MIRIAM GARCIA-VINA, APPELLANT,
v.
U.S. HOLIDAY HEALTH AND RECREATION AND AETNA INSURANCE COMPANY, APPELLEES
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Garcia-Vina appeals a workers' compensation judge's decision awarding her temporary partial disability (TPD) benefits instead of temporary total disability (TTD) benefits. The Florida appellate court reversed, holding that because no physician ever released Garcia-Vina to return to work, she was entitled to TTD benefits despite medical evidence suggesting she could work with restrictions.
TTD benefits must be awarded where no physician has communicated to the claimant that she was released to return to work, even if medical evidence shows the claimant could perform work with certain restrictions. The absence of a physician's release to return to work is determinative, regardless of the claimant's theoretical ability to work.
[1] Temporary total disability benefits are awardable when a claimant's physicians have not released them to return to work, even if physicians later testify the claimant cou…
[2] A claimant may be awarded temporary total disability benefits when physicians have not communicated to the claimant that they are released to return to work.
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“TTD benefits should nevertheless be awarded where it is shown that claimant's physicians never communicated to the claimant that he or she was released to return to work.”
Establishes the core rule that physician silence on release to work entitles claimant to TTD benefits
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGarcia-Vina suffered an industrial accident and was directed to stop working. Eight physicians examined or treated her over the relevant periods but n…
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ERVIN, Judge.
In this workers’ compensation appeal, claimant, Miriam Garcia-Vina, challenges an order of the judge of compensation claims (JCC), awarding her temporary partial disability (TPD) benefits rather than temporary total disability (TTD) benefits for the periods from November 19,1984 through January 24, 1985, February 5, 1985 through March 11, 1985, and January 31, 1986 through November 18,1991, and denying all indemnity benefits from March 11,1985 through January 30, 1986. We agree with appellant and reverse.
In his final order, the JCC specifically found that none of the eight physicians who examined or treated claimant since she was directed to stop working after her industrial accident had ever released her to return to work. The JCC disregarded the implications of this finding, however, and declined to award claimant TTD benefits for the above periods. This was error. TTD benefits are generally not awardable if, as in the case at bar, there is medical evidence that claimant is able to perform work with some restrictions.1 T.E. James Constr. Co. v. Hartley, 616 So. 2d 548, 549 (Fla. 1st DCA 1993).
Typically, this rule pertains to situations wherein claimants have been advised by their physicians to return to work. See, e.g., Tampa Gen. Hosp. v. Lawson, 547 So. 2d 260, 261-62 (Fla. 1st DCA 1989); University of Fla. v. Stone, 553 So. 2d 359, 360 (Fla. 1st DCA 1989); Seibert v. Pierce, Poole & Kent Co., 478 So. 2d 500, 500-01 (Fla. 1st DCA 1985); Daytona Linen Serv. v. Davis, 454 So. 2d 46, 48 n. 1 (Fla. 1st DCA 1984).
The above rule does not apply, however, if, as here, no such advice has been obtained. This court has repeatedly held that even in the absence of medical evidence that a claimant was TTD or that claimant searched for but could not find work, TTD benefits should nevertheless be awarded where it is shown that claimant’s physicians never communicated to the claimant that he or she was released to return to work. Indeed, TTD benefits may be awarded despite the testimony of a claimant’s physician that claimant was able to perform work with certain restrictions, as occurred herein. Croft v. Donna Jean Packing Co., 579 So. 2d 146, 148 (Fla. 1st DCA 1991); Davis v. Phillips & Jordan, 483 So. 2d 534, 535-36 (Fla. 1st DCA 1986); Grey v. Eastern Airlines, Inc., 480 So. 2d 1341, 1343 (Fla. 1st DCA 1985), review denied, 492 So. 2d 1331 (Fla.1986); Daytona Linen Serv. v. Davis, 454 So. 2d 46, 48 (Fla. 1st DCA 1984); Fulmer-Orlando v. Taylor, 419 So. 2d 734, 735 (Fla. 1st DCA 1982).
