Auman v. Leverock's Seafood House
| Decision Date | 16 December 2008 |
| Docket Number | No. 1D07-6297.,1D07-6297. |
| Citation | 997 So.2d 476 |
| Parties | Kathleen AUMAN, Appellant, v. LEVEROCK'S SEAFOOD HOUSE, Leverock's Restaurant/Spectrum HR LLC, Providence Property & Casualty Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Brian O. Sutter, Port Charlotte; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
In this case of first impression, we reverse a compensation order insofar as it cut off Kathleen Auman's temporary total disability benefits after only eleven weeks, even though her temporary disability persisted at the time of the hearing on the claim for benefits. There is no statutory authority for such a cutoff. See Thorkelson v. N.Y. Pizza & Pasta Inc., 956 So.2d 542, 543-44 (Fla. 1st DCA 2007) .
While working as a waitress, it was Ms. Auman's misfortune to suffer two separate and unrelated industrial accidents. The first was on October 17, 2004, when she slipped and fell to her knees. The second took place ten days later when she again slipped and fell, this time backwards, landing on her elbow, and fracturing the head of her right humerus. The doctor who saw her in the wake of the fall backwards on October 27, 2004, took her off work because of the injury to her right arm, and recommended surgery to repair the fracture. The judge of compensation claims found "that the accident of October 27, 2004 resulted in injuries to the claimant's right arm and elbow and that [at least as of the hearing on November 7, 2007] she ha[d] remained temporarily disabled as a result of those injuries since that date."
She had already been accepted as temporarily disabled on account of the injury to her arm and elbow sustained in her second accident1 when magnetic resonance imaging revealed "bilateral patellar [chondrosis], secondary to trauma" suffered in the initial accident on October 17, 2004. On January 12, 2005, the physician treating her knees recommended separate surgery to ameliorate that condition, and advised her to remain off work until knee surgery had been performed. At the time, this advice had no result whatsoever on any party's behavior or any other practical effect. Ms. Auman had already been taken off work and no surgery of any kind was authorized before the compensation order under review was entered.
The restaurant and its insurance carrier take the position here as below that, instead of up to 104 weeks of temporary disability payments during recovery from the knee injuries,2 she should receive a mere eleven weeks3 of benefits. Nothing in the language of the statute supports their position. Section 440.15(2)(a), Florida Statutes (2004), authorizes disability benefits for up to 104 weeks for any temporary disability of which an industrial accident is the major contributing cause. See Okeechobee Health Care v. Collins, 726 So.2d 775, 777 (Fla. 1st DCA 1998). The Workers' Compensation Act defines disability as "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury," § 440.02(13), Fla. Stat. (2004), and provides, in pertinent part:
... in case of disability total in character but temporary in quality, 66 2/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks.... Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker's permanent impairment shall be determined.
§ 440.15(2)(a), Fla. Stat. (2004). The compensation order under review unjustifiably limited the 104 weeks of temporary disability benefits available to a loyal employee who returned to work after one industrial accident, only to suffer another, wholly unrelated industrial accident that was the major contributing cause of another, wholly unrelated disability. (We are not concerned in the present case with multiple injuries from a single industrial accident or subsequent aggravation of an initial injury.) The statute contains no language truncating the 104-week period for the benefit of employers whose failure to deal with slippery floors leads to multiple industrial accidents. Ms. Auman suffered altogether separate and distinct industrial accidents, and sustained separate and distinct injuries, which led to separate and distinct disabilities, as defined by statute.
The compensation order severed "disability" from its statutory moorings. Under the statute, "disability" is defined as "incapacity because of the injury," § 440.02(13), Fla. Stat. (2004), not as "incapacity" in some amorphous, disembodied sense disassociated from a particular industrial accident and the injury that accident caused. Because of the injury she suffered in her first industrial accident on October 17, 2004, Ms. Auman suffered a disability in her lower extremities. Because of the injury she suffered in her second industrial accident on October 27, 2004, her right arm was disabled.
As to each of these distinct, temporary disabilities, so long as the relevant industrial accident was and remained the major contributing cause, she was entitled to temporary disability compensation benefits for, as to each, up to a total of 104 weeks. We have already rejected the "calendar" interpretation of the 104-week statutory cap in favor of the "bank" interpretation. See Cooper v. Buddy Freddy's Rest., 889 So.2d 125, 126 (Fla. 1st DCA 2004) (...
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