Florida/Georgia Personal Injury & Workers Compensation

...The Deputy found that petitioner had, as a result of this accident, a permanent partial disability of 40 per cent. of the right hand. The carrier was voluntarily paying petitioner on the basis of a 40 per cent. permanent disability of the right hand. The Deputy held that under Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A., the injury to petitioner's right hand merged with the pre-existing permanent physical impairment, to-wit, amputation of the left hand, to cause a permanent disability which is materially and s...

...oner's compensable disability under said statute at 59 per cent. of the body as a whole. *815 The petitioner has not cited nor have the respondents directed our attention to any Florida case factually similar to the instant suit which has dealt with Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A., nor has our independent research disclosed such a case. Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A., provides as follows: "Permanent disability after other permanent physical impairment....

...d for such injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment." (Italics supplied.) Petitioner argues, and we agree, that the facts in the instant case come squarely within Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A., and that said section is clear, concise, and unambiguous....

...tioner to receive benefits over and above those to which he is entitled for disability arising from the second injury alone, the petitioner must be permanently and totally disabled. To hold in conformity with this position would result in nullifying Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A....

...en's compensation law, as to the special disability fund provisions, was modeled. Workmen's Compensation Law, 1959 Changes. James T. Vocelle, 33 Fla.Bar Journal, page 556 (July 1959). It is further contended by the respondents that subparagraph 5 of Section 440.15(5) (d), Florida Statutes 1959, F.S.A., which reads: "Legislative intent....

...ining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the special disability trust fund." precludes the award of compensation to this petitioner or any claimant based on subsection (d) of Section 440.15(5). Respondents say that Section 440.15(d) (1), (2) and (3) cannot be construed to provide any benefits for injured employees and can be used only to determine whether an employer or carrier is entitled to reimbursement from the Special Disability Fund....

...At first glance this position seems to be well taken. However, after a careful, painstaking dissection of the Workmen's Compensation Statute and consideration thereof in the light of the overall legislative purpose we hold that this contention must fail. Section 440.15(5) (c) states as follows: "The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from benefits for a later injury nor preclude benefits for death resulting therefrom; but in...

...a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in paragraph (d) of this subsection." (Italics supplied.) Upon reading Section 440.15(5) (c), which excepts paragraph (d), and Section 440.15(5) (d) (2) and (5), it is apparent that the latter two subsections are in conflict and cannot be reconciled. Section 440.15(5) (c) confines an employee, who has a previous disability and later suffers a second compensable injury, to benefits for the second injury when considered by itself and not in conjunction with the previous disability. This is commonly known as an apportionment statute. However, an exception is contained in Section 440.15(5) (c) to this manner of determining benefits due the employee, said exception being paragraph (d) of Section 440.15(5), which paragraph is, in accordance with Section 440.15(5) (d) (5), not to be used in determining benefits due the employee. In effect, what we have is Section 440.15(5) (c) saying that the employee is not entitled to benefits for the combined disabilities except as provided by Section 440.15(5) (d) (1), (2) and (3). Then we have Section 440.15(5) (d) (1), (2) and (3) setting forth the conditions under which an employee is entitled to benefits for the combined disabilities. Then along comes Section 440.15(5) (d) (5), which was enacted subsequently and says that paragraph (d) is not to be considered in determining benefits. If paragraph (d) is not used to determine the compensation due an employee, Section 440.15(5) (c) would be controlling in all cases where an employee with a previous disability sustained a subsequent compensable injury and under no circumstances would such an employee be entitled to compensation other than for the disability resulting from the second injury alone....

...egislature's obvious policy and intent such last sentence, if operative at all, must be so construed as to give it effect consistent with such other sections and part of sections and with the policy they indicate." [1] (Italics supplied.) We look to Section 440.15(5) (d) (2) to determine the benefits due the petitioner herein because, although in point of time or order of arrangement said section is prior to the section which creates the conflict heretofore found to exist, a thorough study and comprehensive analysis of Section 440.15 convinces us that Section 440.15(5) (d) (2), when considered in connection with the exception contained in Section 440.15(5) (c), conforms to the legislature's obvious policy and intent and that Section 440.15(5) (d) (5) does not so conform but indeed is antithetical thereto. Actually the very purpose for which the Special Disability Fund was created would be disannulled were we to adopt the construction given to Section 440.15(5) (d) (2) and (5) by Respondents....

...Neither should be permitted to defeat the legislative will gleaned from a studious analysis of the Florida Workmen's Compensation Law in the light of the overall salutary objectives which undoubtedly motivated its enactment. We hold that under the facts of this case the Deputy Commissioner did not err in determining, under Section 440.15(5) (d) (2), Florida Statutes 1959, F.S.A., that the petitioner who had lost his left hand prior to the second accident subsequently incurred *818 a permanent disability from injury arising out of and in the course of his employment whi...

...TERRELL, Acting C.J., and DREW, THORNAL and HOBSON (Ret.), JJ., concur. NOTES [1] Johnson v. State, 157 Fla. 685, 27 So.2d 276, 282. [2] To encourage the employer to employ the handicapped by relieving the former of the added burden cast upon him by Section 440.15(5) (d) (1), (2), (3).

...ning capacity and, if so, we must then determine whether the instant claimant has in fact shown the existence of such a loss of wage earning capacity. We stated in Ball v. Mann, 75 So.2d 758 (Fla. 1954), that "disability", for purposes of Fla. Stat. § 440.15(3)(u), refers to a diminution of earning capacity resulting from an injury, rather than to the physical impairment itself, commenting that the two were not necessarily proportional. However, following that landmark opinion by our distinguished retired Justice E. Harris Drew, who authored so much of Florida's body of law in the workmen's compensation field, the Legislature, by Fla. Stat. § 440.15(3)(u), F.S.A....

...Mann), defines "disability" as "either physical impairment or diminution of wage earning capacity, whichever is greater." This definition is one which applies to permanent partial disabilities other than those scheduled specifically in the other portions of Fla. Stat. § 440.15(3), F.S.A. We observe that § 440.15(3)(i) deals with loss of the second (middle) finger, that subsection (3)(j) deals with loss of the third (ring) finger (the two injured here), that subsection (3)(a) deals with the loss of two or more digits, and that subsection (s) deals with partial loss or partial loss of use of a member....

...RELATED INJURY However as we indicated in Trieste v. Anchell, 143 So.2d 673 (Fla. 1962), when a scheduled injury results also in a loss of efficiency, pain or involvement of some other part of the body, not included in the specifically scheduled losses under § 440.15(3), the claimant is not restricted to benefits related only to the scheduled injury....

..."MERGER" The question thus arises as to whether the scheduled compensation benefits are necessarily exclusive where a scheduled injury befalls a workman with a pre-existing disability, or whether such an injury may, in appropriate circumstances, "merge" with the pre-existing disability so as to fall within the intent of F.S. § 440.15(3)(u), F.S.A....

...Thus it appears that the requirement of an explicit showing of a "loss of wage earning capacity," while it is a usual test [2] is not an essential predicate to a consideration of earlier and present, related injuries. "Physical impairment" in F.S. § 440.15(3)(u), F.S.A. would be an adequate basis for an award. F.S. § 440.15, F.S.A....

...is the only statutory basis upon which compensation for disability may be made in the instant case. Inasmuch as only permanent partial disability is involved, the provisions of subsection (3) must govern. This subsection provides for specified payments for specific compensable injuries, and then provides in § 440.15(3)(u) that: "In all other cases in this class of disability the compensation shall be sixty percent (60%) of the injured employee's average weekly wage for such number of weeks as the injured employee's percentage of disability is of three...

...purpose of this paragraph `disability' means either physical impairment or diminution of wage earning capacity, whichever is greater." (emphasis added) Some statutory basis must exist for the computation of any workmen's compensation award, and F.S. § 440.15, F.S.A. provides the only place for finding such a basis here. If compensation may be based on a "merger" of disabilities in appropriate circumstances (as the employer has conceded), the basis must be found in § 440.15....

...And if the "merger" is between disabilities included in the schedule as separate items but not as two disabilities joined together as a "scheduled" injury (as for instance a hand and a leg) the statutory basis for the award must perforce be found in § 440.15(3)(u) which deals with "all other cases". BASIS OF AWARD If, then, the award of compensation benefits in "merger" cases (if no "scheduled" item) is to be determined under § 440.15(3)(u), we must look to that section to determine how benefits thereunder are to be computed....

...sical impairment. If the injury in question were a back injury, which is clearly within the scope of subsection (3)(u), no one would quarrel with this proposition; the statute is abundantly clear. And since a "merger" situation must also fall within § 440.15(3)(u), the same results must follow: a merged injury causing 10% physical impairment and no loss of wage earning capacity should be compensated on the basis of the 10% physical *215 impairment, under the express terms of the statute, despite the lack of any loss of wage earning capacity....

...But a claimant would get nothing for the effects of the "merger" if he had not had that 1% loss of wage earning capacity. Admittedly, this is an extreme example, but it demonstrates the true impact and fallacy of the employer's contention. To say, as the employer would have us do, that in merger cases the true meaning of § 440.15(3)(u) is that disability for purposes of that section is the greater of physical impairment or loss of earning capacity only if there is a loss of earning capacity is to invoke a limitation or to add words to the statute not placed there by the Legislature....

...ithin the scope of the specifically scheduled disability, thus causing the resulting disability to be substantially and materially greater than would be the case if the second injury were considered alone, compensation benefits must be payable under § 440.15(3)(u), and must be based upon either loss of earning capacity or physical functional impairment, whichever is greater....

...ability of his left hand. The benefits provided for the effect of the merger of the two disabled hands must, of course, be based upon the greater of (1) claimant's loss of wage earning capacity, or (2) claimant's physical functional impairment. F.S. § 440.15(3)(u), F.S.A....

...imant did not suffer an accident arising out of and in the course of employment, *495 and (2) that there was no causal connection. The Industrial Commission reversed. The deputy commissioner took the position that there was a compensable claim under § 440.15(6) (f), in effect determining that the injury constituted a hernia within the contemplation of that section. The Commission disagreed, saying: "In our opinion, the deputy commissioner has erred in treating the claimant's condition as a `hernia' under Section 440.15(6) (f), F.S. This Commission has previously held in Harris v. South Broward Water Company Decision No. 2-853, 1959, that a `diaphragmatic hernia' was not covered by said Section 440.15(6) (f); and we discussed the types of internal and external ruptures contemplated and not contemplated by the `hernia' paragraph." We are in agreement with the opinion of the Commission that the injury did not fall within § 440.15(6) (f), and approve its language: "In order to determine the legislative intent as to what hernias are encompassed by the terms, `inguinal, femoral, or otherwise,' rules of statutory construction must be applied....

..., to the inguinal or femoral hernias. `Paraduodenal hernias' are conditions of a completely different nature. One certainly would not contend that a herniated disc, a ruptured blood vessel, or a ruptured organ would be included within the purview of Section 440.15(6), F.S., relating to `hernias'." The Commission observes that "such error is immaterial * * *." Once again we agree but thereafter our roads part company, the Commission determining that "* * * the claimant failed to show an accident...

...In addition to citing the Florida cases touching upon this point of law the author also gave an outline of positions assumed by courts of appeal of our sister states. It is our opinion that the deputy commissioner arrived at a substantially correct conclusion though he erroneously proceeded under § 440.15(6) (f), whereas the injury should have been treated as non-scheduled and benefits awarded accordingly....

...In this workers' compensation case, Sasso appeals from an order which denied his claim for permanent disability, wage-loss benefits on the ground that at the time of the injury his age was greater than that allowable for such benefits under the provision of Section 440.15(3)(b)3.d, Florida Statutes (1979)....

...He was hired and suffered an injury on September 19, 1979. The employer/carrier (E/C) provided medical and temporary total disability (TTD) benefits. Upon reaching maximum medical improvement (MMI), the claimant sought permanent disability, wage-loss benefits and attorney's fees. § 440.15(3)(b); 440.34(2), Fla....

...Accordingly, we affirm this portion of the deputy's order. II. An Appellant May First Raise the Question of a Statute's Constitutionality Before An Appellate Court. The deputy commissioner denied the claim for permanent disability wage-loss benefits based on the so-called "age/wage-loss provision," Section 440.15(3)(b)3.d, Florida Statutes (1979), which states that "[t]he right to [permanent disability] wage-loss benefits shall terminate: ......

...Constitutional Law § 76 at 243-244 (1956) (footnote cites omitted); see also Rhaney v. Dobbs House, Inc., 415 So.2d 1277, 1279 (Fla. 1st DCA 1982). The requirement of standing has been strictly enforced by this court in other cases assaulting the wage-loss statute, section 440.15(3)(a) and (b), as unconstitutional....

...as here — that claimant would be entitled to wage-loss benefits if he had not already reached age 65 at the time of injury. Indeed, the deputy below specifically found that the claimant should recover such benefits were it not for the provisions of Section 440.15(3)(b)3.d....

...09 case from Acton, Robbins, and Jack Eckerd Corp. Further, the issue is sufficiently defined to permit appellate review of the constitutional issue. III. The Statute Does Not Deny an Aged Claimant's Right to Access to Courts. Claimant contends that section 440.15(3)(b)3.d....

