MARATHON THEATRE; OLD REPUBLIC INSURANCE COMPANY, APPELLANTS,
v.
JOHN T. CAPPS, APPELLEE
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An employer and workers' compensation insurer appealed an award of permanent partial disability benefits based on loss of wage-earning capacity. The court held that hearings on wage-earning capacity diminution were improper because they occurred before the statutory 90-day testing period following maximum medical improvement had elapsed, and remanded for new proceedings after that period expired.
The court held that it was error to hold hearings on wage-earning capacity diminution during the 90-day testing period mandated by § 440.25(3)(a), Florida Statute (1978). The award of permanent partial disability benefits based on wage-earning capacity loss was reversed, and the award should have been limited to the 15% anatomical disability. The case was remanded for adjudication after the 90-day period elapsed.
[1] A claim for diminution of wage earning capacity in a workers' compensation case does not mature until 90 days after the employee has reached maximum medical improvement.
[2] Hearings on the issue of wage earning capacity diminution are premature if held within 90 days after the employee has reached maximum medical improvement.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“no claim for diminution of wage earning capacity shall mature until 90 days after the employee has reached maximum medical improvement”
Establishes the statutory requirement governing when wage-earning capacity claims become ripe for adjudication
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Join FLexlaw to unlock all legal intelligenceThe employee reached maximum medical improvement on April 25, 1980. Hearings were held on April 28 and June 25, 1980, during which the Deputy heard ev…
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SHAW, Judge.
The employer/carrier appeal a workers’ compensation award of temporary total, temporary partial and permanent partial disability benefits.
In this instance the award .of permanent partial disability benefits based on loss of wage earning capacity is governed by § 440.25(3)(a), Florida Statute (1978), which provides that no claim for diminution of wage earning capacity shall mature until 90 days after the employee has reached maximum medical improvement. The appellants correctly point out that maximum medical improvement was reached on April 25,1980. Hearings were held on April 28 and June 25, 1980. The appellee argues that the order awarding benefits was not entered until July 28, 1980, consequently the claim for wage earning capacity loss was mature at the time of adjudication.
This reasoning misses the point. The obvious purpose of the statute is to allow the claimant a 90-day period after maximum medical improvement in which to test his wage earning capacity. During this testing period it was error for the Deputy to hold hearings on the issue of wage earning capacity diminution. That portion of the order awarding such benefits is reversed. The award of permanent disability compensation should have been restricted to the 15% anatomical disability found by Deputy. The 90-day period having now elapsed the issue of wage earning capacity diminution is ripe for adjudication. The cause is remanded to the Deputy Commissioner for the taking of such additional evidence on the issue as he deems proper and the entry of an order based upon his findings.
Points 1, 2, 3 and 4 are without merit and the order, as it relates to these points, is accordingly affirmed.
SHIVERS and THOMPSON, JJ., concur.
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Auto-Owners Ins. Co. & Speedline Athletic Wear, Inc. v. Am. States Ins. Co. & Gloria Quintana, 402 So. 2d 560 (Fla. 1st DCA 1981)…rst accident. Under Section 440.25(3)(a) Fla. Stat. (1978), since repealed, the claim for permanent disability from the second accident, based upon lost wage earning capacity, was not ripe at the time of the hearing below. Marathon Theatre v. Capps, 396 So. 2d 280 (Fla. 1st DCA 1981). The commissioner found that the employee had properly notified her employer of the second accident. He also found that lack of actual notice prejudiced Auto-Owners due to the inability of the carrier to investigate the acciden…