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Clarke v. Florida Department of Financial Services

Florida Court of Appeals, First District

July 23, 2019

Frederick Clarke, Appellant,
v.
Florida Department of Financial Services/ The Division of Risk Management, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Date of Accident: October 10, 2003.

          On appeal from an order of the Judge of Compensation Claims. E. Douglas Spangler, Judge.

          Allyson A. McInvale of Brady Law Group, PLC, Tampa, for Appellees.

          Pat T. DiCesare, II, Lakeland, and Bill McCabe, Longwood, for Appellant.

          PER CURIAM.

         In this workers' compensation appeal, Claimant raises three issues. Because competent substantial evidence supports the denial of permanent total disability (PTD) benefits, we affirm the that issue without further comment. We find merit in Claimant's remaining two issues - whether the JCC erred in denying his claim for temporary partial disability (TPD) benefits and whether the JCC erred in denying his related claim for the payment of penalties and interest, as well as attorney's fees and costs from the Employer/Carrier (E/C).

         Background

         In 2003, Claimant injured his neck when a service elevator at Raymond James Stadium came down and hit him on the head when he was assisting the Tampa Police Department in a pre-game sweep of the stadium for bombs. Claimant subsequently underwent a cervical discectomy and fusion in March 2004 under the care of Dr. Amann. Claimant was thereafter referred by Dr. Amann for pain management treatment that began in 2005 under the direction of Drs. Khan and Vargas and continued through at least the time of the February 2018 hearing. Claimant also developed psychiatric symptoms, diagnosed as depression, that required a course of treatment that began in March 2014 with Dr. Pandya.

         As found by the JCC, Dr. Amann opined that Claimant reached neurosurgical maximum medical improvement (MMI) in June 2010, assigned an 8% permanent impairment rating, and assigned permanent work restrictions. Dr. Vargas testified that Claimant reached MMI from a pain management perspective in September 2017, assigned a 10% permanent impairment rating, and also assigned permanent work restrictions. Dr. Pandya opined that Claimant would reach MMI on February 13, 2018, five days post-hearing, and did not assign any permanent psychiatric restrictions. Thus, Claimant reached overall MMI on February 13, 2018.

         After Claimant's release to return to work following his cervical surgery, he worked for several employers. The TPD claim at issue arose following the end of Claimant's employment with his last employer, Mike's Golf Carts, on June 30, 2014. While employed there, Claimant was paid an average of $100 per week. Claimant took off work at the end of June 2014 to attend to matters relating to his father's death, and there was no job available at Mike's Golf Carts on his return. Claimant received temporary benefits at various times since his injury, with the last payment concluding on June 30, 2014. Claimant has not worked since that date.

         The JCC denied the claim for payment of TPD benefits in their entirety from July 1, 2014, and thereafter, on grounds Claimant voluntarily limited his income by not working. Accordingly, the JCC also denied the claims for payment of penalties and interest as well as E/C-paid costs and attorney's fees.

         Analysis

         A JCC's findings in regard to a claim for TPD benefits are reviewed for competent substantial evidence. See Wyeth/Pharma Field Sales v. Toscano, 40 So.3d 795 (Fla. 1st DCA 2010). Whether the JCC used the correct legal standard is reviewed de novo. See Banks v. Allegiant Sec., 122 So.3d 983, 985 (Fla. 1st DCA 2013) ("Our review of an erroneous application of the law is ...


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