This court most recently reiterated and reaffirmed this principle in Charles v. Suwannee Swifty, 622 So. 2d 114, 115 (Fla. 1st DCA 1993) (claimant cannot be denied TTD benefits once physicians failed to inform her she was released to work, “even assuming retrospective testimony that claimant could have worked during this period”).
We reverse those portions of the JCC’s order awarding TPD benefits or denying benefits altogether, and remand with directions to the JCC to award TTD benefits from November 24, 1984 through November 18, 1991, except for those periods during which claimant was working, for which she is entitled to TPD benefits, based on her earnings.
REVERSED and REMANDED.
MICKLE and DAVIS, JJ., concur. . A claimant may also establish TTD by proving an unsuccessful work search. This was not available to claimant, because she was not informed of the job-search requirement until November 1991.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pearson v. Paradise Ford & Comp Options Ins., 951 So. 2d 12 (Fla. 1st DCA 2007)…in workers’ compensation cases “that even in the absence of medical evidence” of a claimant’s disability, a claimant is nonetheless entitled to benefits if he has not been advised to return to work. Garcia-Vina v. U.S. Holiday Health and Recreation, 634 So. 2d 200, 201 (Fla. 1st DCA 1994); Amburgey v. Palm Beach County School Bd., 712 So. 2d 426, 427 (Fla. 1st DCA 1998). While Dr. Munson did opine in his letter of December 4, 2004, that claimant could work light duty, there is no proof that this letter was re…
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Amburgey v. Palm Beach Cnty. Sch. Bd. & Crawford & Co., 712 So. 2d 426 (Fla. 1st DCA 1998)…disability benefits in the absence of evidence the claimant was informed or should have known that he or she was released to work. See Charles v. Suwannee Swifty, 622 So. 2d 114 (Fla. 1st DCA 1993); Garcia-Vina v. U.S. Holiday Health and Recreation, 634 So. 2d 200 (Fla. 1st DCA 1994); Scotty’s v. Boles, 680 So. 2d 524 (Fla. 1st DCA 1996). In Cocho v. Continental Baking, 648 So. 2d 1203 (Fla. 1st DCA 1995), we held that the judge of compensation claims must specifically state in the order that benefits were de…
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Perfecto Cocho v. Cont'l Baking & Travelers Ins. Co., 648 So. 2d 1203 (Fla. 1st DCA 1995)…ded where the claimant’s physician never communicated to the claimant a release to return to work, even assuming retrospective testimony that the claimant could have worked during the relevant period. Garcia-Vina v. U.S. Holiday Health & Recreation, 634 So. 2d 200, 201 (Fla. 1st DCA 1994) (emphasis supplied), citing Charles v. Suwannee Swifty, 622 So. 2d 114, 115 (Fla. 1st DCA 1993) (TTD cannot be denied in the absence of evidence that claimant was informed of a release to work, or should have known he was re…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fulmer-Orlando v. Taylor, 419 So. 2d 734 (Fla. 1st DCA 1982)
- Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)
- Charles v. Suwannee Swifty and Associated Risk, 622 So. 2d 114 (Fla. 1st DCA 1993)
- Davis v. Phillips & Jordan & FP & L Claims Mgmt. Serv., 483 So. 2d 534 (Fla. 1st DCA 1986)
- Petr Taborsky v. State, 579 So. 2d 146 (Fla. 2d DCA 1991)
- Tampa Gen. Hosp. v. Asa Lawson, Jr., 547 So. 2d 260 (Fla. 1st DCA 1989)
- Seibert v. Pierce, 478 So. 2d 500 (Fla. 1st DCA 1985)
- Grey v. E. Airlines, Inc., 480 So. 2d 1341 (Fla. 1st DCA 1985)
- T.E. James Constr. Co. & Executive Risk Consultants, Inc. v. Hartley, 616 So. 2d 548 (Fla. 1st DCA 1993)
- Sheppard v. State, 553 So. 2d 359 (Fla. 1st DCA 1989)