Florida/Georgia Personal Injury & Workers Compensation

...However, we note that Section 440.15(3)(b)5. and 6. provide for an adjustment on account of inflation. We also have the view that changing economic conditions are necessarily reflected, at least to some extent, in the "statewide average weekly wage," (Section 440.12(2), (a) and (b)), and in the pre-injury wages received by an employee, which directly govern the amount of wage loss benefits recoverable....

...For convenience this section is set out in full: "Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined subject to limitations of subsection (2) of § 440.12 as follows: "(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately preceding...

...In January 1996, the claimant sustained a compensable work-related injury. The employer began paying temporary total disability benefits in February. The claimant's average weekly wages were $1,249.96, resulting in a weekly compensation rate of $833.35. However, by virtue of section 440.12(2), Florida Statutes (1995), the claimant's benefits were capped at the maximum compensation rate of $465.00 per week....

...SABILITY.— (a) In case of disability total in character but temporary in quality, 662/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s....

...(3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.— (a) Impairment benefits. — . . . . 3. .... Impairment income benefits are paid weekly at the rate of 50 percent of the employee's average weekly temporary total disability benefit not to exceed the maximum weekly benefit under s. 440.12....

...f temporary benefits, whichever occurs earlier.... The employer had concluded from section 440.15(3)(a)3 that the claimant was entitled to weekly impairment income benefits totaling 50 percent of the maximum compensation rate established pursuant to section 440.12(2), or $232.50, which sum it paid to the claimant....

...e of 50 percent of the employee's average weekly temporary total disability benefit" (emphasis added). It is undisputed that the claimant's "average weekly temporary total disability benefit" was the maximum compensation rate established pursuant to section 440.12(2), or $465.00 per week....

...Fifty percent of $465.00 is $232.50, the amount paid by the employer. Moreover, the interpretation of section 440.15(3)(a)3 proffered by the claimant and accepted by the judge of compensation claims incorrectly presumes that the phrase "not to exceed the maximum weekly benefit under s. 440.12" is intended to refer to the phrase "[i]mpairment income benefits," rather than to the phrase "the employee's average weekly temporary total disability benefit." Such a presumption would be at odds with the "doctrine of the last antecedent,...

...E.g., Southeastern Staffing Services, Inc. v. Department of Ins., 728 So.2d 248, 250 n. 7 (Fla. 1st DCA 1998); McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177, 1179-80 (Fla. 1st DCA 1982). Accordingly, we conclude that the phrase "not to exceed the maximum weekly benefit under s. 440.12" was intended to refer to the immediately preceding phrase, "the employee's average weekly temporary total disability benefit." *775 The claimant argues that such an interpretation renders the phrase "not to exceed the maximum weekly benefit under s. 440.12" redundant....

...However, the employer correctly notes that section 440.15(2)(b) provides that catastrophically injured employees are entitled to six months of temporary total disability benefits at a special maximum compensation rate of $700.00, rather than the lower maximum compensation rate set pursuant to section 440.12(2). Considering this, it appears to us that the phrase "not to exceed the maximum weekly benefit under s. 440.12" in section 440.15(3)(a)3 is intended to make clear that, for purposes of computing the rate of impairment income benefits, the amount of temporary total disability benefits is capped at the maximum compensation rate set pursuant to section 440.12(2), even if the claimant had received catastrophic temporary total disability benefits pursuant to section 440.15(2)(b) which exceeded the section 440.12(2) maximum compensation rate....

...contains the following provision: "Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined subject to limitations of subsection (2) of § 440.12 as follows: "(1) If the injured employee shall have worked in the employment in which he *741 was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately prec...

...— Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined subject to limitations of subsection (2) of § 440.12 as follows: * * * * * "(4) If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages." § 440.14(4), Fla....

...t of * * * $630.00," representing maximum weekly compensation payments for each week of the 18-week period over which the employer's advance payments extended, less one payment made during the statutory 4-day waiting period after the date of injury. Section 440.12, Florida Statutes 1953, F.S.A....

