Jack Eckerd Corp. v. Coker
| Decision Date | 01 April 1982 |
| Docket Number | No. AB-326,AB-326 |
| Citation | 411 So.2d 1026 |
| Parties | JACK ECKERD CORPORATION and Travelers Insurance Co., Appellants, v. Clara B. COKER, Appellee. |
| Court | Florida District Court of Appeals |
H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellants.
David H. Levine and Joseph C. Segor, Miami, for appellee.
This workers' compensation appeal involves the employer/carrier's (E/C) appeal of an order awarding temporary total disability (TTD) benefits until the date of maximum medical improvement (MMI) and excusing the failure of the hospital and physician to file bills and medical reports. The claimant has also filed a cross-appeal challenging the constitutionality of § 440.15(3)(b)3.d, Florida Statutes (1980 Supp.). 1 For the reasons set forth below, we reverse on the issues presented by appellant and reject the cross-appeal for lack of standing.
Claimant was injured in a compensable accident on October 5, 1979, when she sustained a sudden pain upon rising from a crouched position. The pain continued, and claimant received permission to leave work early because of it. Later that night she was taken to the emergency room by ambulance and remained in the hospital for the next 18 days. Over the ensuing months, claimant was treated by several doctors. Neither the doctors nor the hospital ever filed medical reports as required by § 440.13, Florida Statutes (1979). On February 24, 1980, she was released for work, but was not rehired by the employer. Thereafter, she actively sought other employment, eventually finding a similar position.
A claim was filed March 20, 1980, to which the employer/carrier did not respond until June 12, 1980, when it filed a notice to controvert. In the order dated February 11, 1981, the deputy commissioner found that claimant was TTD from the date of the accident to July 2, 1980, which was also the date of MMI. He also found that the reason no authorized medical treatment had been provided was that the claim was controverted and he therefore ordered payment of the medical bills. The failure to file the reports was excused because "there has been no showing of any prejudice to the employer/carrier as a result of failure to file same, the claim was controverted in its entirety, and the employer/carrier has likewise failed in its responsibility to file a notice to controvert within specific time limitations." Finally, the deputy commissioner found that claimant was in excess of age 65 on the date of the accident and was therefore not entitled to wage loss benefits because of § 440.15(3)(b)3.d. But the deputy commissioner also held that he would have awarded those benefits to her if the statute had not precluded entitlement because of age.
We do not reach the merits of claimant's cross-appeal challenging the constitutionality of § 440.15(3)(b)3.d because claimant has not shown that she is adversely affected by the statute by proof that she meets all other requirements for that class of benefits. Acme Moving & Storage v. Mason, 167 So.2d 555 (Fla.1964). In this case, the deputy commissioner stated that he would have awarded wage loss benefits but for the challenged statute. However, we find no proof of the necessary statutory conditions for award of such benefits to appellant. Under § 440.15(3)(b)1 and 2, Florida Statutes (1979), a claimant must suffer a specified decrease in earnings as a result of compensable injury before any wage loss benefits are due, because eligibility for such benefits is limited to "95 percent of the difference between 85 percent of the employee's (former) average monthly wage and the salary ... the employee is able to earn" after MMI. Here, the evidence does not indicate that claimant's current earnings are diminished in the amount required as a threshold for wage loss benefits. In addition claimant's testimony indicates that her current employment activities are comparable in every way to the work she was doing prior to her accident. Since claimant relies only on invalidity of the statutory age bar to prove her claim for wage loss after MMI under § 440.15(3)(b)3.d, we conclude she did not show that but for the bar she had a right to benefits, and we decline to determine the constitutionality issue for lack of standing on her part to present the point.
The employer/carrier's appeal challenges the order to pay hospital and doctor bills because the deputy's stated grounds, supra, for excusing authorization and reporting requirements do not constitute good cause. We find merit in this contention and conclude that the order reflects an abuse of...
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