09-6078 THEOTAS WILLIAMS, II, v. ARCHER WESTERN CONTRACTORS and GALLAGHER BASSETT SERVICES, INC.

State: Florida

Court: Florida First District Court

Docket No: 09-6078

Case Date: 07/30/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA THEOTAS WILLIAMS, II, Appellant, v. ARCHER WESTERN CONTRACTORS and GALLAGHER BASSETT SERVICES, INC., Appellees. __________________________/ Opinion filed July 30, 2010. An appeal from an order from the Judge of Compensation Claims. John J. Lazzara, Judge. Date of Accident: June 13, 2008. Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant. William H. Rogner and Matthew W. Bennett of Hurley, Rogner, Miller, Cox, Waranch & Wescott, P.A., Winter Park, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D09-6078

THOMAS, J. In this workers' compensation appeal, Claimant challenges the JCC's denial of his claim for temporary partial disability benefits. The JCC found that Claimant suffered compensable injuries resulting in restrictions which prevented him from

performing his pre-injury job, but which did not prevent him from performing "some modified duty work." The JCC also found that Claimant was not yet at maximum medical improvement. The record indicates no refusal by Claimant of modified work, nor was Claimant offered modified work; Claimant was not terminated for misconduct; and Claimant did not commence employment elsewhere, followed by termination for misconduct or economic reasons. Under such facts, as explained in our recent opinion in Wyeth/Pharma Field Sales v. Toscano, 35 Fla. L. Weekly D1520 (Fla. 1st DCA July 7, 2010), Claimant is entitled to temporary partial disability benefits without conducting a job search. We therefore reverse the JCC's order denying Claimant's claim for temporary partial disability benefits. REVERSED. ROBERTS and MARSTILLER, JJ., CONCUR.

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