...be reimbursed out of any unpaid installment or installments of compensation due" under the award and judgment in question. *56 Section 440.20(11), supra. (Emphasis supplied.) And that provision is not by its terms made subject to the restrictions of section 440.12 of the compensation law, with reference to computation of allowable compensation....

...Doheny—the judge of compensation claims interpreted the psychiatrist's testimony as referring to a single twenty-four hour period, and concluded that appellant was not eligible for indemnity benefits because he did not prove a disability lasting longer than seven days, as required by section 440.12(1), Florida Statutes (2000)....

...§ 424a; however, claimant did present evidence of unsuccessful efforts to obtain a determination of such amount from the social security administration. The deputy commissioner held that, regardless of the offset, claimant is entitled to the $20 per week minimum compensation provision of § 440.12(2)....

...Arslanian's release of claimant from his treatment program in June of 1983, based on Dr. Arslanian's belief that continuing treatment would be futile. In such circumstances, as we acknowledged in Sears, Roebuck and Company v. Viera, 440 So.2d 49, 51 (Fla. 1st DCA 1983) (quoting from the deputy commissioner), Section 440.12(2), Florida Statutes (1981), requires an E/C whose authorized physicians are objected to by a claimant who seeks alternative treatment to either select a physician to provide such care to the claimant or to seek a ruling from the deput...

...This entitled Wells, under the provisions of subsection (2) of Section 440.15 Florida Statutes of 1941, to compensation during the continuance of his total disability for a period not to exceed 350 weeks at the rate of 60% of his average weekly wages. The weekly compensation allowed, as limited by Section 440.12, Florida Statutes of 1941, as it stood at the time of the injury here and before the amendment of 1943, could not exceed $18.00 per week....

...Sub-section (2) of Section 440.15 provides that: “In case of disability total in character but temporary in quality, sixty per centum of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed three hundred and fifty weeks, except as provided in sub section (1) of Section 440.12,” which latter Section *76 provides that compensation for disability shall not exceed $18.00 per week....

...tion 440.15(3)(b)(1), Florida Statutes (Supp. 1990), pertaining to a worker's entitlement to wage-loss benefits, provides that "[s]uch benefits shall be based on actual wage loss and shall not be subject to the minimum compensation rate set forth in s. 440.12(2)." (Emphasis added.) Subsection (3)(b)(2) states: "The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee......

...NOTES [1] Section 44-511(b)(5), Kansas Statutes Annotated (Supp. 1984), provides that a worker's AWW shall be computed by dividing the total amount of wages received either by 26 weeks preceding the accident or by the number of weeks "so employed." [2] Section 440.12(2), Florida Statutes (1989), does provide that compensation for disability for injuries occurring after December 31, 1974 shall not be less than $20 per week, but if the worker's wages are less than such amount, his or her compensation shall be based upon the full amount of the wages received....

...Appellants' petition for rehearing is denied but their request for clarification of the Court's opinion of 30 September 1980 is granted; the opinion is withdrawn; and this opinion substituted for it. This appeal raises the sole question of the effective date of Section 440.12(2)(a), Florida Statutes, as amended by the 1979 Legislature. The enactments at issue are Chapter 79-40 and Chapter 79-312, Laws of Florida. Section 7 of Chapter 79-40 provided that Section 440.12(2)(a), Florida Statutes "shall apply only to injuries occurring on or after July 1, 1979." Section 127 of Chapter 79-40 provided, "[T]his act shall apply to all claims for injury arising out of accidents occurring on or after July 1, 1...

...ubsequently, Chapter 79-312 was passed which amended many sections of the workers' compensation law, including many of those amended by Chapter 79-40; however, Chapter 79-312 did not amend Section 7 of Chapter 79-40 or, in other words, did not amend Section 440.12 of the Florida Statutes....

...Section 1.04, Florida Statutes (1979), provides that amendatory acts passed in the same legislative session are to be read in pari materia and "full effect is to be given to each, if that is possible." The order of the Deputy Commissioner finding the effective date of 440.12(2)(a), as amended by the 1979 Legislature, to be July 1, 1979, is AFFIRMED....

