Turner v. Rinker Materials

• Decision Date: 22 July 1993
• Docket Number: No. 91-3708,91-3708
• Citation: 622 So.2d 80
• Parties: 18 Fla. L. Week. D1736 Leroy TURNER, Appellant, v. RINKER MATERIALS and Liberty Mutual Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 80

622 So.2d 80

18 Fla. L. Week. D1736

Leroy TURNER, Appellant, v. RINKER MATERIALS and Liberty Mutual Insurance Company, Appellees.

No. 91-3708.

District Court of Appeal of Florida First District.

July 22, 1993.

Edward H. Hurt, Jr., Orlando, Bill McCabe, Longwood, for appellant.

Elizabeth C. Wheeler of Johnson and Bussey, P.A., Orlando, for appellees.

SMITH, Judge.

Claimant appeals an order of the judge of compensation claims (JCC) denying, in part, his claim for temporary partial disability (TPD) and wage loss (WL) benefits on the grounds of res judicata and failure to report pursuant to the newly amended section 440.15(3)(b)2., Florida Statutes (Supp.1990). We affirm in part and reverse in part. We affirm without further comment the cross-appeal of the employer/carrier (E/C) contending that the JCC should have allowed an offset for pension benefits provided by the employer. Domutz v. Southern Bell Telephone & Telegraph Co., 339 So.2d 636 (Fla.1976).

Claimant, a truck driver for Rinker or its predecessor for 40 years, injured his back on December 17, 1987 during a physical examination required by state law. He was placed on a no-work status continuing through his retirement in March 1988 until June 1988 when his treating chiropractor, Dr. Poss, returned him to light duty. He filed a claim seeking all benefits due. Dr. Poss was of the opinion that claimant reached maximum medical improvement (MMI) on October 7, 1988 and had suffered a permanent impairment as the result of his accident. The E/C controverted the claimant's WL requests for the periods 6/20/88 through 8/14/88. In fact, according to the claims adjuster, the whole case was controverted.

Prior to the hearing held on February 13, 1989, claimant submitted a pretrial stipulation limiting his claim to temporary total disability (TTD) benefits from the date of accident to 6/20/88. Thereafter, the JCC entered a compensation order finding the claimant did not suffer a compensable injury because the injury occurred during a physical examination required by state law. This court reversed. Turner v. Rinker Material Corp., 554 So.2d 647 (Fla. 1st DCA 1989). Because the JCC had erroneously determined the compensability issue, and accordingly "failed to make the necessary evidentiary findings presented," the court reversed and remanded for further proceedings. Id. at 649. After a subsequent hearing held on September 24, 1990, the JCC entered an order on November 27, 1990, finding that claimant was TTD from December 18, 1987 until June 20, 1988.

Claimant continued to treat with Dr. Poss. He was on light duty work status until a back episode on November 20, 1990 led Dr. Poss to return him to TTD status. Dr. Poss causally related claimant's condition to his 1987 accident. Claimant continued on TTD status until March 28, 1991 when Dr. Poss again released him to light duty work. Claimant engaged in an unsuccessful job search and began keeping a job search list after December 1990.

After the JCC's November 27 order finding the accident compensable and awarding benefits, counsel for claimant sent a packet of WL requests for the period August 15, 1988 to December 2, 1990 to the E/C, which the claims adjuster received on January 25, 1991. The E/C controverted the wage loss requests.

In the meantime, the 1990 Legislature amended section 440.15(3)(b)2. With the new provision inserted the statute provides in pertinent part:

Wage-loss forms and job search reports are to be mailed to the employer, carrier, or servicing agent within 14 days after the time benefits are due. Failure of an employee to timely request benefits and file the appropriate job search forms showing that he looked for a minimum of five jobs in each biweekly period (unless the judge of compensation claims determines fewer job searches are justified due to the availability of suitable employment) after the employee has knowledge that a job search is required, whether he has been advised by the employer, carrier, servicing agent, or his attorney, shall result in benefits not being payable during the time that the employee fails to timely file his request for wage loss and the job search reports.

This provision became effective July 1, 1990.

On February 5, 1991, claimant filed another claim for benefits. In the pretrial stipulation, claimant indicated he was seeking TPD benefits from 8/15/88 to 9/30/88, WL from 10/1/88 through 11/19/90, TTD from 11/20/90 through 3/28/91, and WL from 3/29/91 to the present and continuing. At the subsequent hearing, claimant, who presently receives social security and pension benefits, testified he has looked for work as a truck driver but cannot find a job. Claimant testified that he never got a letter from the E/C advising him of his rights or telling him to conduct a job search and that the E/C never sent him any requests for WL forms. The record is devoid of evidence that claimant was appropriately advised of his rights and responsibilities under the workers' compensation law, particularly his responsibility subsequent to July 1, 1990, to file WL forms within 14 days after benefits are due in order to receive compensation.