...Donnelly Co., 402 So.2d 518, 520 (Fla. 1st DCA 1981). As it has been generally recognized that chapter 440 provides a reasonable alternative to common law tort actions and so is not violative of the access to the courts provision, the question of the constitutionality of section 440.15(3)(b)3.d. depends on whether it comes within the exception to the Kluger rule, i.e., whether that section merely limits a claimant's right to wage-loss benefits rather than completely abolishes it. We find that the statute falls within the former category. Section 440.15(3) does not bar a claimant who is either permanently, totally disabled or temporarily, totally impaired from such benefits. Nor does it bar one who is permanently, partially impaired from remedial medical treatment, as authorized under section 440.13(1), Florida Statutes. Section 440.15(3)(b)3 *211 does, however, conditionally affect the right of an injured worker, who retains the capacity to earn wages, from receiving wage-loss benefits, by terminating such benefits upon the occurrence of any one of the following events: a....

...Further, there is serious question whether or not the claimant could raise this point on appeal, since this ground was not presented below. The issue appears facially statutory and nonconstitutional in nature, although we do acknowledge the existence of a hidden constitutional issue. Whether section 440.15(3)(b)3.d., Florida Statutes, contravenes the U.S....

...its. Offsetting state workers' compensation disability benefits with federal social security disability benefits presents a wholly different situation and has been held constitutional. American Bankers Ins. Co. v. Little, 393 So.2d 1063 (Fla. 1980); § 440.15(10), Fla. Stat. (1979). Also distinguishable is the case of the worker who tries to collect workers' compensation and unemployment compensation benefits, which is not permissible, Section 440.15(11), Florida Statutes (1979), and is viewed as an attempt to collect inconsistent benefits, one being collected by individuals completely physically able to work; the other collected by those who are at best only partially physically able to work....

...Hess, of Driscoll, Langston & Kane, Orlando, for appellants. Joseph E. Smith, of Hurt & Parrish, Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee. WENTWORTH, Judge. Employer/carrier appeal a workers' compensation order and assert that a 1983 amendment to § 440.15(3)(b)2, Florida Statutes, precludes an award of wage loss benefits in this case....

...Despite his efforts claimant's job search was unsuccessful, and he therefore again requested wage loss benefits. Employer/carrier took the position at the hearing on July 25, 1983, that such benefits are precluded in this case by a 1983 amendment to § 440.15(3)(b)2, Florida Statutes. The deputy commissioner expressly rejected this defense and awarded the requested wage loss benefits for the months of January through June 1983. [2] As enacted in 1979, § 440.15(3)(b)2 provided that "the burden shall be on the employee to establish that any wage-loss claimed is the result of the compensable injury." In 1983 the legislature amended this provision to further provide that: It shall also be the burden...

...Employer/carrier argue that the 1983 amendment has effectively overruled Regency Inn, and precludes an award of wage loss benefits unless a claimant establishes that economic conditions do not affect his employability. In Regency Inn the employer/carrier suggested a similar construction of § 440.15(3)(b), as then enacted....

...f both employers and employees which is necessary to give validity to the wage loss concept. Acton v. Ft. Lauderdale Hospital ... . As Regency Inn thus indicates, in the present case employer/carrier's suggested construction of the 1983 amendment to § 440.15(3)(b) would seriously imperil the constitutional validity of the workers' compensation law....

...We are also obliged to adopt the statutory construction which is most favorable to the employee. See Kerce v. Coca-Cola — Foods Division, 389 So.2d 1177 (Fla. 1980). We therefore decline to adopt employer/carrier's suggested construction of the 1983 amendment to § 440.15(3)(b)2....

...worker such as the claimant in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation. [6] In affirming the deputy's conclusion that the claimant in the present case met the burden which § 440.15(3)(b)2, as amended, imposes, we find that consideration was properly given to the fact that claimant's industrial injury displaced him from his employment; that the employer refused to rehire claimant; [7] and that claimant in good faith pe...

...[4] We do not consider the further issue, not argued by the parties, as to whether the amendment should not apply because periods of claimed wage loss in this case occurred prior to the enactment's effective date. [5] The original panel opinion in Regency Inn contrasted the statutory language of § 440.15(3)(b)2, as then enacted, with that of § 440.15(1)(b), regarding causal relation, suggesting that the legislature is capable of imposing particular standards where such are intended. The en banc opinion in Regency Inn noted the "qualifications and limitations" expressed in § 440.15(3)(b)2, and declined to find that further standards were implied....

...Claimant, in seeking review by certiorari of that order, contends here, as he did before the Full Commission, that the award is contrary to law because it is based upon impairment of body function instead of upon impairment of earning capacity. The compensation for permanent partial disability is prescribed in Section 440.15(3), F.S....

...Injuries not scheduled, such as the one here involved, are described as "other cases"; and for these compensation in the amount of sixty per cent of the employee's average weekly wage is to be paid "for such number of weeks as the injured employee's percentage of disability is of three hundred fifty weeks." Section 440.15(3) (u)....

...n Law to mean "incapacity because of the injury to earn in the same or any other employment the wages which the *760 employee was receiving at the time of the injury." Upon alignment of this definition of disability along with the quoted language of Section 440.15(3) (u), supra, it is clear that the word "disability" as there used refers to diminution of capacity to earn resulting from a physical impairment caused by the injury to the body and not merely to the physical impairment itself....

...he facts taken into consideration in assessing an award and will facilitate the task of any reviewing authority. In the instant case, the Deputy Commissioner apparently proceeded on the theory that the disability referred to in the quoted portion of Section 440.15(3) (u), supra, meant only disability with reference to impairment of bodily function....

...Respondents paid temporary total disability and medical benefits until Sasso reached maximum medical improvement. His arm was permanently impaired, and Sasso was unable to find employment. He filed a complaint for permanent total disability and wage-loss benefits under section 440.15(3)(b), Florida Statutes (1979). The deputy commissioner found Sasso ineligible for permanent total disability payments, and denied wage-loss benefits because section 440.15(3)(b)3.d. [1] cut off wage-loss benefits at age sixty-five. Sasso appealed to the First District, which affirmed. The district court held that section 440.15(3)(b)3.d....

...Such partial remedy does not constitute an abolition of rights without reasonable alternative as contemplated in Kluger v. White. See Acton v. Fort Lauderdale Hospital, 440 So.2d 1282 (Fla. 1983); Mahoney v. Sears, Roebuck & Co., 440 So.2d 1285 (Fla. 1983). Sasso also urges us to find that section 440.15(3)(b)3.d....

...In this case the district court found three legitimate state objectives furthered by the discriminatory scheme. [3] We cannot disagree that the objectives are legitimate, and that the age-based discrimination was rationally related to furthering those goals. We therefore must agree with the district court that section 440.15(3)(b)3.d....

...For injuries occurring on or before July 1, 1980, 350 weeks after the injured employee reaches the date of maximum medical improvement; c. For injuries occurring after July 1, 1980, 525 weeks after the injured employee reaches maximum medical improvement; or d. When the injured employee reaches age 65, whichever comes first. § 440.15(3)(b)3, Fla. Stat. (1979) (emphasis added). This section has subsequently been amended to delete the provision terminating benefits at age 65. However, section 440.15(3)(b)4 has also been amended to offset wage-loss benefits to the extent the recipient is entitled to social security retirement benefits....

...to reflect a productivity decline with age; (3) To induce older workers to retire to allow younger workers a chance to advance in their employment; and (4) To reduce the cost of workers' compensation premiums. The district court properly found that section 440.15(3)(b)3.d. was not rationally related to preventing double-dipping since social security retirement benefits do not serve the same purpose as wage-loss benefits. The district court correctly determined that section 440.15(3)(b)3.d....

...made shall be based either on claimant's actual weekly wage, or if he cannot establish an average weekly wage, it "shall be in an amount equal to the arithmetic average between the maximum and the minimum awards listed in the applicable portions of ss. 440.15 and 440.12." The deputy appropriately determined that due to the nature of appellee's business (appellee was the owner of a business involving the design and installation of audio systems), and the incomplete documentary evidence as to his...

...There are obvious similarities between the Crimes Compensation Act and Chapter 440, relating to workers' compensation claims; for example, the requirement in Section 960.13(3) that any award be made pursuant to the schedule of benefits and degrees of disability set forth in Section 440.15....

...Did the deputy err in awarding benefits for loss of wage earning capacity in the absence of medical testimony expressing claimant's anatomic impairment in terms of *784 the American Medical Association Guides to the Evaluation of Permanent Impairment? See section 440.15(3)(a)3, Florida Statutes (1979); Decor Painting & Iowa Mutual Insurance Co....

defenses by employers and employees alike," section 440.015, Florida Statutes (1995), the common law Frye

...Because the injured employee's cause of action has not been totally eliminated, however, the amendment does not violate article I, section 21. See John v. GDG Servs., Inc., 424 So.2d 114, 116 (Fla. 1st DCA 1982) (Upholding against an access to courts challenge an amendment to section 440.15(3)(b), concerning permanent impairment benefits, this court reasoned: "Although we note the benefits under the new wage-loss provisions may result in reduced benefits, the right to recover for industrial injuries has not been so reduced as to be effectively eliminated." ) (emphasis added), decision approved, 440 So.2d 1286 (Fla.1983); Mahoney v. Sears, Roebuck & Co., 419 So.2d 754, 755-56 (Fla. 1st DCA 1982) (The court noted that "while Section 440.15(3)(a)1....

...found gainful work, and is not yet at maximum medical improvement, is the worker entitled either to continue temporary total disability benefits as here ordered by the deputy, calculated as the designated percentage of the prior average weekly wage, section 440.15(2), Florida Statutes (1980 Supp.), or to temporary partial disability benefits calculated as another percentage of the difference between the prior average weekly wage and "the salary, wages, and other remuneration the employee is able to earn ..."? Sec. 440.15(4)....

...The first point is self-evident: simply being able to work and to search for work is not economically equivalent to new gainful employment. Thus the compensable injury continues temporarily to manifest itself, until maximum medical improvement, in a form of partial disability for which section 440.15(4)(a) requires commensurate compensation "based on actual wage loss." The second point is perhaps more problematic from an evidentiary standpoint: though it may be so, one cannot always hope to prove that, putting it in the terms of this case, the worker's "occasional back and leg pain" troubled her search....

...ly for work to assuage that loss, is not any the less a consequence of her continuing injury because job scarcity contributed also. She was therefore entitled, beginning March 10, 1981, to commensurate benefits for temporary partial disability. Sec. 440.15(4). Commensurate compensation for temporary partial disability to earn is as specified in section 440.15(4): 95 percent of the difference between 85 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn, as compared on a weekly basis; however, the weekly wage-loss benefits...

...tended search periods. The burden of proof remains on the claimant to prove, in respect to any benefits the employer or carrier refuses to pay, all elements of claimant's entitlement to wage loss benefits in the circumstances we have addressed. Sec. 440.15(4)(b)....

...y clear from the majority opinion, this fact becomes clear from a reading of the certified question and the lower courts' opinions. See Barragan, 545 So.2d at 253; see City of Miami v. Knight, 596 So.2d 104, 104-05 (Fla. 1st DCA 1992). [14] Although section 440.15(9) specifically allows a reduction of workers' compensation by the amount of social security disability paid, no similar statute within the workers' compensation statutory scheme refers to how disability retirement benefits should be treated....

...irement plan contains no offset provision. Grice, 658 So.2d at 1211. The district court also noted that the Workers' Compensation Law contains no offset provision for pension benefits, but it does provide an offset for social security benefits under section 440.15(9), Florida Statutes (1985), which states in pertinent part: (a) Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...We think that there is such a conflict and that such is abundantly clear from the opinion of the district court in this case and that of this Court in Ball v. Mann, supra. The respondent claimant, Jack R. Bell, suffered a non-scheduled injury to his back, compensable under § 440.15(3) (u), F.S.A....

...is State and places upon the employer the burden of proving that there is no diminution of earning capacity, or that it is less than the percentage of the functional disability of the claimant. It is true that to recover for injuries scheduled under § 440.15(3) a claimant is not required to prove that such an injury will result in a loss of earning capacity....

...ts in a greater degree of permanent disability than would otherwise follow from the subsequent injury; without at the same time imposing an unjust burden to pay such compensation upon the employer in whose employ the subsequent injury occurred. F.S. § 440.15(5)(d) 6(a), F.S.A., provides as follows: "a....

...For the foregoing reasons, respondent's motions must be and the same are hereby granted. The petition for writ of certiorari is dismissed. STURGIS, C.J., and CARROLL, DONALD K., J., concur. NOTES [1] See also: Florida Constitution, Art. V, § 26(10), F.S.A. [2] F.S. § 440.15(5) (d), F.S.A. [3] F.S. § 440.15(5) (d) 6, par. b, F.S.A. [4] F.S. § 440.15(5) (d) 1, F.S.A....

...ort the award of benefits for 35 per cent disability based on loss of wage-earning capacity. It is accepted law that disability for compensation purposes is grounded both on loss of wage-earning capacity and on actual physical impairment. Fla. Stat. § 440.15(3) (u), F.S.A., provides that disability "means either physical impairment or diminution of wage earning capacity, whichever is greater." In measuring the loss of wage-earning capacity, no single factor is conclusive....