...Claimant was paid her full pay pursuant to this accident leave policy for the period beginning October 12, 1988 and ending January 10, 1989. [2] Claimant's salary exceeded the statewide average weekly wage, and she was subject to the statutory cap of section 440.12(2), Florida Statutes (1987)....

...ection (7), in case of disability total in character but temporary in quality, 66 % percent of the average weekly wages shall be paid to the ■ employee during the continuance there-of, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s....

...Both Westphal and the City invoked this Court’s discretionary jurisdiction, We consolidated the petitions but retained the two different case numbers. During briefing, we *318 treated Westphal as the petitioner and the City as the respondent, and we accordingly employ those same designations here. . Section 440.12(1), Florida Statutes (2009), provides: "No compensation shall be allowed for the first 7 days of the disability, except benefits provided for in s....

...er 42 U.S.C. ss. 402 and 423, does not exceed 80 percent of the employee's average weekly wage. (Emphasis added.) The "[w]eekly compensation benefits" payable to the claimant pursuant to chapter 440, Florida Statutes, were capped in 1994 at $444.00. § 440.12(2), Fla....

...ve been calculated at 50 percent of the maximum compensation rate, rather than at 50 percent of 66 2/3 percent of the average weekly wage where the amount of temporary total disability benefits was capped at the maximum compensation rate pursuant to section 440.12(2))....

...iled to provide full time work for him. That neither the claimant nor a similar employee has worked in said employment during substantially the whole of 13 weeks immediately preceding said injuries. That the methods provided by Section 440.14(1) and Section 440.12(2) cannot reasonably and fairly be applied....

...d their candidacy for office, notwithstanding that the legislature may have intended the section to have a more extended application. . This weekly compensation benefit will not be in excess of the established maximum weekly compensation limit under § 440.12(2).

...1st DCA 1981), which held the change *1133 to be procedural and applicable regardless of the date of the accident. Both parties have also pointed out that, if the offset for the dependents' benefits is permitted, this court must decide whether Florida Statutes, § 440.12(2) [2] still mandates that claimant receive minimum workers' compensation benefits of $20 per week even though social security benefits payable to him and his wife and son exceed 80 percent of his average weekly wage, the maximum compensation permitted by § 440.15(10)(a), supra. There is no decisional precedent directly on point. [3] The purpose and application of § 440.12(2) remains, as with predecessor provisions commencing with the original enactment of the Workmen's Compensation Act, [4] to provide a legislatively mandated minimum "compensation," a term defined in § 440.02(11) [5] of the present Act. Because § 440.12(2) provides a minimum for "compensation," and because compensation is defined by § 440.02(11) as money payable "as provided for in this chapter," we conclude that money payable under social security laws is not money payable under Chapter 440 or provided for therein....

...roceedings consistent herewith. BOOTH, SHAW and WENTWORTH, JJ., concur. ON MOTION FOR CLARIFICATION PER CURIAM. Because money payable under social security laws is not "compensation" as defined by § 440.02(11), the minimum compensation provision of § 440.12(2) is unaffected by the receipt of social security benefits. Claimant is entitled to the § 440.12(2) minimum compensation payments despite any § 440.15(10)(a) offset which would otherwise be applicable....

...d to benefits under this chapter, under 42 U.S.C. §§ 423 and 402, does not exceed 80 percent of the employee's average weekly wage... . [emphasis supplied] [*] The words "and his dependents" were added by the 1979 amendments. [2] Florida Statutes, § 440.12(2): Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week... . [3] See, American Bankers Insurance Co. v. Little, 393 So.2d 1063 (Fla. 1980), wherein claimant's workers' compensation benefits were reduced to four cents per week after offset for social security benefits, but § 440.12(2) was, apparently, not considered....

...efits. Had the Legislature desired to place this 14 day limitation period on temporary partial disability benefits, it could easily have added similar language to subsection (4)(b) of section 440.15 or could have placed a 14 day limitation period in section 440.12, a statute which contains other restrictions generally applicable to all benefit payments....

...4 through 14, 2014 – is supported by competent substantial evidence in the record. But an application of the law to these findings indicates that the JCC erred to the extent the TTD award includes the first seven days of the disability period. Section 440.12(1), Florida Statutes (2013), provides that “[c]ompensation is not allowed for the first 7 days of disability, except for [medical] benefits” unless “the injury results in more than 21 days of disability.” Notable is that thi...

