Fardella v. Genesis Health, Inc.

• Decision Date: 19 December 2005
• Docket Number: No. 1D05-0376.,1D05-0376.
• Parties: Kim FARDELLA, Appellant, v. GENESIS HEALTH, INC. d/b/a Brooks Health System and Commercial Risk Management, Inc., Appellees.
• Court: Florida Supreme Court

Page 276

917 So.2d 276

Kim FARDELLA, Appellant, v. GENESIS HEALTH, INC. d/b/a Brooks Health System and Commercial Risk Management, Inc., Appellees.

No. 1D05-0376.

District Court of Appeal of Florida, First District.

December 19, 2005.

George D. Rotchford of Rotchford & Betancourt, P.A., and David A. McCranie of McCranie & Lower, P.A., Jacksonville, for Appellant.

Curt L. Harbsmeier of Harbsmeier, De Zayas, Appel, Harden & De Bari, LLP, Lakeland, for Appellees.

ERVIN, J.

Kim Fardella (claimant) appeals a workers' compensation order in which the judge of compensation claims (JCC) denied certain requested temporary indemnity benefits. We affirm the denial of temporary total or temporary partial disability (TPD) benefits from August 12, 2003, through September 16, 2003, because such determination is supported by competent, substantial evidence based upon the opinion testimony of Dr. Paulo Montiero, a neurosurgeon, who opined that as of July 21, 2003, claimant was at maximum medical improvement with no permanent impairment and no work restrictions. We also affirm the JCC's denial of claimant's request for additional TPD benefits from September 17, 2003, through February 14, 2004, but reverse the denial of such benefits from February 14, 2004, through June 1, 2004.

As for the JCC's denial of additional TPD benefits for the period from September 17, 2003, through February 14, 2004, the date claimant was terminated from employment and the employer/carrier (E/C) ceased paying benefits, Fardella argues the JCC erred in concluding that she had voluntarily limited her income for such period under section 440.15(4)(b), Florida Statutes, because the legislature had deleted such defense from the statute as of January 1, 1994, and thus the defense and its deemed-earnings provision no longer existed when claimant was injured on June 24, 2003. During the time in question, the E/C paid claimant TPD benefits, consistent with the opinion of Dr. Adria Johnson, a pain-management and rehabilitation specialist, who stated that claimant was capable of working 20 hours per week with restrictions.

Although we agree with claimant that the JCC erroneously relied on case law that had construed the statute as it existed before its amendment, i.e., Delchamps v. Page, 659 So.2d 341 (Fla. 1st DCA 1995), and South Florida Water Management District v. Ciacci, 647 So.2d 203 (Fla. 1st DCA 1994), nonetheless, the JCC's denial was supported by medical evidence disclosing that claimant had the capacity to earn no less than the amount of temporary indemnity benefits actually paid her during such time. As this court noted in Vencor Hospital v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998), the amended version of section 440.15(4)(a), Florida Statutes, continues to allow an E/C to compute TPD benefits based upon what a claimant is able to earn, rather than what he or she actually earns, in that the statute pins remuneration on what "the employee is able to earn" postinjury.

We reverse, however, the JCC's denial of any temporary disability benefits from the period February 14, 2004, through June 1, 2004, the date of the hearing, because such denial was grounded neither on the facts presented nor the applicable law. In reaching his determination, the JCC erroneously relied on the provisions of section 440.15(4)(e), Florida Statutes (2003), barring an employee from TPD benefits if he or she "is terminated...