...There was no involvement of the body as a whole, the petitioner's sole physical impairment being the loss of his right foot. The respondent employer and its carrier accepted the injury as compensable, provided medical treatment and paid to the petitioner disability benefits for 175 weeks as provided for by Section 440.15(3) (d), F.S.A....

...ent total disability. [1] The deputy also rejected the respondent's contention that the benefits *325 should be reduced in proportion to the amount of aggravation or acceleration of petitioner's pre-existing osteomyelitic condition. It was held that Section 440.15(5) (c) was not applicable and that therefore compensation benefits should not be apportioned because petitioner had suffered no impairment of his earning capacity as a result of the first injury....

...ative, then it becomes necessary for us to decide two further issues, viz: Whether the Workmen's Compensation law contemplates the payment of benefits for permanent total disability where the only injury received is a "scheduled" injury listed under Section 440.15(3); and if so, whether under the facts of the instant case the respondent is entitled to apportionment of the disability payments according to the contribution of the pre-existing osteomyelitic condition to the petitioner's disability....

...Upon consideration of all these factors, we are impelled to the conclusion that the deputy's finding of permanent total disability is abundantly supported by competent substantial evidence. See Ball v. Mann, Fla., 75 So.2d 758. Accordingly, we must now proceed to the second issue raised. Section 440.15(1) (b) provides: *326 "Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts." (Emphasis supplied) Section 440.15(3) provides in pertinent part: "In case of disability partial in character but permanent in quality the compensation shall, in addition to that provided by subsection (2) of this section, [2] be sixty per cent of the average weekly wag...

...ality", but is such an injury necessarily only partially disabling? We think not, and believe that the facts of the instant case afford a prime example of the loss of a single member resulting in permanent total disability. Under such circumstances, Section 440.15 (1) (a), and the final sentence of Section 440.15(1) (b) are applicable, and the question of permanent total disability "shall be determined in accordance with the facts;" that is, whether the claimant's capacity to earn has been totally destroyed....

...ch he can do insofar as affected by the injury must be considered. Ball v. Mann, Fla., 75 So.2d 758. In the vast majority of cases, a scheduled injury will result in only partial disability. In such event, the amounts of compensation provided for by Section 440.15(3) are conclusive and cannot be varied, inasmuch as the Legislature has undertaken to mathematize the various elements constituting permanent partial disability into fixed statutory sums....

...In that case the claimant's injury was limited to a partial loss of use of his right leg, but because of his inability to obtain employment as a result of the injury and other factors, the deputy commissioner awarded compensation for permanent total disability. The commission affirmed, holding that: "Section 440.15(3) of the Act is not applicable as it is clearly limited to cases of `disability partial in character but permanent in quality', while Section 440.15(1) governs cases of `total disability adjudged to be permanent.'" As we held in Miller v....

...even though it may be difficult to determine the amount of aggravation and acceleration of disability. See United Electric Company v. Myers, Fla., 134 So.2d 7. We have noted that the deputy based his failure to apportion in part on the provisions of Section 440.15(5) (c), holding that the claimant was not, prior to his last injury, disabled, and that therefore the provisions of Section 440.15(5) (c) were not applicable....

...ROBERTS, C.J., and DREW, THORNAL, and O'CONNELL, JJ., concur. NOTES [1] Because the injury out of which petitioner's disability arose occurred prior to July 1, 1955, compensation payments were limited to 700 weeks with credit for compensation already paid. Section 440.15(1) (c), F.S.A....

...But cf., Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), permitting attorney's fees where the employer denied that catastrophic loss occurred. It should be noted that Dolphin construed the e/c's controversion of the claim for catastrophic loss, provided in Section 440.15(2)(b), Florida Statutes (1979), as a denial of a catastrophic injury, thereby authorizing an award of attorney's fees pursuant to Section 440.34(2)(c)....

...injury, without more, is insufficient to establish this causal relationship. Parker stands for this proposition and no more. In Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), rev. denied, 431 So.2d 989 (Fla. 1983), this court interpreted section 440.15(3)(b)2., Florida Statutes (1979), and stated: We think a more plausible and reasonable interpretation of the burden of proof provision is found by relating it to the requirement of showing a causal relation between the injury and a cha...

...ident is also without merit. The deputy commissioner's finding that the wage loss was not due to the second injury or accident is supported by competent substantial evidence. Appellants' argument that a reduction in wage loss benefits is required by section 440.15(5)(d), Florida Statutes (1979), misinterprets that statutory section....

...The claimant challenges a workers' compensation order, contending that the deputy commissioner (deputy) erred in calculating her average weekly wage (AWW) and improperly made a finding as to permanent impairment. Additionally, claimant challenges the constitutionality of Section 440.15(3)(a)3, Florida Statutes (1979)....

...Furthermore, claimant elicited medical testimony on the issue of her permanent impairment. *1279 Accordingly, the claimant's argument on this point is without merit. Claimant's remaining argument concerns the constitutionality of the requirement found in Section 440.15(3)(a)3, Florida Statutes (1979) that the AMA Guide be used to determine impairment until such time as a permanent schedule is adopted....

...ersed and remanded for correction of the AWW in conformity with this opinion. MILLS and WENTWORTH, JJ., concur. ON PETITION FOR REHEARING THOMPSON, Judge. The claimant filed a motion for rehearing concerning her challenge to the constitutionality of § 440.15(3)(a)3., Fla....

...es) as a temporary schedule for the determination of permanent impairment pending the adoption, by rule, of a permanent schedule. Claimant also asked the court to reconsider the denial of her motion for appellate attorney's fees. We grant rehearing. Section 440.15(3)(a)3....

...f determining both the existence and degree of permanent impairment and, by the same token, it had the right to establish the AMA Guides as a temporary schedule pending the adoption of a permanent schedule by the Division. Although the provisions of § 440.15(3)(a)3....

...If the claimant cannot demonstrate some actual permanent impairment that can be observed by the deputy, then lay testimony or observation by the deputy, standing alone, is not sufficient to establish any permanent impairment if the purpose of the language in § 440.15(3)(a)3. is to be given any force and effect. Applied properly, we find § 440.15(3)(a)3....

...der Title XVI of the federal Social Security Act). Because of amendments effective January 1, 1994, an injured worker is no longer entitled to receive temporary benefits for more than two years. Ch. 93-415, § 20, at 120, 128, Laws of Fla., amending section 440.15(2) and (4), Fla. Stat. Effective January 1, 1994, section 440.15(3)(a)4., Florida Statutes (Supp.1994), not only maintains the requirement—now applicable only when maximum medical improvement occurs more than six weeks before the two-year limit for temporary benefits expires—that any permanent imp...

...ement," but also requires—in the event maximum medical improvement has not occurred earlier—that any permanent impairment be assigned a rating "6 weeks before the expiration of temporary benefits." Ch. 93-415, § 20, at 122, Laws of Fla., amending section 440.15(3)(a)4., Fla....

...r Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act. "Only claimants with catastrophic injuries are eligible for permanent total benefits." § 440.15(1)(b), Fla....

...hearing, then he would in fact be entitled to a finding of disabled pursuant to the Social Security Disability regulations and guidelines. In this instance, he would therefor be entitled to an adjudication of permanent total disability pursuant to §§ 440.15(1)(b), and 440.02(34)(f), F.S....

...he vast majority of socalled "catastrophic injuries" eligible for PTD benefits would fall under the provisions of § 440.02(34)(f), as opposed to the individual scheduled injuries set forth within §§ 440.02(34)(a)-(e), the Legislature also revised § 440.15(1)(f)2.b, F.S....

...refuses to apply for or cooperate with the employer or carrier in applying for social security benefits. (emphasis added). [See Ace Disposal v. Holley, 668 So.2d 645 (Fla. 1st DCA 1996).]. Additionally, the Legislature left intact the provisions of § 440.15(1), F.S....

...(1994), providing essentially for a dollar for dollar reduction and offset of a claimant's workers' compensation indemnity benefits when the claimant becomes eligible for receipt of Social Security Disability Benefits. The workers' compensation carrier derives the direct benefit of this reduction and offset. § 440.15(10)(a), F.S....

...We do not conclude "that obtaining MMI is a condition precedent to entry into the federal Social Security disability system." We hold rather that the Workers' Compensation Law authorizes permanent total disability benefits only "[i]n case of total disability adjudged to be permanent." § 440.15(1)(a), Fla....

...I join in the court's decision and opinion in all respects but write separately to explain why other possible interpretations of the Worker's Compensation Law must be rejected. The availability of temporary disability benefits is now limited to a period of two years. See section 440.15(2)(a), Florida Statutes (Supp.1994) (temporary total disability); section 440.15(4)(b) Florida Statutes (Supp....

...and total disability benefits, the resulting precedent would create a gap in benefits for any permanently injured worker who has not reached maximum medical improvement by the time the temporary benefits expire. This result was plainly not intended. Section 440.15(2)(a), limits temporary total disability benefits to a period of two years, but further states that: Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whiche...

...(emphasis added) The implication of this statute is that an injured worker who is permanently impaired will be eligible for permanent disability benefits when the temporary benefits expire. This conclusion is supported by the following directive in section 440.15(3)(a)4, Florida Statutes (Supp.1994): After the employee has been certified by a doctor as having reached maximum medical improvement or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the certifying doct...

...medical improvement by then, we must assume that the employee will be eligible for permanent total disability benefits at the end of the two year period. Any other construction would render the evaluation pointless. The remaining question is whether section 440.15(3)(a)4 requires an evaluation of the impairment at the time of the medical examination (during the six week period before the temporary benefits expire), or at the time the employee will subsequently reach maximum medical improvement....

...The opinion will be subjective, but no more so than other kinds of projections we ask medical experts to make. In any event, the evaluation must be made prospectively to preserve the distinction between temporary and permanent benefits. If we were to construe section 440.15(3)(a)4 to mean that the doctor must determine the degree of impairment at the time of the medical examination, we would then subvert the two year limit in section 440.15(2)(a) for the payment of temporary benefits....

...low impairment rating subsequently, at the time of maximum medical improvement. Arguably, one solution would be to award permanent total disability benefits based on the current degree of impairment and then revisit the employee's eligibility under section 440.15(1)(d) when the employee reaches maximum medical improvement....

...For these reasons, I conclude that the requirement of maximum medical improvement as a prerequisite to an award of permanent total disability benefits is satisfied by operation of law six weeks before the expiration of temporary disability benefits, and that the directive in section 440.15(3)(a)4 to "evaluate the condition of the employee and assign an impairment rating" requires the doctor to make a prospective evaluation of the impairment that will exist when the employee is at maximum medical improvement.

...affirmed this election and entered an amended final order to that effect. II. An E/C may seek to apportion a claimant’s medical and indemnity benefits if a pre-existing condition is aggravated by, or merges with, the effects of a workplace injury. § 440.15(5)(b), Fla....

...1st DCA 2006), we affirm this factual finding, one that is a prerequisite to consideration of the apportionment question. Turning to the apportionment question, the sole legal issue — which we review de novo — is whether the testimony of Dr. Lee was based on medically acceptable evidence under section 440.15(5)(b), which requires that the E/C establish, with medical evidence, the degree of impairment to be apportioned....

...termined the amount of impairment income benefits to which the claimant was entitled. Because we agree that the judge of compensation claims erroneously computed the amount of impairment income benefits to which the claimant was entitled pursuant to section 440.15, Florida Statutes (1995), we reverse....

...According to the claimant, he was entitled to $416.68 per week (50 percent of 662/3 percent of the average weekly wages). Following a hearing, the judge of compensation claims agreed with the claimant. This appeal follows. Entitlement to impairment income benefits is conferred by section 440.15, Florida Statutes (1995), the pertinent portions of which read: *774 (2) TEMPORARY TOTAL DISABILITY.— (a) In case of disability total in character but temporary in quality, 662/3 percent of the average weekly wages shall be paid to th...

...efit under s. 440.12. An employee's entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of 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. The claimant argued that he was entitled to 50 percent of his "average weekly temporary total disability benefit," provided that the resulting amount did not exceed the maximum compensation rate. According to the claimant, section 440.15(2)(a) set his temporary total disability benefit at 662/3 percent of his average weekly wages of $1,249.96, or $833.35....

...Because 50 percent of that amount was $416.68, a sum less than the maximum compensation rate, the claimant argued that he was entitled to $416.68, rather than to the $232.50 per week that the employer had been paying. Concluding that "a literal reading of section 440.15(3)(a)3" supported the claimant's argument, the judge of compensation claims held that the claimant was entitled to impairment income benefits of $416.68 per week. We conclude that the judge of compensation claims incorrectly interpreted section 440.15(3)(a)3. Section 440.15(3)(a)3 clearly states that "[i]mpairment income benefits are payable weekly at the rate 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" 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....

...Accordingly, we reverse the order of the judge of compensation claims holding that the claimant was entitled to weekly impairment income benefits of $416.68. REVERSED. PADOVANO, J., CONCURS; KAHN, J., DISSENTS WITH WRITTEN OPINION. KAHN, J., dissenting I agree with the construction of section 440.15(3)(a)3. utilized by the judge of compensation claims. I would therefore affirm the award of weekly impairment benefits of $416.68. In my view, the "not to exceed" language of section 440.15(3)(a)3....

