WORKERS OF FLORIDA v. Williams

• Decision Date: 15 October 1999
• Docket Number: No. 98-2694.,98-2694.
• Citation: 743 So.2d 609
• Parties: WORKERS OF FLORIDA and AIG Claim Services, Appellants, v. Michael WILLIAMS, Appellee.
• Court: Florida District Court of Appeals

743 So.2d 609

WORKERS OF FLORIDA and AIG Claim Services, Appellants, v. Michael WILLIAMS, Appellee.

No. 98-2694.

District Court of Appeal of Florida, First District.

October 15, 1999.

Brian B. Bolton and Philip R. Augustine of Langston, Hess, Bolton, Znosko & Helm, P.A., Maitland, for Appellants.

No appearance for Appellee.

ON MOTION FOR REHEARING

ERVIN, J.

Appellants seek rehearing of our opinion in Workers of Florida v. Williams, 24 Fla. L. Weekly D1546 (Fla. 1st DCA June 30, 1999). We grant rehearing for the purpose of clarifying our former opinion and substitute the following therefor; the motion is otherwise denied.

In this workers' compensation case, the employer/carrier (E/C) appeals an order awarding claimant a cash advance of $2,000 and raises numerous points for reversal. We affirm all points and address only that issue which contends the judge of compensation claims (JCC) abused his discretion in approving the cash advance, because there was no evidence of legal entitlement to future benefits from which the E/C could recoup the advance.

Claimant suffered a compensable injury consisting of a dislocated right shoulder and complete rotator cuff tear on January 25, 1998. While still recovering from his injury and receiving temporary total disability (TTD) benefits, claimant filed a motion pursuant to section 440.20(12), Florida Statutes (1997), seeking a $2,000 cash advance. In support of his request, he presented evidence showing that he had sustained a substantial change of earning capacity as a result of the industrial injury, which adversely affected his ability to pay rent and utilities. At the time of the hearing, claimant, who did not testify, was just four days post-surgery for repair of the torn rotator cuff. Following the hearing, the JCC granted the $2,000 cash advance and directed repayment thereof at the rate of $20 per week from future TTD or temporary partial disability (TPD) payments or other income benefits.

The E/C argues that the JCC erred in ordering the advance because there is no evidence indicating that claimant would be eligible to receive any benefits in the future from which the E/C could recover the sum advanced. As there was no finding of permanent disability, the E/C further contends that claimant is not eligible for benefits other than TTD or TPD and continued payment of same is speculative, at best. Finally, it urges that a cash advance prior to permanent disability is premature, and it cites Murphree Bridge Corp. v. Brown, 492 So.2d 451 (Fla. 1st DCA 1986), in support thereof.

We cannot agree with the E/C's contentions. First, from a plain reading of section 440.20(12)(c), governing advance payments of compensation not exceeding $2,000, we find nothing therein requiring proof that an injured worker must achieve in the reasonably foreseeable future some type of permanent disability status. Subsection (12)(c) allows an advance simply upon a claimant's showing that he or she has suffered either a substantial loss of earning capacity or a physical impairment. As for the employer's reliance on Murphree, we find the facts therein significantly distinguishable from those at bar. In Murphree, the employee sought a cash advance from future wage-loss benefits, pursuant to section 440.20(13)(d), Florida Statutes (1981), which required, similar to section 440.20(12)(d), Florida Statutes (1997), discussed infra, as to cash advances of more than $2,000 and not in excess of $7,500, that the deputy commissioner must find "that such advance payment is for the best interests of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances." The court reversed the cash advance on the theory that "there is no identifiable indebtedness associated with the wage-loss provisions [providing that liability for payment of same accrues monthly] which could support an award of an advance payment which encompasses an amount more than the amount due as a monthly benefit." Murphree, 492 So.2d at 453.

The effect of the Murphree decision was that until the claimant could be determined eligible for permanent total disability benefits, he or she could not receive a cash advance from future wage-loss payments, because the employer's obligation to furnish such wage-loss benefits was determined monthly and could end at any time once claimant regained a wage-earning capacity....