Thereafter, the JCC entered the order appealed, ruling claimant's claim for TPD benefits from 8/15/88 to 9/30/88 and for WL benefits from 10/1/88 to 9/24/90 were barred on the grounds that they were ripe for determination and were not presented at prior hearings. The JCC found that claimant was not entitled to wage loss benefits after July 1, 1990 based on the provisions of section 440.15(3)(b)2., Florida Statutes (Supp.1990). The JCC awarded claimant TTD benefits from 11/20/90 through 3/28/91.

In rejecting the claim for WL benefits after July 1, 1990, the JCC considered the fact that no wage loss letter was directed to the claimant by the E/C. However, she found that section 440.15(3)(b)2. contemplates that injured employees may be advised of the necessity of requesting benefits and filing appropriate job search forms by their own attorneys. She took judicial notice of the fact that claimant has been represented by an attorney since early 1988, and assumed that counsel was aware of the statutory amendment and communicated the requirement of timely completion of wage loss forms and job search reports to the claimant.

We agree with the JCC that the claims for TPD benefits from 8/15/88 to 9/30/88, and WL benefits for the periods 10/1/88 to the date of the first hearing, February 13, 1989, ¹ are barred because the claims were mature at the time of the first hearing and could have and should have been determined at that hearing. The general rule, with a few exceptions not pertinent here, is that a claim that is mature at the time of an earlier proceeding will be subsequently barred by its omission from that proceeding. State Department of Transportation and Division of Risk Management v. Greene, 599 So.2d 1368, 1370 (Fla. 1st DCA 1992); Florida Power & Light Co. v. Haycraft, 421 So.2d 674 (Fla. 1st DCA 1982); and Hunt v. International Minerals and Chemicals Corp., 410 So.2d 640 (Fla. 1st DCA 1982). We reject claimant's contention that these benefits were not ripe for adjudication on February 13, 1989 because the E/C were not on notice of his entitlement thereto and therefore the time periods for payment of benefits did not begin to run. The E/C had notice of the claimed WL, as the claims adjuster for the carrier admitted receiving wage loss requests from 6/20/88 through 8/14/88. Further, both parties were on notice of Dr. Poss's October 13, 1988 deposition in which he opined that claimant was able to return to light duty as of June 1988 and reached MMI on October 7, 1988.

However, we reverse the remainder of the JCC's order denying WL after the hearing on February 13, 1989. Wage loss up through July 1, 1990, the effective date of section 440.15(3)(b)2., is not precluded by the claimant's failure to pursue this wage loss at the remand hearing on September 24, 1990. In Turner v. Rinker Material Corp., 554 So.2d at 649, this court remanded so that evidentiary findings on issues presented in the February 13, 1989 hearing--but not determined due to the JCC's noncompensability ruling--could be made. Upon remand, a workers' compensation case goes back to the same condition as if the order reviewed had not been entered. Dade County School Board v. Jackson, 473 So.2d 1356, 1357 (Fla. 1st DCA 1985). Unless the appellate court expressly restricts the JCC on remand, the JCC may exercise sound quasi-judicial discretion to allow additional testimony, or to reconsider the evidence previously received in light of the appellate decision. Id. In other words, the JCC may exercise sound quasi-judicial discretion to either confine the inquiry on remand to matters and issues taken up in the first hearing, or to allow new evidence as to matters occurring subsequent to the first hearing. In this case, the remand hearing held on September 24, 1990 was limited in scope to claimant's claim for TTD benefits from the date of accident until June 20, 1988, authorization and payment of Dr. Poss's bills, costs, interest, penalties and attorney's fees. No additional evidence was presented at the hearing. Rather, the evidence consisted of the record of the hearing on February 13, 1989 and this court's appellate decision dated December 29, 1989.

The E/C's reliance on Holland v. Courtesy Corp., 569 So.2d 780 (Fla. 1st DCA 1990) for a contrary result is misplaced. That case involved an award of PTD that was reversed and remanded for further proceedings. On remand, the JCC limited the admissible evidence to that probative of appellant's condition as of the date of the first hearing on October 1, 1987. The remand order declined to award PTD benefits. On appeal, this court did not rule that the JCC had committed error in restricting the remand hearing to the claimant's entitlement to PTD benefits as of the date of the first hearing, October 1, 1987. Ultimately, the...