...rral physician, Dr. Cantwell. Claimant thereafter filed a claim for, inter alia: (1) temporary total benefits from May 8, 1974, the date of the accident, to the date of maximum medical improvement; (2) six weeks statutory hernia benefits pursuant to Section 440.15(6), Florida Statutes (1973); (3) a permanent partial disability of the body as a whole rating, based upon a permanent physical impairment and/or diminution in wage-earning capacity; and (4) payment of outstanding medical and hospital bills incurred for surgical repair of his right inguinal hernia....

...In an order dated August 22, 1984, the deputy commissioner found that claimant had "wilfully failed and refused to authorize the release of information from the Social Security Administration and/or the Unemployment Compensation Division, in accordance with Florida Statute 440.15(9)(c)." [1] The deputy commissioner continued the hearing on claimant's petition to modify until such time as the claimant complied with the statutory provisions. Claimant maintains the information which the employer has demanded relates only to disability benefits, rather than to the old age retirement benefits which claimant has been receiving since 1981. Claimant further urges that the Section 440.15(9)(a) [2] disability offset provisions do not apply to any benefits due after the worker reaches age 62. According to claimant he was 68 years of age at the time the deputy commissioner's order was entered, so the employer would not have been entitled to an offset under Section 440.15(9)(a), even if the benefits claimant was receiving had been disability benefits. The claimant asserts that the employer has made a demand for information which is, in effect, immaterial to the claimant's petition for modification. We agree, and find that in light of the limiting language contained in the final sentence of Section 440.15(9)(a), the deputy commissioner's reliance on the mandatory language of Section 440.15(9)(c), [3] is misplaced....

...as to the meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions." 49 Fla.Jur.2d, Statutes § 118 (1984). Application of the foregoing principles to the instant case demonstrates that Section 440.15(9)(a) permits a reduction in the weekly disability compensation benefits payable to an injured worker in those cases where the recipient becomes eligible for social security disability benefits....

...The offset only applies, however, to those instances where the injured worker is less than 62 years of age. In this case, the deputy commissioner was provided with evidence that this claimant was well past 62 years of age at the time he filed the petition for modification. Therefore, the Section 440.15(9)(c) provision which requires an employee to authorize release of social security disability information relating to him is inapplicable to this claimant by the clear limiting language of Section 440.15(9)(a). See: University of Florida, Institute of Agricultural Services v. Karch, 393 So.2d 621 (Fla. 1st DCA 1981). We note that the limitation set forth in Section 440.15(9)(a) applies only to those injured workers who are recipients of social security disability benefits and are less than 62 years of age. Thus, the employer, pursuant to Section 440.15(9)(c) may require this claimant to authorize the release of unemployment compensation information relating to him....

...is of absolutely no benefit to his client. I concur that release of the unemployment compensation information should be authorized and would therefore deny certiorari. NOTES [1] We note that pursuant to the Florida Supreme Court's designation of the section 440.15(10) offset provisions as procedural, the deputy commissioner was correct in applying the 1983 statute rather than the 1977 statute which was in effect at the time of this claimant's injury. American Bankers Insurance Company v. Little, 393 So.2d 1063 (Fla. 1981). [2] § 440.15(9)(a), Fla....

...en reduced under 42 U.S.C. s.424(a). This reduction of compensation benefits is not applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years. (emphasis supplied). [3] § 440.15(9)(c), Fla....

...1949, 41 So.2d 308; Rosenfield v. Matthews, 201 Minn. 113, 275 N.W. 698; Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530. [3] Larson's Workman's Compensation Law, Sec. 65.10; Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577. [4] F.S. § 440.11, F.S.A. [5] F.S. § 440.15(3) (a) to (t), inclusive, F.S.A. [6] F.S. § 440.15(3) (u), F.S.A....

...Smith & Son, Inc., D.C.Kan., 79 F. Supp. 971; Freese v. John Morrell & Co., 1931, 58 S.D. 634, 237 N.W. 886; Morris v. Muldoon, 190 App.Div. 689, 180 N.Y.S. 319; Hyett v. Northwestern Hospital For Women & Children, 1924, 147 Minn. 413, 180 N.W. 552. [19] F.S. § 440.15(3) (u), F.S.A....

...t total disability benefits, to apportion any part of the permanent total disability award to the preexisting condition. This court reversed, holding that permanent total disability benefits are subject to apportionment under sections 440.02(18) and 440.15(5)(a), Florida Statutes (1981), and remanded with directions "for the deputy to apportion out of the permanent total disability award that percentage of the award for permanent impairment caused by the natural progression of pre-existing conditions." 465 So.2d at 658....

...Florida Industrial Comm'n, 196 So.2d 748 (Fla. 1967), the supreme court's landmark decision on apportionment of permanent disability benefits under the Florida Worker's Compensation Act, the court plainly stated: Section 440.02(19), [2] as well as the other apportionment provisions, Sec. 440.15(5)(c), [3] is a limitation on the operation *629 of the universally accepted maxim that the employer takes the employee as he finds him....

...g condition reasonably attributable to the accident shall be compensable, with respect to permanent impairment or death." Ch. 80-236, § 2, Laws of Florida. Unquestionably, this amendment made the specific "permanent impairment" benefits provided in section 440.15(3)(a) subject to apportionment....

...It was next observed that the sixty percent psychiatric impairment could not be directly subtracted from the permanent total disability award because: Although the award in this case is based upon the medical evidence of total psychiatric impairment, it clearly is not an award for total permanent impairment because § 440.15(3)(a), Florida Statutes, limits impairment awards to other defined losses not including total physical or psychiatric impairment....

...orkers' Compensation "for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings" which, in turn, "shall be based on generally accepted medical standards for determining impairment." § 440.15(3)(a), Fla....

...The term "permanent impairment" is used in several different sections of chapter 440 in contexts which clearly illustrate that the statutorily defined concept of "permanent impairment" is quite different from the concept of "disability." The term "permanent impairment" is used in several portions of section 440.15, entitled "Compensation for disability." It appears in the provision for specified "impairment benefits" under section 440.15(3)(a), i.e., "amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1)." Significantly, these specified permanent impairment benefits are not payable if the injured worker is also entitled to permanent total disability under subsection 440.15(3)(a)1. "Permanent impairment" is similarly used in section 440.15(5)(b) dealing with compensable permanent impairment benefits under section 440.15(3)(a) due to aggravation or acceleration of a preexisting condition. [6] The term is also used in defining the right to "wage-loss benefits" under section 440.15(3)(b). But there is no language directly relating a "permanent impairment" rating to either permanent total disability benefits under section 440.15(1) or to temporary total disability benefits under section 440.15(2). "Total disability" is defined in section 440.15(1)(b) strictly in terms of the facts and the inability of the claimant to engage in gainful employment, irrespective of the percentage rating of permanent impairment. In short, nothing in the statutory language in section 440.15 indicates that "permanent impairment" is intended to include "permanent, total loss of wage earning capacity" in the sense of permanent total disability, as stated in Goldsmith I, 465 So 2d at 658....

...Section 440.25(3)(b) specifies that "[n]o deputy commissioner shall make a finding of a degree of permanent impairment that is greater than the greatest permanent impairment rating given the claimant by any examining or treating physician, except upon stipulation of the parties." This subsection, read in pari materia with section 440.15(3)(a), makes plain that findings of permanent impairment ratings must be based on and not exceed the rating given by a physician....

...permanent impairment, in determining the extent of disability to earn income. E.g., Lemus v. Industrial Sites Services, 482 So.2d 472 ( see p. 630, supra ). Section 440.20(3) specifies that "[i]mpairment benefits shall be payable in accordance with s. 440.15(3)(a)2," which provides for listed impairment benefits....

...preexisting permanent physical impairment suffers a subsequent "permanent impairment" which merges with the preexisting condition so as to cause a "permanent impairment," the employer may be reimbursed for sixty percent of the benefits paid under subsection 440.15(3)(a), the section that provides for specified permanent impairment benefits. [8] Subsection 440.49(2)(c)2 makes similar provision for reimbursement of "wage loss benefits" paid pursuant to subsection 440.15(3)(b)....

...[10] It is readily apparent that throughout chapter 440 the term "permanent impairment" has been consistently used in the sense of a percentage rating assessed by a physician for the anatomical or functional loss of the body or limbs, either in relation to the permanent impairment benefits provided in subsection 440.15(3)(a) or for wage-loss benefits as defined in subsection 440.15(3)(b)....

...onale of the Evans decision? We think not. For the following reasons, we hold that PTD remains apportionable if the disability falls into the third category described in Evans (see p. 628, supra ). As stated, permanent total disability is defined in section 440.15(1) in terms of total permanent inability, based on the facts, to engage in gainful employment. The fact of "permanent impairment" must be considered along with all other factors shown by the evidence in determining permanent total disability. Lemus v. Industrial Sites Services, 482 So.2d 472. Subsection 440.15(5)(a) plainly states that "[t]he fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor preclude bene...

...due to a compensable accident despite the presence of such preexisting condition. As stated in Goldsmith I, since only compensation for "temporary disability, medical benefits, and wage-loss benefits" are expressly exempted from apportionment by subsection 440.15(5)(a), the failure to include permanent total disability in the enumeration of nonapportionable benefits indicates that PTD benefits remain apportionable only if the conditions set forth in Evans are met....

...shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in paragraph (d) of this subsection. § 440.15(5)(c), Fla....

...(2)(b)1 (both before and after 1979) to mean "any permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging process." [6] Section 440.15(5)(b) states: If a compensable permanent impairment, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger with a preexisting impairment, an employee eligible to recei...

...ct to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for 60 percent of all impairment benefits which the employer has been required to provide pursuant to s. 440.15(3)(a) as a result of the subsequent accident or occupational disease....

...he limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for 60 percent of all compensation for wage loss which the employer has been required to provide pursuant to s. 440.15(3)(b) during the first 5 years after the date of maximum medical improvement and for 75 percent of all compensation for wage loss which the employer has been required to provide after the 5-year period following the date of maximum medical improvement....

...The evidence does support a finding that claimant has established an ability to earn a certain level of wages per hour by reason of his employment experience with Curtis Mathes, so this earning ability must be compared with his average weekly wage at time of injury. Section 440.15(4)(b), Florida Statutes (1985), states in part: In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to ea...

...f the employee did not limit his income or accepted appropriate employment. In those instances in which an employee's actions can be regarded as a voluntary limitation of income, the employee is still entitled to the benefit of deemed earnings under section 440.15(4)(b)....

...was inadequate. In his first point on appeal, claimant contends the deputy commissioner erred in denying his claim for TPD benefits for the stated reason that there was no causal connection between the claimant's wage loss and his injury. We agree. Section 440.15(4)(b), Florida Statutes (1985), states in part: Whenever a wage-loss benefit as set forth in paragraph (a) may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury....

...The claimant appeals a workers' compensation order by which he was awarded compensation which included wage loss benefits commencing on November 6, 1990. The claim for wage loss prior to that date was denied, based on the absence of an adequate job search and the application of section 440.15(3)(b)2, Florida Statutes (1990). We conclude that the employer/servicing agent's failure to properly notify the claimant of a job search responsibility precludes the denial of benefits prior to July 1, 1990, when the amended version of section 440.15(3)(b)2 became effective....

...claimant eventually performed an adequate job search after November 6, 1990. The absence of an adequate job search during earlier periods does not preclude an award of benefits for wage loss which occurred prior to July 1, 1990, when an amendment to section 440.15(3)(b)2 became effective. [1] As amended, section 440.15(3)(b)2 now provides, in part, that: Wage-loss forms and job search reports are to be mailed to the employer, carrier, or servicing agent within 14 days after the time benefits are due....

...g Co. v. Sheffield, 401 So.2d 1169 (Fla. 1st DCA 1981), and a claimant would be relieved of any job search requirement despite having actual knowledge of this responsibility through the advice of an attorney. See e.g., Morris. The amended version of section 440.15(3)(b)2 now predicates a claimant's job search responsibility upon actual knowledge, which was furnished through the advice of the claimant's attorney in the present case....

...ht in any given mode of procedure. See Walker. Various cases have emphasized this distinction, and in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), rev. denied, 458 So.2d 271 (Fla. 1984), this court determined that an earlier amendment to section 440.15(3)(b)2, addressing the necessary elements for a wage loss claim, was a procedural burden of proof enactment which could be applied without regard to the date of accident and injury....

...limit thus may be applied prospectively to wage loss periods occurring after the July 1, 1990 effective date of the amendment, without regard to the date of accident and injury. We therefore conclude that the contested provisions in the amendment to section 440.15(3)(b)2 are applicable to claims for wage loss periods which occur after the effective date of the amendment....

...the necessary causation was established. Accordingly, we reverse the appealed order only as to the denial of wage loss benefits prior to July 1, 1990. The order is otherwise affirmed, and the cause remanded. BARFIELD and KAHN, JJ., concur. NOTES [1] Section 440.15(3)(b)2 was amended by chapter 90-201, Laws of Florida, made effective as of July 1, 1990....

...which was after the pertinent periods of wage loss in the present case), and that the decision would operate only prospectively. [2] In GCC Beverages v. Simmons, 571 So.2d 59 (Fla. 1st DCA 1990), this court suggested that the job search amendment to section 440.15(3)(b)2 is a substantive change which should not be applied in connection with an injury occurring before the effective date of the amendment....

