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Employer/Carrier’s Non-Payment of Indemnity Upheld by 1st DCA… Again

Jan 4, 2013 - News by

Robert J. Strunin and Michele E. Ready, partners in the Firm’s Miami office, collaborated again to secure JCC and First DCA rulings on an important point on Florida Worker’s Compensation Law – this time regarding the right of the Employer/Carrier to terminate non-PTD indemnity benefits following 401 weeks from the Claimant’s date of loss pursuant to Fla.Stat. §440.15(3)(c)(2002).

The at-issue industrial accident occurred on 4/28/03; over the years, Claimant, who suffered numerous injuries in a compensable worker’s compensation accident, received only about 15 weeks of temporary indemnity benefits from the date of loss through January 2011. Generally, eligibility for temporary indemnity benefits is cumulative rather than calendar-based. In this case, 401 weeks had expired from the date of loss until the time of a petition for benefits dated July 19, 2011 seeking indemnity after the expiration of 401 weeks from the date of loss. Employer/Carrier denied Claimant’s further eligibility for temporary indemnity benefits for 2011 based on the cited statute as applicable for this 2003 date of loss (but which was subsequently written out of Fla.Stat. §440.15 during the 2003 amendment.)

Robert was instrumental in securing a ruling from JCC Daniel A. Lewis that the injured worker had no eligibility for temporary indemnity benefits because more than 401 weeks had expired from the date of loss. The cited statute was clear on its face, and distinguished from case law regarding a 104-week cap on temporary benefits.

Strunin cited case law supporting his argument. In his final compensation order dated April 6, 2012 (the case was tried on April 5, 2012), Judge Lewis detailed the history of the case and found that the at-issue statute was applicable and denied temporary indemnity benefits. Subsequent to Judge Lewis’ ruling, the Claimant, through his attorneys, appealed.

The First DCA entertained and analyzed written arguments by the Claimant’s attorney and by Michele (on behalf of Employer/Carrier.) The First DCA upheld Judge Lewis’ final compensation order in a per curiam affirmance filed October 29, 2012. Because of the nature of the affirmance (no discussion by the First DCA), it is clear that Michele succeeded in overcoming the arguments of Claimant’s attorneys and convinced the First DCA that Judge Lewis’ order was correct.

The facts and the rulings may be reviewed at OJCC case number 04-01750 DAL and Fla. First DCA case number 1D12-2223.


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