...often conceded or proven that these periods overlap, it was neither conceded nor proven here that Claimant was unable to work for the first days after her accident for reasons due to the compensable accident. Given the error of law, remand is required for correct application of section 440.12(1) to the facts as found by the JCC....

...Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined subject to limitations of subsection (2) of § 440.12 as follows: “(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of thirteen weeks immediately precedi...

determined subject to limitations of subsection (2) of § 440.12 as follows: “(1) If the injured employee shall

...■ count ■ of dependency upon thfe deceased and in the' following order of preference (subject to the limitation provided in paragraph (c) of § 440.16 (2) below); but such compensation shall be subject to the limits provided in subsection (2) of § 440.12 and shall shall not exceed, for all dependents or persons entitled to compensation, sixty .not exceed, for all dependents or persons entitled to compensation, sixty 'per': cent of the average wage — ”....

ALLEN, J. The employer and servicing agent appeal a workers’ compensation order by which the claimant was awarded temporary disability benefits based upon the $20 per week minimum compensation rate referenced in section 440.12(2), Florida Statutes....

...A claim was made for temporary disability compensation, with the claimant asserting that her wages might be based on earnings which she expected to obtain in other post-injury employment. Alternatively, the claimant maintained that the award might be made at the $20 per week minimum compensation rate referenced in section 440.12(2). The judge properly declined to use the claimant’s anticipated post-injury earnings to compute her average weekly wage, but compensation for temporary disability was nevertheless awarded at the minimum rate provided in section 440.12(2)....

...for the thirteen weeks immediately preceding, the occurrence of her injury. She thus did not have an average weekly wage as delineated in section 440.14, Florida Statutes. The judge recognized this in awarding compensation at the minimum rate under section 440.12(2), but this subsection provides in relevant part that: Compensation for disability ......

...440.25(1), F.S.A., 1 providing for filing of claims seven days after injury, should be *736 applied to void the claim filed by respondent four days after injury. The order affirmed in the present case holds on this point: “ * * * In addition to the monetary compensation benefits, Section 440.12(1) of the Act requires the employer and/or carrier to provide the employee with medical care and attention in accordance with the provisions of Section 440.-13(1) of the Act. When one views the provisions of Section 440.25(1) of the Act in light of the provisions of Section 440.12(1) of the Act, it would appear that one of the' functions of the 7 day waiting period contained in Section 440.25(1) of the Act is to give to the employer an opportunity to voluntarily provide the injured employee with medical care and...

that case, we held that the effective date of Section 440.-12(2)(a) was July 1,1980. This section does not

...Lovett, 888 So.2d 136, 137 (Fla. 1st DCA 2004). Because the offset in the instant case exceeds the amount of workers’ compensation disability benefits the E/SA otherwise would pay, the E/SA paid Claimant the statutory minimum amount of $20 per week. See § 440.12(2), Fla....

...case of disability total in character but temporary in quality, 662/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks except as provided in this subsection, s. 440.12(1), and s. 440.14(3).[4] Once the employee reaches the maximum number 4. Section 440.12(1), Florida Statutes (2009), provides: “No compensation shall be allowed for the first 7 days of the disability, except benefits provided for in s....

five days of temporary benefits were awarded, section 440.12(1), Florida Statutes, barred entitlement. 3

...purpose of the requested advance is to pay for litigation costs, nothing further – particularly financial need – should be considered. Claimant also suggests that Taylor supports this argument. We disagree on both counts. First, nothing in section 440.12(12)(c) supports the notion that financial need should not be considered when the nexus requirement is met....

PER CURIAM. Appellants challenge the determination made by the deputy commissioner that Section 440.12(2)(a), Florida Statutes, as amended by Chapter 79-40, Section 7, Laws of Florida, has an effective date of July 1, 1979....

...The DC, in denying TTD benefits to claimant, found that claimant had been released by his treating physician to return to light-duty work less than seven days after the accident, and, therefore, he was not entitled to an award of such benefits. See § 440.12(1), Fla.Stat....