...te of the amendment. GCC Beverages was subsequently cited in Florida Community Health Center v. Ross, 590 So.2d 1037 (Fla. 1st DCA 1991), a case which involved a different and dissimilar amendment. Having now thoroughly considered the application of section 440.15(3)(b)2, as amended by chapter 90-201, in the present case, we are not persuaded by the suggestion in GCC Beverages....

...involved in Johnson from the occurrence of a claim under other limitations provisions. Dade County further referred to the pertinent occurrence in connection with a provision for final repose. See also, Melendez. In the present case the amendment to section 440.15(3)(b)2 imposes a 14-day time limit which dates from the time that wage loss benefits are due....

...[1] Temporary total disability was *579 paid for a year during which surgery was performed six times on claimant's hand, and wage loss was paid thereafter through February 1983. Issues on appeal are (1) sufficiency of proof of total disability "due to physical limitation" under § 440.15(1)(b), Florida Statutes; (2) voluntary limitation of income by refusing offered employment; and (3) duty of the deputy, before adjudicating permanent total disability, to determine whether claimant may be rehabilitated to suitable gainful employment....

...Appellant's contention with respect to proof of permanent total disability appears to be that the following statutory language precludes permanent total disability compensation in any case in which the medical evidence is that claimant is capable of light work: 440.15 ......

...nt from the court's reversal of the deputy's denial of wage-loss benefits. A wage-loss claimant has the burden of proving all elements of his claim for wage-loss benefits. Holiday Care Center v. Scriven, 418 So.2d 322, 326 (Fla. 1st DCA 1982). Under Section 440.15(3)(b)2, Florida Statutes, the employee has the burden "to establish that any wage loss claimed is the result of the compensable injury." The burden remains on an employee who files monthly wage-loss claims to demonstrate an adequate and good faith attempt to secure employment commensurate with his abilities....

...In that event, the E/C may utilize modification proceedings to establish a change in circumstances by demonstrating that suitable employment is available to the claimant which would require a reduction in wage earning capacity benefits... . 411 So.2d 919, at 926, n. 14. [3] 440.15 ........

defenses by employers and employees alike," section 440.015, Florida Statutes (1995), the common law Frye

...refore his part-time wages as an instructor at PHCC were improperly included in the AWW. Claimant of course has the burden of proving all elements of his wage loss claim. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). Pursuant to Section 440.15(3)(b)2, Florida Statutes (1981), a claimant must show "that any wage loss claimed is the result of the compensable injury." As we observed in Williams Roofing, Inc....

...his income is not persuasive." Obviously, claimant, under such circumstances, would be entitled to wage loss as to any diminution in his wages from his primary source of employment. The employer has failed to take proper account of that provision of section 440.15(3)(b)2, providing: "The amount determined to be the ......

...rk with employer at a reduced rate of pay that was directly due to his physical limitations resulting from the injury). Once the claimant has met his initial burden of showing "that any wage loss claimed is the result of the compensable injury", [1] section 440.15(3)(b)2, (1981), the burden is then placed upon the employer to demonstrate that the claimant has refused to work or that he has voluntarily limited his income....

...ed in the context of particular facts, and our opinions must be read in that light. Publix Supermarkets, Inc. v. Franklin, 467 So.2d 1031, 1033 (Fla. 1st DCA 1985) (e.s.). For example, Publix Supermarkets interpreted the deemed earnings provision of Section 440.15(3)(b)2, Florida Statutes (1981), as permitting opinion testimony to establish indirectly the value of that part of claimant's wage loss which was attributable to medical restriction, and sustained an award of wage loss, despite the abs...

...NOTES [1] This showing requires "evidence indicating that the compensable physical limitation is a contributing causative factor in the wage loss claimed." City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984) (e.s.). Even though Rumph discussed the claimant's initial burden after the 1983 amendment to section 440.15(3)(b)2, this court construed the amendment as "emphasizing" or clarifying, not changing, the burden established in the pre-1983 version of section 440.15(3)(b)2....

...This case arises out of an order of the Industrial Relations Commission, affirming an order of the Judge of Industrial Claims which took into account the seasonal nature of a claimant's pre-injury employment in determining her diminution of wage earning capacity for permanent partial disability benefits under section 440.15(3)(u), Florida Statutes (1974 Supp.)....

...nstruction which is most favorable to the employee." Henderson v. Sol Walker & Co., 138 So.2d 323, 327 (Fla. 1962). [3] The critical component in the formula for determining the duration of compensation for Kerce's permanent partial disability under section 440.15(3)(u), Florida Statutes (1974 Supp.)-"diminution of wage earning capacity"-presumptively represents the difference between the injured employee's wage earning capacity before and after the injury....

...that the seasonal nature of an injured employee's work should have an adverse effect on the computation of average weekly wage. We hold that the judge and Commission departed from the essential requirements of law when they held, for the purposes of section 440.15(3)(u), Florida Statutes (1974 Supp.), that the seasonal nature of Kerce's pre-injury employment could be taken into account in calculating Kerce's wage earning capacity before her injury....

...NOTES [1] The statutory and decisional law pertaining on the date that an accident has occurred must prevail in a workmen's compensation case. Simmons v. City of Coral Gables, 186 So.2d 493 (Fla. 1966). In 1979, however, the legislature abolished permanent partial disability as provided for in section 440.15(3)(u), Florida Statutes (1974 Supp.), and replaced it with the concept of "wage-loss"....

...esulting five (5%) percent permanent impairment rating according to Florida Impairment Guidelines. Plaintiff alleges that on that date he became entitled to payment of fifty-two (52) weeks of "wage loss" benefits in accordance with Florida Statutes, Section 440.15(3)(b) (1990)....

...r impairment rating. Consequently, Plaintiff alleges that he was discriminated against on the basis of his disability, in violation of the ADA. Regarding Title I of the ADA, Plaintiff contends that by engaging in the enforcement of Florida Statutes, Section 440.15 (1990) after the enactment of the ADA, Defendants denied his right to have equal eligibility for "wage loss" benefits to which other disabled injured workers were entitled. Additionally, Plaintiff alleges that the State Defendants have violated Title II of the ADA by enacting and enforcing Florida Statutes, Section 440.15 (1990), which operates to deny Plaintiff worker's compensation benefits available to other persons under the FWCA. Therefore, Plaintiff seeks a judgment declaring that Florida Statutes, Section 440.15 (1990) is violative of the ADA....

...inability to work. Categories of benefits under the FWCA are delineated as: (1) temporary total disability; (2) permanent total disability; (3) temporary partial disability; and (4) permanent partial disability. Florida Statutes, Sections 440.14 and 440.15 (1990)....

...tion 223 of this title. Florida law, as the Secretary admits, does reduce workers’ compensation payments to the extent that those payments and social security benefits aggregate to more than eighty percent of pre-disability earnings. See Fla.Stat. § 440.15(10); Dep’t of Transp., Div....

...shall be reduced pursuant to this subsection until the Social Security Administration determines the amount otherwise payable to the employee under 42 U.S.C. SS. 423 and 402 and the employee has begun receiving such social security benefit payments. Fla.Stat. § 440.15(10)(c)....

...On February 1, 1994, Cramer was taken off work totally due to his injuries. On June 27, 1994, Broedell terminated Cramer's employment. Cramer's primary treating physician opined that Plaintiff had reached maximum medical improvement and assigned him a 9% impairment rating pursuant to the requirements of § 440.15(3)(a) (Supp.1990). Plaintiffs allege that, on August 31, 1994, Cramer filed a claim for "wage-loss" benefits, pursuant to § 440.15, Florida Statutes (Supp.1990)....

...At that time, Kessler was unable to continue working and was taken off work. Kessler's primary treating physician opined that she had reached maximum medical improvement and assigned her a 7% impairment to the body as a whole pursuant to the requirements of § 440.15(3)(a) (1993). Kessler alleges that she filed a claim for disability benefits, seeking "impairment" disability benefits, pursuant to § 440.15, Florida Statutes (1993)....

...ties Act of 1990 (ADA), 42 U.S.C. § 12112 et seq. together with 29 C.F.R. §§ 1630.4, 1630.5, 1630.7, and 1630.1. Plaintiff Earl Cramer brings this action individually and as a class representative of Plaintiffs entitled to "wage-loss" pursuant to Section 440.15 (Supp.1990). Robin Kessler brings this action individually and as a class representative of Plaintiffs entitled to disability "impairment" benefits pursuant to § 440.15 (1993). The Plaintiffs allege that by engaging in the enforcement of Florida Statutes, Sections 440.15 (Supp.1990) and 440.15 (1993) after the enactment of the ADA, Defendants have denied Plaintiffs a right to have equal eligibility for "wage-loss" and "impairment" benefits in a manner which is consistent with the ADA. The Plaintiffs seek a judgment declaring that Florida Statutes, §§ 440.15 (Supp.1990) and 440.15 (1993) are violative of the ADA....

...There are four different categories of benefits. The first two categories, temporary and permanent total disability benefits, are provided to those persons whose injuries prevent them from working for either a specific period during a recovery, or indefinitely. § 440.15(1) and (2), Florida Statutes....

...The benefits are calculated as a percentage of the employee's most recent salary, and are available only to persons who are not physically capable of engaging in gainful employment. Id. A third category of benefits are those for persons suffering from temporary partial disabilities. § 440.15(4), Florida Statutes. Under § 440.15(4), an individual with a temporary disability that is not so severe as to prevent work completely is paid a percentage of the difference between the employee's average weekly wage and the salary he is able to earn while recovering from the temporary partial disabilities....

...sh that any wage-loss claimed is the result of the compensable injury. § 440.14(4)(b), Florida Statutes. Florida's workers' compensation law also provides for the benefits at issue in the instant case: "permanent impairment and wage-loss benefits." Section 440.15(3)(a), Florida Statutes (1993), one of the provisions challenged by the Plaintiffs, provides that a person with a permanent partial impairment may receive impairment benefits....

...Schedule shall be temporarily used unless that schedule does not address an injury. In such case, the Guides to the Evaluation of Permanent Impairment by the American Medical Association shall be used. Another section challenged by the Plaintiffs is § 440.15(3)(b), Florida Statutes (Supp....

...that the permanent impairment results in a work-related physical restriction which affected the employee's ability to perform the activities of his usual or other appropriate employment. Such benefits are to be based on actual wage-loss. Pursuant to § 440.15(3)(b)4., durational limitations are imposed on the period of time during which wage-loss benefits may be claimed, such that wage-loss benefits are available longer for higher impairment ratings....

...Further, the Florida Legislature has indicated that workers' compensation is "based on mutual renunciation of common law rights and defenses" in order to establish a scheme to "assure the quick and efficient delivery of disability and medical benefits." § 440.15, Florida Statutes (1993)....

...Similar to the plaintiffs in Choate and Traynor, the Plaintiffs in the instant case are seeking a determination that the federal law requires that benefits extended to one category of individuals with disabilities be extended to all other individuals with disabilities. The Plaintiffs allege that § 440.15 (Supp.1990) and § 440.15 (1993) "arbitrarily use standards and criteria which discriminate against, `disparately impact' and `disparately treat' disabled persons with a low impairment rating in favor of other disabled persons with a higher impairment rating....

...At the time of the injury Driggers had no more than 10% use of said eye, having lost the remaining 90% in a childhood accident. Driggers was able to return to work September 1, 1949. These facts are not in dispute. The Deputy Commissioner awarded full permanent disability compensation of 175 weeks for "eye lost" under Section 440.15(3)(e), F.S.A. and rejected the carrier's contentions (1) that "since the Act provides in Section 440.15(3)(p) that 80% loss of vision of the eye shall be considered as the same as the `loss of eye', for compensation purposes, that the intent of the Act is to compensate for loss of vision, rather than for loss of organ itself." and (2) "that claimant lost his eye as a result of a `subsequent accident'" within the intendment of the subsequent accident Section, viz.: 440.15(5)(c) of the Act....

...eye or of the vision thereof as the result of an injury is not affected by the fact that it was previously defective, although there is some authority to the contrary." (Emphasis supplied.) The Act itself provides for the loss of an eye as follows: "440.15(3)(e). Eye lost, one hundred and seventy-five weeks compensation." As we construe this portion of the Act, it is talking about the loss of the organ itself. Further along in the same Section we find the Act dealing with loss of vision. This Section is: "440.15(3)(p)....

more likely intended by the legislature. See § 440.015, Fla. Stat. (Supp.1994) ("the laws pertaining

prompt and cost-effective delivery of payments. § 440.015, Fla. Stat. (Supp.1994). In my judgment, placing

...permanent partial disability rating should be based on the body as a whole rather than the left hand. The contention presents for our consideration whether compensation should be allowed for permanent partial disability for the loss of a hand under Section 440.15(3) (c), Florida Statutes, F.S.A., or whether it should be allowed under Section 440.15(3) (u), Florida Statutes, F.S.A., covering "unscheduled injuries"....

...ensation is to be paid. It is even more important because for the scheduled injury of loss of a hand, the extent of permanent partial disability is specifically established by the statute. On the other hand, we have held that under the provisions of Section 440.15(3) (u), Florida Statutes, F.S.A., the deputy commissioner shall take into consideration not only the functional disability but the industrial or earning capacity disability which might be influenced by such elements as education, age, experience, type of work and the like....

