NORETTA ELDER, APPELLANT,
v.
WEST BOCA MEDICAL CENTER AND SPECIALTY RISK SERV., APPELLEES

Fla. 1st DCA | 2005-06-23
No. 1D04-0764
Barfield, J., Browning, J., Hawkes, J.
904 So. 2d 637 Florida District Court of Appeal, First District (2005)

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Synopsis

The court affirmed the denial of permanent total disability benefits and held that an employer/carrier need not specifically plead substantial earning capacity as an affirmative defense under Home Depot v. Turner, only bear the burden of proving it.


Holding

An employer/carrier seeking to defend against a permanent total disability claim by proving substantial earning capacity need not specifically plead this as an affirmative defense, as Home Depot v. Turner addresses only the burden of proof, not pleading requirements.


Headnotes

[1] Home Depot v. …

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Facts & Procedural History

Noretta Elder sought permanent total disability benefits from West Boca Medical Center and Specialty Risk Services, and the judge of compensation clai…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Noretta Elder (appellant) appeals a final order entered by the judge of compensation claims denying her petition for permanent total disability (PTD) benefits, penalties, interest, costs and fees. We affirm without discussion, except to address appellant’s argument that under Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st DCA 2002), an employer/carrier (E/C) seeking to establish proof of a substantial earning capacity in defense to a claim for PTD benefits must specifically plead this as an affirmative defense, or forever waive it.

We do not read Home Depot to create such a pleading requirement; Home Depot addresses only the burden of proof in permanent total disability claims. See § 440.15(1)(b), Fla. Stat. (2001) (“Only a catastrophic injury as defined in s. 440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability.... In no other case may permanent total disability be awarded.”); Home Depot, 820 So. 2d at 1075-76 (holding the E/C bears the burden, not the claimant, “to demonstrate, by the conclusive proof required statutorily, that claimant maintained a substantial earning capacity despite her impairment”).

AFFIRMED.

BARFIELD, BROWNING and HAWKES, JJ. concur.


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