Xerographics and Claims Center v. Bender
| Decision Date | 21 March 1990 |
| Docket Number | No. 89-875,89-875 |
| Citation | 558 So.2d 514 |
| Parties | 15 Fla. L. Weekly D787 XEROGRAPHICS AND CLAIMS CENTER, Appellants, v. Brian A. BENDER, Appellee. |
| Court | Florida District Court of Appeals |
Kathleen Hudson and Larry Cangro of Matusek, McKnight, Hudson, & Jaspers, P.A., St. Petersburg, for appellants.
Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellee.
The employer and its carrier appeal a final workers' compensation order in which the Judge of Compensation Claims (JCC) awarded claimant temporary total disability benefits after concluding that claimant was in fact capable of returning to work. The order is erroneous in awarding benefits for temporary total disability. However, for the reasons hereinafter stated, the benefits awarded are affirmable for the claimant's temporary partial disability.
Temporary total disability is generally characterized as the healing period during which the workers' compensation claimant is, by reason of the injury, totally disabled and unable, in any anatomic sense, to work. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). When a worker recovers the physical ability to do some form of work, although limited in kind or amount, and has not yet reached MMI, that worker is no longer considered temporarily totally disabled. Rather, such a worker is considered temporarily partially disabled and may be entitled to TPD wage loss benefits.
Scriven is analogous to the instant case. There, the claimant continued to receive TTD benefits after the treating physician had advised her to return to work. This court held that when an injured worker has recovered the ability to work and is searching for work, but has not yet found gainful employment, and has not yet reached maximum medical improvement, that worker is not entitled to temporary total disability benefits, but, rather, to temporary partial disability benefits during a conscientious search for work until maximum medical improvement is reached. Moreover, the court recognized that simply being able to work and to search for work is not economically equivalent to gainful employment. Therefore, the compensable injury continues temporarily to manifest itself, until maximum medical improvement, in the form of a partial disability for which the workers' compensation law requires commensurate compensation based on actual wage loss. § 440.15(4)(a), Fla.Stat. 1
In the present case, the JCC mischaracterized the benefits to which claimant was entitled during the period at issue as temporary total disability benefits because the evidence established only that the claimant was suffering a temporary partial disability. See Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Shop & Go, Inc. v. Copeland, 549 So.2d 803 (Fla. 1st DCA 1989). Neither claimant's treating physician nor the JCC considered claimant totally disabled. Claimant's treating physician testified that claimant had not reached maximum medical improvement and repeatedly indicated that claimant was in fact capable of sedentary light-duty work. The JCC recognized in his final...
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...(Fla. 1st DCA 1982). The adequacy of the job search is a question of fact for the JCC's determination. See Xerographics and Claims Center v. Bender, 558 So.2d 514 (Fla. 1st DCA 1990); Trujillo v. Southern Wine & Spirits, 525 So.2d 481 (Fla. 1st DCA 1988).3 The JCC noted that "all of the phy......
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...being able to work and search for work, however, is not the economic equivalent of an earning capacity. See Xerographics v. Bender, 558 So.2d 514, 515 (Fla. 1st DCA 1990) (explaining, when worker recovers the physical ability to do some form of work, although limited in kind or amount, and ......
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...to TTD benefits, but he is entitled, upon proof of a conscientious work search, to TPD benefits. Xerographics and Claims Center v. Bender, 558 So.2d 514 (Fla. 1st DCA 1990); Ringling Bros. Barnum and Bailey Circus v. O'Blocki, 496 So.2d 947 (Fla. 1st DCA 1986); and Holiday Care Center v. Sc......
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