...They are, therefore, not too much at variance as to the technical designation of Mr. Kashin's shoulder condition. The respondents, however, insist that in the ultimate the disability that Mr. Kashin has suffered has been a loss of a hand which is a scheduled injury under Section 440.15(3) (c), Florida Statutes, F.S.A., which provides for the payment of sixty percent of the average weekly wages for a period of 175 weeks....

...App. 77, 71 S.E.2d 666; Texas Employers' Ins. Ass'n v. Polk, Tex. Civ.App. 1954, 269 S.W.2d 582. In the instant case, therefore, there was present competent substantial evidence upon which the deputy could make a finding of compensable injury under Section 440.15(3) (u), Florida Statutes, F.S.A., and the full Industrial Commission ruled erroneously when they held to the contrary....

...nt to the date of maximum medical improvement. Cf., Bordo Citrus Products v. Varnadore, IRC Order 2-3541 (Sept. 20, 1978), cert. denied, 372 So.2d 466 (Fla. 1979). Employer/carrier also contends that the deputy erred by "deeming," in accordance with § 440.15(4)(b), Florida Statutes (1979), minimum wage as the amount claimant was able to earn during his period of temporary partial disability. Section 440.15(4)(b) was properly invoked, in the circumstances of this case, upon the deputy's determination that claimant failed to conduct an adequate work search or otherwise sufficiently attempt to return to work....

...carrier are entitled to take as an offset of the permanent total disability (PTD) benefits paid him based upon the federal social security disability benefits he is receiving. We reverse. The workers' compensation disability benefits offset statute, section 440.15(9)(a), Florida Statutes (1991), provides in relevant part: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...The employer/carrier calculated an offset of $90.94, which reduced the claimant's total disability benefits to $245.21 per week, less than he had been receiving in workers' compensation benefits alone. The claimant argued that the offset law does not contemplate such a result, that section 440.15(9)(a) and 42 U.S.C....

...However, it is well settled that when, as in this case, the application of statutory provisions appears to indicate a conflict between or among them, the courts are required to read the provisions in a manner that resolves the apparent conflict. We interpret the first sentence of section 440.15(9)(a) as setting out the general parameters for determining the offset to which the employer/carrier is entitled, whereas the second sentence imposes an absolute limitation on the amount of the offset so calculated, so as not to reduce...

...et amount exceeds the total amount of social security benefits due a claimant and his family, which is the maximum federal social security offset allowed under 42 U.S.C. § 424(a), and therefore the maximum workers' compensation offset allowed under section 440.15(9)(a)....

...Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982), to deny wage loss benefits, since the medical testimony reflected that Trindade had no loss of range of motion in his knee, and thus had no permanent impairment assignable under the AMA Guides. Trindade concedes that Section 440.15(3)(a)3., Florida Statutes (1979), as interpreted by this court in Mathis, purports to require the use of the AMA Guides to determine the existence and degree of permanent *1009 impairment....

...Zeide testified that he was unable to give a permanent impairment rating to the injury based on the AMA Guides as they dealt only with loss of range of motion in rating knee disability, and Trindade's knee had instability due to excessive range of motion. In Mathis, we determined that Section 440.15(3)(a)3....

...ay other than by loss of range of motion. Our efforts to give the Guides exclusive effect, and by doing so to facilitate the goal of uniformity (in determining the existence of and in rating permanent impairment) expressly sought by the enactment of Section 440.15(3)(a)3., have been undertaken in anticipation of the adoption by the Division of a more comprehensive schedule for determining the existence and degree of permanent impairment as mandated by the same statute....

...fically demonstrable findings." Further, the schedule shall be based on "generally accepted medical standards for determining impairment," and "may incorporate all or part of any one or more generally accepted schedules used for such purpose, ... ." Section 440.15(3)(a)3....

...e Federal and State Constitutions. Fourteenth Amendment, Section 1, United States Constitution; Article I, Sections 2, 21, Florida Constitution. We therefore hold that for purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guide...

...1st DCA 1982), Morrison & Knudsen/American Bridge Division v. Scott, 423 So.2d 463 (Fla. 1st DCA 1982), and Decor Painting, et al. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981)? 3. What is the effect, in terms of possible exclusivity and irrebuttability, of section 440.15(3)(a)3....

prompt and cost-effective delivery of payments. § 440.015, Fla. Stat. (1999). This Court has also described

...The E/C argues on appeal that 1) no competent substantial evidence supports the award of temporary partial disability (TPD) benefits, and 2) the Judge of Compensation Claims (JCC) erred in failing to apportion the indemnity and medical benefits awarded to Claimant, as required by section 440.15(5)(b), Florida Statutes (2008)....

...manent impairment or disability attributable to Claimant’s preexisting condition. In response, Claimant argues that apportionment is appropriate only after a claimant reaches maximum medical improvement (MMI) and that the JCC correctly interpreted section 440.15(5)(b) to require proof of a permanent condition caused by the workplace accident....

...ll be upheld on appeal if there is any basis which would support the judgment in the record). Analysis For accidents occurring prior to October 1, 2003, apportionment of temporary disability benefits and medical benefits was specifically prohibited. Section 440.15(5)(a), Florida Statutes (2002), provided, in relevant part, that “[cjompensation for temporary disability benefits, medical benefits, and wage-loss benefits shall not be subject to apportionment.” Accord Russell House Movers, Inc....

...Nolin, 210 So.2d 859, 862-63 (Fla.1968) (holding that “compensation for temporary disability and medical benefits are not apportionable under the general scheme and intent of our workmen’s compensation law”) (emphasis in original). In 2003, the Legislature amended section 440.15(5), Florida Statutes....

...ut the preexisting condition based on the anatomical impairment rating attributable to the preexisting condition. Medical benefits shall be paid apportioning out the percentage of the need for such care attributable to the preexisting condition .... § 440.15(5)(b), Fla....

...The revised statute unambiguously provides that “only the disabilities and medical treatment associated with a compensable injury shall be payable,” and it makes no exception for benefits provided before the attainment of MMI. Consequently, we find section 440.15(5)(b) now allows for the apportionment of all indemnity benefits, both tempo *796 rary and permanent, and all medical benefits, both before and after MMI....

...e of a permanent impairment or disability attributable to this accident or an anatomical impairment rating attributable to Claimant’s preexisting condition. In reaching this determination, the JCC apparently relied solely on the second sentence of section 440.15(5)(b), which states that “[t]he degree of permanent impairment or disability attributable to the accident or injury shall be compensated ......

...Thus, the JCC erred to the extent she relied on this sentence of the statute in refusing to apportion Claimant’s benefits. The apportionment of temporary indemnity benefits, permanent indemnity benefits, and medical benefits is governed by distinct clauses contained within section 440.15(5)(b). Specifically, the first sentence of section 440.15(5)(b) addresses apportionment of temporary indemnity benefits, in the clause indicating that “only the disabilities ... associated with [the] compensable injury shall be payable under this chapter, excluding the degree of disability ... existing at the time of the ... accident.” The second sentence of section 440.15(5)(b) addresses apportionment of permanent indemnity benefits, and requires evidence of a “permanent impairment or disability attributable to the accident or injury” and an “anatomical impairment rating attributable to the preexisting condition.” Finally, the third sentence of section 440.15(5)(b) addresses medical benefits and provides for payment “by apportioning out the percentage of the need for such care attributable to the preexisting condition.” Because the E/C sought to apportion Claimant’s medical benefits a...

...ermanent impairment or disability attributable to the November 2008 accident. * Notwithstanding the JCC’s error, we affirm the JCC’s ultimate determination that the E/C failed to present sufficient evidence entitling it to apportionment. *797 “Section 440.15(5)(b) is applicable only when a claimant’s injury is the result of an acceleration or aggravation of a ‘preexisting condition.’ ” Mullins v....

...nt’s need for benefits. The policy reasons underlying Pearson and Proctor are equally applicable in the apportionment context. Thus, we see no reason why the definition of “preexisting condition” adopted in those cases should not also apply to section 440.15(5)(b). Accordingly, to avail itself of the apportionment defense under section 440.15(5)(b), the E/C must present evidence of the extent of the Claimant’s preexisting condition resulting from nonoccupational causes....

...Because temporary indemnity benefits are payable only if overall MMI has not been reached, and because permanent impairments and disabilities are not established before the attainment of MMI, the apportionment of temporary indemnity benefits cannot be conditioned on the existence of a permanent impairment. See §§ 440.15(2)(a), (4)(a), Fla....

...and Accordingly, it is clear, that evidence of an unsuccessful search is needed when determining whether a Claimant has met her burden of proof that the wage loss is due to her injuries. Accordingly, we write to clarify the legal standard governing the payment of TPD benefits pursuant to section 440.15(4), Florida Statutes (2007). Distinct from temporary total disability (TTD) benefits, an employee's entitlement to temporary partial disability benefits is predicated on the ability to work, albeit with restrictions. See section 440.15(4)(a)-(e), Florida Statutes (2007) (providing TPD benefits are payable only when employee has been released to perform restricted work); cf. section 440.15(2)(a) (stating TTD benefits are payable for disability "total in character but temporary in quality")....

...The Statute Under the current TPD statute, benefits are payable "if overall MMI has not been reached" and the medical conditions resulting from the accident create restrictions not an absolute prohibition, on the injured employee's ability to return to work, as argued by the E/SA. § 440.15(4)(a), Fla....

...abilities allow her to return to and adequately perform her prior job with the employer, and whether the workplace injury caused a change in employment status resulting in a reduction of her wages below 80% of her pre-injury average weekly wage. See section 440.15(4)(a), Florida Statutes (providing compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn post-injury, as compared to weekly); see also Interim Servs....

...Here, the E/SA argues that Claimant failed to satisfy her burden because she did not prove that her restrictions prohibited her from performing all other *800 potentially available (but unspecified) employment. That standard, however, governs total, not partial, disability claims. See section 440.15(1) Florida Statutes (2007) (stating, to prove entitlement to permanent total disability benefits, employee "must establish that he or she is not able to engage in at least sedentary employment, within a 50 mile radius" of his residence); see also section 440.15(2) (providing for payment of TTD "in the case of disability total in character but temporary in quality")....

...ffered or procured for her. See e.g. Moore v. Servicemaster Commercial Services, 19 So.3d 1147, 1150-51 (Fla. 1st DCA 2009) (holding appropriateness of an offer of modified employment should be evaluated in accordance with the standards set forth in section 440.15(6) and consistent with the Legislature's intent that the statute be interpreted to facilitate the worker's return to employment at a reasonable cost to the employer). TPD benefits are also not payable if the employee is terminated from post-injury employment for "misconduct." § 440.15(4)(e), Fla....

...Furthermore, if an injured employee who is still receiving TPD benefits leaves her post-injury employment "without *801 just cause" as determined by the JCC, TPD "shall be payable based on the deemed earnings of the employee as if [she] had remained employed." § 440.15(7), Fla. Stat. (2007). Although the express "voluntary limitation of income" defense has been removed from the statute, section 440.15(4)(a) "pins remuneration on what the employee `is able to earn' post-injury." Fardella v. Genesis Health, Inc., 917 So.2d 276, 277 (2005). Additionally, this court has analogized the statutory defense of "refusal of suitable employment" found in section 440.15(6) to a voluntary limitation of income defense....

...a. Admin. Code R. 69L-3.01915(2)(a)-(c). The express statutory purpose of this requirement is to "simplify the comparison of the pre-injury average weekly wage with the salary, wages, and other remuneration the employee is able to earn post-injury." § 440.15(4)(a), Fla....

...onstrate error based on the JCC's consideration of these factors. Job Search Prior versions of the Workers' Compensation Law imposed an express good-faith job search obligation on the part of an injured employee claiming entitlement to TPD benefits. § 440.15(4)(b), Florida Statutes (Supp.1990)....

...The JCC's findings are supported by competent substantial evidence and the JCC applied the correct legal standard in determining Claimant's entitlement to TPD benefits. The JCC's order is therefore AFFIRMED. PADOVANO, THOMAS, and CLARK, JJ., concur. NOTES [1] It was subsequent to Ahles , that the Legislature amended section 440.15(4) to create an absolute bar to TPD benefits to those employees terminated from post-injury employment for "misconduct." § 440.15(4)(e), Fla....

reemployment at a reasonable cost to the employer." See § 440.015, Fla. Stat. (1995). The employer has an obligation

...Before January 1, 1994, the employer/carrier (E/C) accepted Holley as permanently and totally disabled. On January 6, 1994, Alan Duggan, a representative of the carrier, notified Holley, through his attorney, that his permanent total disability (PTD) benefits would be suspended pursuant to section 440.15(1)(f)2.b., Florida Statutes (Supp.1994), unless Holley applied for social security disability benefits....

...Holley's attorney responded to this notification in a letter dated January 10, 1994, consisting of the following statements: I have your letter of January 6, 1994. I dare you to suspend Mr. Holley's compensation benefits upon your perceived notion that 440.15(1)(f)2.b....

...On January 30, 1994, because of Holley's failure to apply for social security disability, the E/C suspended payment of PTD benefits. Holley then filed a petition seeking payment of those benefits. In her order, the judge of compensation claims (JCC) found section 440.15(1)(f)2.b....

