Florida Community Health Center v. Ross

• Citation: 590 So.2d 1037
• Decision Date: 17 December 1991
• Docket Number: No. 91-145,91-145
• Parties: FLORIDA COMMUNITY HEALTH CENTER and Florida Insurance Guaranty Association, Appellants, v. Annie Sue ROSS, Appellee. 590 So.2d 1037, 17 Fla. L. Week. D45
• Court: Court of Appeal of Florida (US)

Page 1037

590 So.2d 1037

FLORIDA COMMUNITY HEALTH CENTER and Florida Insurance Guaranty Association, Appellants, v. Annie Sue ROSS, Appellee.

No. 91-145.

590 So.2d 1037, 17 Fla. L. Week. D45

District Court of Appeal of Florida First District.

Dec. 17, 1991.

Patrick J. Malone of Vernis and Bowling, P.A., Jupiter, for appellants.

Daniel J. Sullivan, Miami and Laurence F. Leavy, North Miami Beach, for appellee.

SMITH, Judge.

The employer, Florida Community Health Center, and Florida Insurance Guaranty Association (FIGA) appeal an order of the Judge of Compensation Claims (JCC) determining claimant's average weekly wage (AWW) and awarding claimant permanent total disability (PTD) benefits and wage loss benefits for two two-week periods, with interest. Because the JCC increased claimant's AWW, the employer and FIGA were ordered to adjust all past due compensation benefits, and pay penalties and interest. We affirm the JCC's order with one exception. Section 631.57(1)(b), Florida Statutes (1989), prohibits the award of prejudgment interest and penalties against FIGA. Accordingly, that portion of the order awarding penalties and interest against FIGA is reversed and the cause is remanded to the JCC for further proceedings.

The JCC's determination that claimant is PTD is based upon considerable evidence in the record. Although claimant is capable of light duty employment, she performed a lengthy and exhaustive job search and was unable to obtain employment within her limitations, thereby proving her total disability. H.S. Camp & Sons v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984). Contrary to appellants' assertions, we find that the 1990 amendment to section 440.15(1)(b) requiring a 100 mile work search is not applicable. See GCC Beverages v. Simmons, 571 So.2d 59 (Fla. 1st DCA 1990) (1990 amendment to section 440.15(3)(b)2. prescribing a minimum of five job contacts in each biweekly period was a substantive amendment which would not be applicable to an earlier injury); see also City of Clermont v. Rumph, 450 So.2d 573, n. 4 (Fla. 1st DCA 1984), petition for review denied 458 So.2d 271 (Fla.1984) (even procedural burden of proof enactments may not be applicable to periods of claimed wage loss occurring prior to enactment's effective date). Similarly, in calculating claimant's AWW, the JCC did not err in refusing to apply the 1987 amendment to section 440.02, regarding evaluation of noncash compensation, to this 1984 accident. Anello v. Friendship Village Convalescent Home, 546 So.2d 1119 (Fla. 1st DCA 1989); and Recon Paving, Inc. v. Cook, 439 So.2d 1019 (Fla. 1st DCA 1983).

However, section 631.57(1)(b) prohibits the award of prejudgment interest and penalties on the adjustment of AWW against FIGA, which took over management of this claim in 1987 after the employer's workers' compensation carrier became insolvent. Spenco Industries v. Molano, 537 So.2d 1016 (Fla. 1st DCA 1988); and Carballo v. Warren Manufacturing Co., 407 So.2d 603 (Fla. 1st DCA 1981). Claimant argues that while section 631.57(1)(b) provides that FIGA is not subject to penalties and interest, this statute can be construed as meaning simply that FIGA is not responsible for penalties and interest caused and incurred by the employer before FIGA took over. Because FIGA is responsible for attorney's fees based upon its own bad faith handling of claims after it assumed responsibility, claimant contends that it should also be responsible for penalties and interest which were caused by FIGA's mishandling of the claim directly. In making this argument, claimant overlooks that in Florida Insurance Guaranty Association v. Renfroe, 568 So.2d 962 (Fla. 1st DCA 1990) wherein this court...