07-6297 KATHLEEN AUMAN, v. LEVEROCK

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State: Florida

Court: Florida First District Court

Docket No: 07-6297

Case Date: 12/16/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA KATHLEEN AUMAN, Appellant, v. LEVEROCK'S SEAFOOD HOUSE, LEVEROCK'S RESTAURANT /SPECTRUM HR LLC, PROVIDENCE PROPERTY & CASUALTY INSURANCE COMPANY, Appellees. _______________________________/ Opinion filed December 16, 2008. An appeal from an order of the Judge of Compensation Claims. E. Douglas Spangler, Judge. Dates of Accidents: October 17, 2004 and October 27, 2004. Brian O. Sutter, Port Charlotte; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant. William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-6297

BENTON, J. In this case of first impression, we reverse a compensation order insofar as it cut off Kathleen Auman's temporary total disability benefits after only eleven

weeks, even though her temporary disability persisted at the time of the hearing on the claim for benefits. There is no statutory authority for such a cutoff. See Thorkelson v. NY Pizza & Pasta Inc., 956 So. 2d 542, 543-44 (Fla. 1st DCA 2007) ("Workers' compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction." (quoting Sunshine Towing, Inc. v. Fonseca, 933 So. 2d 594, 594 (Fla. 1st DCA 2006))). While working as a waitress, it was Ms. Auman's misfortune to suffer two separate and unrelated industrial accidents. The first was on October 17, 2004, when she slipped and fell to her knees. The second took place ten days later when she again slipped and fell, this time backwards, landing on her elbow, and fracturing the head of her right humerus. The doctor who saw her in the wake of the fall backwards on October 27, 2004, took her off work because of the injury to her right arm, and recommended surgery to repair the fracture. The judge of compensation claims found "that the accident of October 27, 2004 resulted in injuries to the claimant's right arm and elbow and that [at least as of the hearing on November 7, 2007] she ha[d] remained temporarily disabled as a result of those injuries since that date." She had already been accepted as temporarily disabled on account of the

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injury to her arm and elbow sustained in her second accident 1 when magnetic resonance imaging revealed "bilateral patellar [chondrosis], secondary to trauma" suffered in the initial accident on October 17, 2004. On January 12, 2005, the physician treating her knees recommended separate surgery to ameliorate that condition, and advised her to remain off work until knee surgery had been performed. At the time, this advice had no result whatsoever on any party's Ms. Auman had already been taken off

behavior or any other practical effect.

work and no surgery of any kind was authorized before the compensation order under review was entered. Ms. Auman has by now received temporary total disability benefits for 104 weeks as a result of the industrial accident on October 27, 2004. With regard to these payments, the compensation order under review finds: The parties stipulated during the hearing that temporary indemnity was initially paid from the date of October 28, 2004 until April 2006. By virtue of the terms of the Joint Stipulation (joint # 3) the parties also agree that additional temporary benefits will be paid up to October 27, 2006. . . . [I]t is clear that the parties intend that the entire 104 week period of temporary benefits authorized by law should be paid for the disability sustained by the Claimant in that [the October 27, 2004] accident. Later, at a motion hearing, the judge of compensation claims stated that the disability "for which the one hundred and four weeks of compensation [were or were to be] paid" was "the disability that occurred because of the injury on October 27, 2004, which was the humeral head injury."
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The restaurant and its insurance carrier take the position here as below that, instead of up to 104 weeks of temporary disability payments during recovery from the knee injuries,2 she should receive a mere eleven weeks3 of benefits. Nothing in the language of the statute supports their position. Section 440.15(2)(a), Florida Statutes (2004), authorizes disability benefits for up to 104 weeks for any temporary disability of which an industrial accident is the major contributing cause. See Okeechobee Health Care v. Collins, 726 So. 2d 775, 777 (Fla. 1st DCA 1998). The Workers' Compensation Act defines disability as "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury,"

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