...equest by the employer or carrier in the manner prescribed by such rules or if any employee who is receiving permanent total disability benefits refuses to apply for or cooperate with the employer or carrier in applying for social security benefits. § 440.15(1)(f)2.b., Fla.Stat. (Supp.1994) (underlined portion indicates language added by amendment at issue, Ch. 93-415, § 20, 1994 Fla.Laws 62, 120). In 1980, the Florida Supreme Court determined that the statute authorizing the E/C to take the social security offset, section 440.15(10), Florida Statutes, is procedural....

...The supreme court concluded, however, that the claimants' substantive rights were not affected and therefore the amendment authorizing the offset should apply retroactively: It is clear to us that neither [claimants'] substantive rights have been impaired by the implementation of the section 440.15(10) offset....

...The claimants only vested right in this case is to receive a certain total dollar amount in combined state and federal disability payments and neither has demonstrated that he or she has suffered any diminution of those benefits by reason of the subsequent enactment and implementation of the offset authorized by section 440.15(10)....

...result in the discontinuance of PTD benefits. The amended statute specifically indicates that the E/C may suspend PTD benefits when a claimant "refuses to apply for or cooperate with the employer or carrier in applying for social security benefits." § 440.15(1)(f)2.b., Fla.Stat....

...se. The JCC's order is therefore REVERSED. ALLEN, J., concurs. ZEHMER, C.J., dissents w/written opinion. ZEHMER, Chief Judge, dissenting. The sole issue on appeal is whether the judge of compensation claims erred in ruling that the 1993 amendment to section 440.15(1)(f)2.b., Florida Statutes (Supp.1994), does not apply in this case to authorize the employer and carrier to suspend payment of permanent total disability benefits until the claimant cooperates in applying for social security disability benefits....

...for social security benefits—clearly a substantive right that did not exist before the adoption of the amendment. I would affirm the order under review for this reason. Additionally, I would affirm for the reason that this penal provision added to section 440.15(1)(f)2.b....

...Claimant's attorney responded, in less than professional language I would note, that claimant would not make such an application. Although claimant continued to be PTD, the carrier suspended payment of benefits in reliance on the language added in *649 1993 to section 440.15(1)(f)2.b., asserting claimant's willful failure to cooperate with them in applying for social security disability benefits as the basis for this action....

...Reasoning that section 112, chapter 93-415, Laws of Florida, expressly provided that the 1993 act would take effect on January 1, 1994, except as otherwise provided in the act, and noting that there is no provision in the act for retroactive application of the amendment to section 440.15(1)(f)2.b., the judge declined to apply the penalty provision in this case....

...The majority opinion recognizes that a change in the law is substantive if it changes "the amount of benefits a claimant may receive" or "`substantially changes' the liability of the E/C from what it was when the injury occurred" [citations omitted]. Section 440.15(1)(f)2.b....

...and the employer and carrier accepted claimant as PTD. Prior to the effective date of this amendment the employer and carrier could reduce payment of PTD benefits only after the employee actually began receiving social security disability benefits. § 440.15(10)(c), Fla.Stat....

...t permanently deprives the employee of withheld funds. There is, moreover, an additional but equally compelling reason why the termination of claimant's PTD benefits by the employer and carrier was illegal and not authorized by the 1993 amendment to section 440.15(1)(f)2.b....

...the lower tribunal or in the appellee's brief. E.g., Palm Beach Junior College v. Aho; Freeman v. State, 589 So.2d 368 (Fla. 1st DCA 1991). The statutory language under review was added as a portion of a sentence to previously existing provisions in section 440.15(1)(f)2.b: b....

...who is receiving permanent total disability benefits refuses to apply for or cooperate with the employer or carrier in applying for social security benefits. Ch. 93-415, § 20, at 120, Laws of Fla. Provisions similar to this are included in sections 440.15(1)(f)2.a., [3] *651 440.15(2)(d), [4] and 440.15(10)(c), [5] Florida Statutes (Supp.1994). Reading all of these sections in pari materia, as we must, it is evident that section 440.15(10) controls the implementation of the social security offset provisions in sections 440.15(1)(f) and 440.15(2) and requires the division to adopt rules, pursuant to section 440.591, that set forth "the procedure and manner for requesting the authorization and for compliance by the employee," with those two sections....

...h as the occurrence of injuries or awards of benefits before their effective date, can be resolved in the rule-making process rather than on an ad hoc case-by-case basis. Indeed, the majority opinion recognizes these omissions but simply states that section 440.15(1)(f)2.b....

...I reject the notion that this court should, by implication, add substantive requirements to the statute to define the manner and procedure to be followed when the statutory language charges the division with that responsibility through the exercise of its rule-making power. The inadequacy of the language in section 440.15(1)(f)2.b....

...The employer and carrier contend that, "In order to have a third-party assist an individual in making a social security claim, the individual would have to sign a Social Security Administration Form # 1696, which is an appointment of representative form." [6] Yet nothing in section 440.15(1)(f)2.b....

...ivision implement the provision by rule. For these additional reasons, I would affirm the appealed order in all respects. NOTES [1] This quoted statement from Southern Bakeries refers to the source of payment as between the claimant and the E/C. [2] Section 440.15(10)(c), Florida Statutes, allows an E/C to take an offset only when a claimant is actually receiving social security benefits: "No disability compensation benefits payable for any week ......

...shall be reduced pursuant to this subsection until the Social Security Administration determines the amount otherwise payable to the employee under 42 U.S.C. ss. 402 and 423 and the employee has begun receiving such social security benefit payments." [3] Section 440.15(1)(f)2.a., Florida Statutes (Supp.1994), was not changed by the 1993 amendment and reads: 2.a....

...Neither the division nor the employer or carrier shall make any payment of those additional benefits provided by subparagraph 1. for any period during which the employee willfully fails or refuses to report upon request by the division in the manner prescribed by such rules. [4] Section 440.15(2)(d), Florida Statutes (Supp....

...r refuses to report upon request by the employer or carrier in the manner prescribed by the rules. The rule must require the claimant to personally sign the claim form and attest that he has reviewed, understands, and acknowledges the foregoing. [5] Section 440.15(10)(c), Florida Statutes (Supp....

...A. Linnehan, Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, John M. Abramson of Feldman, Abramson, Smith, Magidson & Levy, Miami, amici curiae. MILLS, Judge. The issue raised by this appeal is whether Section 440.15(3)(a) and (b), Florida Statutes (1981), is unconstitutional because it denies injured workers equal protection and access to the courts guaranteed by Article I, Sections 2 and 21 of the Florida Constitution (1968), and United States Constitution Amendment XIV, Section 1. Section 440.15(3)(a) and (b) is constitutional under both the State and Federal Constitutions....

...Acton urges that we restore the common law remedies to workers who suffer permanent injuries, arguing that with the adoption of the comparative negligence rule by the Supreme Court of Florida there is no need for this provision of the Workers' Compensation Act. Prior to the 1979 amendments to the Workers' Compensation Act, Section 440.15(3), Florida Statutes (1977), provided for the payment of permanent partial disability benefits based on a schedule of specified injuries and on the estimated degree of physical impairment or wage earning capacity....

...Sadowski, Herzog, Butler and Gokel, The 1979 Workers' Compensation Reform: Back to Basics, 7 FSU L. Rev. 641, 652-3 (1975). These are clearly legitimate state interests reasonably furthered by the compensation law, Carr, supra. One of the amicus curiae seeks to raise the constitutionality of Section 440.15(3)(b) *1101 3 d....

...The employee is further benefited by not having any recoverable damages reduced by the proportionate fault of the employee. Certainty and efficiency are given in exchange for potential recovery. This satisfies the requirements of Article I, Section 21, Florida Constitution. We, therefore, hold that Section 440.15(3)(a) and (b), Florida Statutes (1981), does not violate the equal protection and access to courts guarantees of the Florida and United States Constitutions....

...We affirm the judge's finding that claimant *367 gave adequate notice of injury to her employer; reverse the judge's finding that claimant was not an independent contractor; and affirm the judge's award of wage-loss benefits, but remand for application of the "deemed earnings" provision of Section 440.15(4)(b), Florida Statutes (1987) with respect to such award....

...As a result of the accident, according *377 to Dr. Ruddy, claimant cannot work more than 20-30 hours per week, on a part-time light duty basis. [7] Under such circumstances, claimant is entitled to a wage loss award based on her "deemed earnings," pursuant to Section 440.15(4)(b), Florida Statutes, which provides that when a claimant voluntarily limits his income, temporary partial disability benefits shall be based upon "the amount which would have been earned if the employee did not limit his income or accepted appropriate employment." See Sigma Con Commercial Division v....

...or with HJR in the determination of claimant's AWW is REVERSED. This case is REMANDED for (1) a proper calculation of claimant's AWW in accordance with Section 440.14, Florida Statutes (1987) and (2) application of the "deemed earnings" provision of Section 440.15(4)(b), Florida Statutes (1987)....

...*1064 William H. Clark of Clark, Partington, Hart & Hart, Pensacola, for Joe Patti Seafood, Inc., Auto-Owners Ins. Co. and Industrial Relations Commission. ENGLAND, Justice. These cases arise from a 1973 amendment to Florida's workmen's compensation law, section 440.15(10) of the Florida Statutes, permitting Florida employers and carriers to offset their disability payments by the amount of an injured employee's weekly federal social security benefits....

...ned to ensure that injured employees do not receive less under the combined acts than they would under either. [2] The question for decision is whether Florida employers and insurance carriers are entitled to the social security offset authorized by section 440.15(10) for current payments arising out of an accident which occurred prior to that statute's effective date....

...Little Vella Little was permanently and totally disabled in 1966. At the time her average weekly wage [3] was $58.84, of which amount she was entitled to receive no more than eighty percent in combined federal social security and state workmen's compensation benefits, or $47.07 per week. After the enactment of section 440.15(10), American Bankers, the employer's carrier, learned that Little was receiving social security payments of $47.03 per week, and claimed an offset of that amount against their liability....

...Little does not dispute these computations but asserts that her aggregate benefits were in fact reduced by the offset, because the Social Security Administration had failed to claim the offset to which it was entitled for American Bankers' disability payments during the period of time prior to the enactment of section 440.15(10)....

...At the time of his accident Neuman's average weekly wage was $114.62, of which amount he was entitled to receive no more than eighty percent in combined social security and state workmen's compensation benefits, or $91.70 per week. After the enactment of section 440.15(10), the carrier learned that the total social security and workmen's compensation payments to Neuman exceeded $91.70 per week and sought to offset its payments to the extent of that excess....

...In so doing, the carrier reduced its payments from $56 to $42.09-a reduction of $13.91 per week. Neuman points to record evidence that the Social Security Administration had taken an offset for state-generated benefits in computing their payments, and he argues that another offset by the carrier as authorized by section 440.15(10) will effectively cause a reduction in benefits since both sources of disability benefits will be claiming offsets to his detriment....

...fset resulting in decreased benefits [5] and that the State of Florida properly took advantage of the change in federal law by enacting its offset provision, effective on July 1, 1973. Little and Neuman both claim that retroactive application of the section 440.15(10) offset impairs their substantive rights as of the time of the injury....

..."no one has a vested right in any given mode of procedure." Walker v. Laberge, Inc. v. Halligan, 344 So.2d 239, 243 (Fla. 1977). It is clear to us that neither Little's nor Neuman's substantive rights have been impaired by the implementation of the section 440.15(10) offset....

...The claimants only vested right in this case is to receive a certain total dollar amount in combined state and federal disability payments and neither has demonstrated that he or she has suffered any diminution of those benefits by reason of the subsequent enactment and implementation of the offset authorized by section 440.15(10)....

...SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur. NOTES [1] 42 U.S.C. § 424a (1976). The United States Supreme Court upheld this offset provision in Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). [2] § 440.15(10)(a), Fla....

...[3] There is a difference in computation between the federal formula, which considers the "average current wage," and the state calculation, which utilizes the "average weekly wage." A 1975 amendment to the Florida statute allows the employee the higher figure. § 440.15(10)(a), Fla....

...The claimant in this workers' compensation case, Handsome Grace, was awarded (1) evaluation of his back disability by a surgeon to be chosen by agreement; (2) temporary total disability compensation from August 7, 1980 to the date of hearing on September 23 and, in the pro forma language of Section 440.15(4)(c), during the continuance of such disability; and (3) payment for two prescriptions dated August 19 and September 2, 1980, described in a September 15 notice to controvert....

...such period. [5] Provisions of the law as currently amended with respect to permanent impairment rating require use of administrative guidelines "based upon medically or scientifically demonstrable findings" with interim use of the 1977 AMA Guides, § 440.15(3)(a) 3, and further limit permanent impairment ratings to the degree found by any physician, § 440.25(3)(b)....

...Mobley v. Jack & Son Plumbing, 170 So.2d 41, 44 (Fla. 1964). Here, the findings of the physician adopted by the deputy comply with the guides and hence are supported by competent substantial evidence. The deputy awarded PPD benefits to claimant under Section 440.15(3)(u), Florida Statutes (1977)....

