Vencor Hosp. v. Ahles, No. 98-1030.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPADOVANO.
Citation727 So.2d 968
PartiesVENCOR HOSPITAL and Sentry Claims Service, Appellants, v. Kelly Denise AHLES, Appellee.
Docket NumberNo. 98-1030.
Decision Date11 December 1998

727 So.2d 968

VENCOR HOSPITAL and Sentry Claims Service, Appellants,
v.
Kelly Denise AHLES, Appellee

No. 98-1030.

District Court of Appeal of Florida, First District.

December 11, 1998.


Peter H. Dubbeld and Edwin Kravitz, Jr., of Dubbeld & Kaelber, P.A., St. Petersburg, for Appellants.

David F. Koenig of Barbas, Weed, Koenig, Nunez & Wheeley, Tampa, for Appellee.

PADOVANO, Judge.

Vencor Hospital and Sentry Claims Service, the employer and carrier, appeal a final order awarding temporary partial disability benefits to the claimant, Kelly Denise Ahles. We conclude that the Judge of Compensation Claims erred in awarding disability benefits, because the claimant failed to establish that her loss of earning capacity was caused by a disability as defined in the Workers' Compensation Statute. Therefore, we reverse.

The claimant was injured on September 11, 1995, while she was performing her duties as a licensed practical nurse. She was attempting to restrain a disoriented patient when the patient grabbed her left thumb bending it backwards toward her wrist. At first, the injury appeared to be a sprain, but the swelling and pain persisted, and the claimant eventually consulted an orthopedic hand surgeon who diagnosed the condition as carpal tunnel syndrome. The doctor recommended surgery but the claimant decided to postpone that option until she could determine whether her hand would heal on its own.

After the injury, the claimant worked in the hospital in different jobs within her physical limitations. In December 1996 she was working in a full-time light duty position as a patient care advocate, and then in March 1997 she accepted a position as a department manager of social services. While she was employed in this position, the claimant elected to have the surgery the doctor had originally recommended. She was out briefly to recuperate from the surgery and returned to work on April 29, 1997.

The claimant continued in her position as a social services manager until June 10, 1997, when she was terminated for stealing and forging a hospital check in the amount of $74,307.00. The evidence shows that the claimant was capable of performing her job as a social services manager and that she would not have been terminated from that position had she not stolen the check.

Despite the claimant's termination, the Judge of Compensation Claims ordered the employer and carrier to pay temporary partial disability benefits from June 10, 1997, until October 21, 1997, the date the claimant reached maximum medical improvement. The amount of the partial disability was computed by comparing the applicable percentage

727 So.2d 969
of the claimant's average weekly wage against an assumed total loss of earning capacity. In support of this decision, the judge reasoned that the 1994 revision of the Workers' Compensation Statute contains no mechanism for reducing an award of partial disability benefits based on an employee's misconduct. As the judge explained, the 1994 revision eliminated the deemed earnings provision of the previous statute, see section 440.15(4)(b), Florida Statutes (1993), which had enabled the courts to attribute earning capacity to a worker who was underemployed or terminated for misconduct at work

The employer and carrier argue that the claimant is not entitled to temporary partial disability benefits, because she failed to prove that her loss of earnings was caused by her disability. We agree. Although it is true the claimant lost some earning capacity as a result of the injury to her hand, that disability alone did not cause her earning capacity to drop below the statutory threshold for an award of temporary partial disability benefits.

An injured employee can recover temporary partial disability benefits only if a disability caused by a work-related injury results in a reduction in the employee's earning capacity below the level set by statute. Section 440.15(4)(a), Florida Statutes (Supp. 1994) defines the minimum level as follows:

(a) In case of temporary partial disability, compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn, as compared weekly; however, the weekly benefits may not exceed an amount equal to 66 2/3 percent of the employee's average weekly wage at the time of injury.

In the present case, the claimant was not receiving temporary partial disability benefits when she was working as a social services director even though her salary was reduced in that position as a result of her disability. She was earning less as a social director than she had been earning as nurse, but the difference did not bring her salary below eighty percent of her average weekly wage as a nurse, the beginning point for calculating temporary partial disability.

When the claimant was terminated for misconduct she was unemployed and had no income. At that point, the reduction in her income was enough, from a purely mathematical standpoint, to require the payment of temporary partial disability benefits. However,...

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15 practice notes
  • Jefferson v. Wayne Dalton Corp./Hartford, No. 1D00-2608.
    • United States
    • Court of Appeal of Florida (US)
    • August 10, 2001
    ...disability benefits. A claimant need only prove a causal connection between injury and the loss of income. See Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998). Thus, even though appellant was fired for insubordination, he could still be entitled to benefits if he satisfies the......
  • Sales v. Toscano, No. 1D09-5138.
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 2010
    ...and the subsequent period of diminished earnings by offering evidence of an unsuccessful job search. See e.g., Vencor Hosp. v. Ahles, 727 So.2d 968, 971 (Fla. 1st DCA 1998) (reversing award of TPD where employee with restrictions was able to return to work full-time and earn wages greater t......
  • Fardella v. Genesis Health, Inc., No. 1D05-0376.
    • United States
    • United States State Supreme Court of Florida
    • December 19, 2005
    ...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 ......
  • Barfield v. Universal Forest Products, No. 1D01-250.
    • United States
    • Court of Appeal of Florida (US)
    • April 16, 2002
    ...City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), rev. denied, 458 So.2d 271 (Fla.1984); see also Vencor Hospital v. Ahles, 727 So.2d 968 (Fla. 1st DCA 1998). Indeed, as indicated in Thompson v. City of Jacksonville, 654 So.2d 1178 (Fla. 1st DCA 1995), the judge should consider ......
  • Request a trial to view additional results
15 cases
  • Jefferson v. Wayne Dalton Corp./Hartford, No. 1D00-2608.
    • United States
    • Court of Appeal of Florida (US)
    • August 10, 2001
    ...disability benefits. A claimant need only prove a causal connection between injury and the loss of income. See Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998). Thus, even though appellant was fired for insubordination, he could still be entitled to benefits if he satisfies the......
  • Sales v. Toscano, No. 1D09-5138.
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 2010
    ...and the subsequent period of diminished earnings by offering evidence of an unsuccessful job search. See e.g., Vencor Hosp. v. Ahles, 727 So.2d 968, 971 (Fla. 1st DCA 1998) (reversing award of TPD where employee with restrictions was able to return to work full-time and earn wages greater t......
  • Fardella v. Genesis Health, Inc., No. 1D05-0376.
    • United States
    • United States State Supreme Court of Florida
    • December 19, 2005
    ...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 ......
  • Barfield v. Universal Forest Products, No. 1D01-250.
    • United States
    • Court of Appeal of Florida (US)
    • April 16, 2002
    ...City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), rev. denied, 458 So.2d 271 (Fla.1984); see also Vencor Hospital v. Ahles, 727 So.2d 968 (Fla. 1st DCA 1998). Indeed, as indicated in Thompson v. City of Jacksonville, 654 So.2d 1178 (Fla. 1st DCA 1995), the judge should consider ......
  • Request a trial to view additional results

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