Penalties and Interest on Temporary Partial Disability Benefits

In the case of Rucker v. Just Brakes and The Hartford, 36 FLWD 2663, decided December 2, 2011, the Appellate Court held that the judge could not deny penalties and interest on the Temporary Partial Disability where the Employer/Carrier had never raised that as a defense

The Judge found the Claimant had not filed the Employee Earnings Reports, also called DWC-19 forms, and thus was not entitled to the benefits until the Claimant filed the forms. The Appellate Court held that the Judge violated the Claimant's due process rights by considering a defense not raised by the Employer/Carrier. The Judge erred in denying the penalties and interest pursuant to the previously decided case of Republic Waste Services, Inc. v. Ricardo, 68 So. 3d 934, 936 (Fla 1st DCA 2011). That case held that once the Claimant shows he is entitled to Temporary Partial Disability benefits and shows he was not paid these benefits within seven (7) days of the date they became due, the Claimant has made a prima facie case for penalties and interest pursuant to Fla. Stat. Annotated §440.20 (6)(a)(2009).

In the case of Matrix Employee Leasing, Inc. v. Hadley, 36 FLWD 2525, the Court held that if an injured worker is on no work at the time 104 weeks runs, he is not automatically entitled to Permanent Total Disability. Once the 104 weeks ran, the Employer/Carrier began paying Claimant impairment benefits even though he was on a no work status. The Claimant sought Permanent Total Disability because he was at MMI on a no work status. The Employer/Carrier denied the claim because the workers' compensation law does not authorize the payment of pre-MMI, temporary Permanent Total Disability benefits. The judge awarded temporary Permanent Total Disability benefits so that the Claimant could receive full compensation. However, the Appellate Court ruled that the Claimant should have been denied Permanent Total Disability benefits because the claimant must prove that at the time he reaches maximum medical improvement he will still be medically totally disabled or unable to work. The Appellate Court receded from its decision in the case of City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla 1st DCA 1998). The Appellate Court held that the test of whether a Claimant is totally disabled upon the expiration of temporary benefit eligibility, that being the 104 weeks, is whether the Claimant will remain totally disabled at the date of anticipated MMI, and only then is he permanently and totally disabled