling on requests for an advance payment of compensation as if they were final orders, irrespective of any other claims that may have been pending before the JCC. See, e.g., Bonner v. Miami Dade Public Schools, 148 So. 3d 152 (Fla. 1st DCA 2014) (reversing order denying an advance); ESIS/ACE Am. Ins. Co. v. Kuhn, 104 So. 3d 1111 (Fla. 1st DCA 2012) (reversing order awarding an advance); Worthy v. Jimmie Crowder Excavating, 100 So. 3d 727 (Fla. 1st DCA 2012) (affirming or…

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