JOANOS, Judge. The deputy commissioner’s award of compensation benefits was based upon an erroneous determination of the effective date of the 1979 amendments to § 440.12(2)(a), Florida Statutes, regarding the maximum compensation rate....

...1st DCA 1980); Ridgeway Transfer & Storage v. Fletcher, 390 So.2d 821 (Fla. 1st DCA 1980); Glerici Masonry & Plaster v. Profit, 393 So.2d 612 (Fla. 1st DCA 1981). Admittedly, the decision in Lovett was made without the benefit of Chapter 80-236, which specifically amended § 440.12(2)(a) to change the effective date to August 1, 1979....

...tempt to retroactively amend the statute by changing the effective date is void as an impairment of a vested right. Sullivan v. Mayo, 121 So.2d 424 (Fla. 1960). Our reversal of the deputy on the effective date of the maximum compensation rates under § 440.12(2)(a) also brings into issue the effective date of the 1979 amendments to § 440.15(2) (the compensation rate for temporary total disability)....

her minimum $20 weekly payments pursuant to Section 440.12. We modify the order below and affirm as modified

JOANOS, Judge. This is an appeal from a workers’ compensation order denying the $20 per week minimum disability compensation provision of Section 440.12(2), Florida Statutes (1975)....

...not losing anything that the Social Security Administration could not otherwise take.” In arriving at this conclusion the deputy has failed to consider the significance of this court’s holding in Davis , i.e., “[t]he purpose and application of § 440.12(2) remains, as with predecessor provisions commencing with the original enactment of the Workmen’s Compensation Act, to provide legislatively mandated minimum ‘compensation,’ a term defined in § 440.02(11) of the present Act.” On Motion for Clarification the court expressly held: Because money payable under social security laws is not “compensation” as defined by § 440.02(11), the minimum compensation provision of § 440.12(2) is unaffected by the receipt of social security benefits. Claimant is entitled to the § 440.12(2) minimum compensation payments despite any § 440.15(10)(a) offset which would otherwise be applicable. 3 See also: Letcavage v. John Biggie & Co., 418 So.2d 417 (Fla. 1st DCA 1982). Implicit in this court’s decisions in Davis and Letcavage is a finding that Section 440.12(2) is substantive law....

...That portion of the deputy’s order which reduced claimant’s $20 minimum compensation benefits to zero pursuant to Section 440.15(9)(d), Florida Statutes (1983), is reversed and the case is remanded for entry of an order consistent with this opinion. MILLS and BARFIELD, JJ., concur. . § 440.12(2), Fla.Stat....

...(1975), provides in relevant part: Compensation for disability for injuries which occur after December 31, 1974, shall not be less than $20 per week. . § 440.15(9)(d), Fla.Stat. (1983), provides: If compensation benefits are reduced pursuant to this subsection, the minimum compensation provisions of s. 440.12(2) shall not apply- .§ 440.15(10)(a) was renumbered in Chapter 82-237, § 3, Laws of Florida, to § 440.15(9)(d).

...(2) is not able to earn 80 percent of his or her average weekly wage; (3) has not reached maximum medical improvement; and, (4) has not received payment for 104 weeks of temporary benefits. While the statutory maximum compensation rate set forth in section 440.12(2), Florida Statutes, applies to temporary disability benefits, it merely limits the amount the carrier is obligated to pay if temporary benefits are due....

...In pertinent part, Section 440.-12(3), Florida Statutes (1978), states: “The provisions of this section as amended effective July 1, 1973, shall govern with respect to disability due to injuries suffered after June 30,1973 and prior to January 1,1975.” Section 440.12(2), Florida Statutes (1973), governing appellant’s accident, provides that compensation shall not exceed $80.00 per week....

...��. The deputy found Jackson to be a “part time employee” under Section 440.14(5), Florida Statutes, F.S.A. He found the “average weekly wage” to be $10.00 (8 hours at $1.25) and awarded benefits of $8.00 per week under Section 440.15(2) and Section 440.12(2), Florida Statutes, F.S.A....