...duled portion of the body. Roberts v. Georgia-Pacific Corporation, 394 So.2d 1093 (Fla. 1st DCA 1981). This principle was first stated in Kashin v. Food Fair, Inc., 97 So.2d 609 (Fla. 1957), where a claimant whose hand was amputated sought PPD under Section 440.15(3)(u) based on impairment of the body as a whole because of shoulder pains suffered as a result of the injury. The E/C argued that the injury was a scheduled one under Section 440.15(3)(c) (loss of a hand) and that benefits had to be awarded pursuant thereto....

...Again, neither of the other two physicians testified that the injuries affected claimant's body as a whole, but because there is competent substantial evidence to support the deputy's finding on this point, we affirm. Although we affirm the conversion of claimant's injury from a scheduled injury under Section 440.15(3)(b)(loss of a leg) to an injury on the body as a whole under Section 440.15(3)(u), Dr....

the workers' compensation crisis. See, e.g., § 440.015, Fla.Stat. (Supp.1994). We have considered carefully

...The relevant facts to this appeal are essentially undisputed. Claimant's initial claim alleged that an industrial accident occurred on October 16, 1979, for which 80% temporary total disability benefits were due pursuant to the "catastrophic loss" provisions of Section 440.15(2)(b), Florida Statutes (1979)....

...Specifically, the employer/carrier denied that an injury occurred which had caused damage to claimant's central nervous system. They did admit that a compensable injury had occurred but argued that the claimant was only entitled to TTD benefits at the rate of 66 2/3% of the average weekly wages. See § 440.15(2)(a), Fla....

...They asserted, however, that the 80% rate was not really owed to the claimant and that they had "gratuitously" paid it. Nevertheless, they made no request for a refund or a credit for overpayment. In his order the deputy commissioner found that the claimant had suffered a "catastrophic loss" as defined by Section 440.15(2)(b), Florida Statutes (1979), that he was entitled to be recompensed at the 80% TTD rate, and that attorney's fees were properly due him....

...ions concerning attorney's fees in workers' compensation proceedings have received liberal construction. City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla. 1962). Here, it is apparent that the claimant suffered a catastrophic injury as defined by Section 440.15(2)(b), Florida Statutes (1979), that the carrier denied that such an injury had occurred to the claimant for which compensation benefits were payable, and the claimant prevailed in obtaining these compensable benefits....

...atement by a physician to that effect is not an essential prerequisite to the award of wage-loss benefits. Ordinarily whether claimant has performed a good faith work search or is excused from performing further work search under the requirements of section 440.15 is a question of fact for the deputy commissioner to decide....

...The order authorizes deductions for as long as necessary to recover overpayments Mr. Brown's former employer or its insurance carrier made after January 1, 1994. We affirm. We adopt as our own the ruling the judge of compensation claims made on this point in the final compensation order: 17. As to the issue regarding section 440.15(13), Florida Statutes (Supp.1994), I find this section overrules the judicially created evidentiary presumption that an overpayment of compensation is presumed a gratuity unless a reasonable basis exists for the overpayment. Section 440.15(13) requires repayment of all indemnity benefits received by an employee, "to which [the employee] is not entitled...." This section provides: (13) REPAYMENT.-If an employee has received a sum as an indemnity benefit under any classifi...

...t from Claimant's biweekly compensation benefits reflecting the overpayment of social security benefits between January of 1994 and August of 1994, only. They do not seek reimbursement for overpayment of benefits prior to January of 1994. 18. I find section 440.15(13), Florida Statutes (Supp.1994) is a procedural enactment because it affects a burden of proof or mode of procedure, and therefore is applicable to the Claimant's date of accident....

...If the Deputy finds such a basis the presumption is dissipated and he may allow the overpayment to be applied as a credit against compensation ultimately found to be due even though the compensation may be of another class. Belam Florida Corp. v. Dardy, 397 So.2d 756, 758 (Fla. 1st DCA 1981). Section 440.15(13), Florida Statutes (Supp.1994), which "dissipated" the gift presumption whenever "an employee has received ......

...the date of accident or injury"), review denied, 613 So.2d 6 (Fla.1992), cert. denied, 508 U.S. 913, 113 S.Ct. 2350, 124 L.Ed.2d 258 (1993). Allowing recovery of overpayments occurring on or after January 1, 1994, does not give retroactive effect to section 440.15(13), Florida Statutes (Supp....

worker at a reasonable cost to the employer." § 440.015, Fla. Stat. (1993). To achieve that end, the statute

...ant additional permanent disability for psychiatric impairment. Claimant's second point on appeal urges that the deputy erred in finding that she did not suffer a loss of earning capacity greater than the 10% physical impairment. The applicable law, section 440.15(3)(u), Florida Statutes (1977), provides that permanent partial disability may be measured as either physical impairment or diminution of wage earning capacity, whichever is greater....

...ard temporary disability benefits for periods aggregating more than 104 weeks. A covered employee who is temporarily unable to work at all because of an injury arising out of his or her employment is eligible for temporary total disability benefits. Section 440.15, Florida Statutes (Supp....

...*776 A covered employee whose ability to work is temporarily diminished—but not extinguished altogether—because of an injury arising out of his or her employment is eligible for temporary partial disability benefits, depending on the extent of any diminution in wages. Section 440.15, Florida Statutes (Supp.1994), provides: (4) TEMPORARY PARTIAL DISABILITY.— (a) In case of temporary partial disability, compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly w...

...worker's permanent impairment must be determined. (Emphasis supplied.) Once eligibility for temporary disability benefits ends, eligibility for permanent impairment benefits or permanent total disability benefits may arise under other provisions of section 440.15, Florida Statutes (Supp.1994). To ascertain what limit the statute places on temporary disability benefits, we turn first to the plain language of section 440.15, Florida Statutes (Supp.1994)....

...The language in subsection (2) "not to exceed 104 weeks except as provided in this subsection" is properly interpreted—not in isolation as authorizing 104 weeks of temporary total disability benefits, regardless of other benefits—but with regard to, and in keeping with, the rest of section 440.15, Florida Statutes (Supp....

...n and subsection (2)." In addition, a limitation of 104 weeks on temporary disability benefits meshes with the statutory scheme for determining permanent impairment ratings. Enacted simultaneously with the new limit on temporary disability benefits, section 440.15(3)(a)4., Florida Statutes (Supp.1994), provides: After the employee has been certified by a doctor as having reached maximum medical improvement or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the cert...

...not been certified as having reached maximum medical improvement before the expiration of 102 weeks after the date temporary total disability benefits begin to accrue, the carrier shall notify the treating doctor of the requirements of this section. § 440.15(3)(a)4., Fla....

...(Supp.1994). This provision apparently rests on the assumption that 104 weeks of temporary total disability benefits exhausts entitlement to temporary benefits of any kind. [4] Taking subsections (2) and (4) together, and in pari materia with subparagraph 440.15(3)(a)4., Florida Statutes (Supp.1994), the statute authorizes no more than 104 weeks of temporary disability benefits, whether temporary disability benefits are partial, total, or a combination of the two....

...nd temporary partial disability benefits and are payable for a maximum of 104 weeks. An employee's eligibility for temporary disability benefits ceases after the employee has received 104 weeks of temporary total disability benefits paid pursuant to s. 440.15(2)(a) F.S., or after the employee has received 104 weeks of temporary partial disability benefits paid pursuant to s. 440.15(4) F.S., or after the employee has received 104 weeks of any combination of these two benefits....

...imothy A. Watson & Michael J. Valen, A Historic Review of Workers' Compensation Reform in Florida, 21 Fla. St. U.L.Rev. 501, 520 (1993). [3] The "impairment schedule referred to in subparagraph 2" is a "uniform permanent impairment rating schedule." § 440.15(3)(a)2., Fla. Stat. (Supp.1994). [4] "An employee's entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier ...." § 440.15(3)(a)3., Fla....

...Claimant argues that the order fails to contain sufficient findings of ultimate fact, making meaningful appellate review impossible. Because this issue was not preserved, we affirm. On appeal, Claimant does not raise a substantive argument as to the JCCs application of section 440.15(4)(a)-(e), Florida Statutes (2007), which establishes the legal standard for an award of TPD benefits....

...e post-injury earnings from other employment, or multiple other employments, in order to determine the claimant's earning capacity remaining after the accident. Such remaining earning capacity reduces the claimant's compensation for disability under section 440.15, Florida Statutes....

...the new definition of wages in section 440.02(24) does not impact the calculation of AWW in the present case, is made with full appreciation that the concept of AWW means nothing until it is applied to actually determine compensation benefits under section 440.15, Florida Statutes (Supp. 1990). We have particularly noted the statutory sections controlling temporary and permanent wage loss benefits. Section 440.15(4), *84 Florida Statutes (Supp. 1990), entitled "TEMPORARY PARTIAL DISABILITY," provides that in case of temporary partial disability, "benefits shall be based on actual wage loss." Similarly, the permanent wage loss statute, section 440.15(3)(b), Florida Statutes (Supp....

...who suffers a permanent impairment "which affects such employee's ability to perform the activities of his usual or other appropriate employment," may be entitled to wage loss benefits which "shall be based on actual wage loss." These provisions of section 440.15, like the AWW calculation provisions of section 440.14, were not changed by virtue of chapter 90-201, Laws of Florida....

...The Legislature has clearly provided that wage loss benefits, both temporary and permanent, shall be based on actual wage loss. If claimant's AWW must be computed, as appellees urge, by utilizing section 440.02(24), the JCC would be required to ignore the specific dictates of sections 440.15(3)(b) and 440.15(4), which refer not merely to wages or wage loss, but to actual wage loss....

...Rather, I would adhere to the primary consideration of statutory construction as expressed in Shelby Mutual Ins. Co. v. Smith, 556 So.2d 393 (Fla. 1990), — the plain meaning of the statutory language. Giving effect to section 440.02(24) does not conflict with the references to actual wage loss in *87 section 440.15, Florida Statutes, as such wage loss is circumscribed by the definition of wages, and even under the prior law not all lost earnings were compensated (e.g., noncovered earnings)....

...ured employee under 22 years of age] or paragraph (f). [6] Although not acknowledged by appellees, we note that chapter 440 does contain provisions for compensation which are not based strictly upon AWW as computed under section 440.14(1). See e.g., 440.15(1)(e)1, Fla. Stat. (1991); 440.15(3)(a)1.a....

...White, Pensacola, for appellant. Clayton J.M. Adkinson of Thompson, Adkinson & Beasley, DeFuniak Springs, for appellee. ROBERT P. SMITH, Jr., Judge. The State employer appeals from a compensation order conforming Lindsey's permanent disability benefits to Section 440.15(10), Florida Statutes (1979), which provides that those weekly benefits "shall be reduced" to the extent they and Social Security benefits aggregate more than 80 percent of claimant's average weekly wage. Section 440.15(10)(a)....

...to recoup any part of disability compensation benefits paid before claimant began receiving regular monthly Social Security payments, even though claimant also belatedly received a lump-sum Social Security payment covering benefits not paid earlier. Section 440.15(10)(c). We hold also that the reduction in the weekly compensation benefits contemplated by Section 440.15(10)(a) is to be timely accomplished on the initiative of the employer or carrier, and that current payments may not ordinarily be reduced to recover sums which should have been subtracted earlier, because of contemporaneous Social Security benefits, but were not....

...sation benefits otherwise payable, the Administrator's determination of claimant's entitlement to Social Security may be long delayed, and in the meantime compensation benefits fully paid are wholly due, and they cannot be considered excessive under Section 440.15(10)(a) either then or later. Considering the purpose of periodic compensation benefits and their substitution for wages payable as a contemporary livelihood, we think, as did the judge of industrial claims, that a literal interpretation of Section 440.15(10)(c) is in order, and that contemporaneous compensation benefits cannot be reduced on account of similar benefits paid "until the Social Security Administration determines the amount otherwise payable to the employee under 42 U.S.C. ss. 423 and 402 and the employee has begun receiving such social security benefit payments." Section 440.15(10)(c), Florida Statutes (1977) (emphasis added)....

...benefits paid before Lindsey began receiving periodic Social Security benefit payments. Beulah Baptist Church v. Brantley, IRC Order 2-3907 (Sept. 11, 1979); Pensacola Buggy Works v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979). The same analysis of Section 440.15(10)(c) disposes of the subsidiary contention raised here by the employer, that even if recoupment is properly denied for compensation benefits paid before Lindsey began receiving Social Security benefits on December 2, 1976, the employ...

...the amount now due by the employer to Lindsey on account of amounts excessively withheld from Lindsey's compensation benefits payments after July 31, 1978. We find that any error in the calculation was in the employer's favor, not Lindsey's, because Section 440.15(10)(c) does not authorize entry of an order for the recovery of "excess" compensation benefits paid during a period in which the employer or carrier should have reduced them, on account of contemporaneous Social Security payments, but did not. Beulah Baptist Church v. Brantley, supra; Florida Power & Light Co. v. Atkins, 377 So.2d 57 (Fla. 1st DCA 1979). Chapter 440 generally and Section 440.15(10)(c) particularly are designed to be implemented and enforced, in the interest of both employee and employer, largely at the initiative of the employer or carrier....

...some reporting duty imposed on the recipient by law (there is none) or by a prior order of a judge of industrial claims (there was none here), the claimant-recipient of disability compensation benefits and Social Security benefits is not charged by Section 440.15(10)(c) with responsibility to calculate and remit the amount by which the aggregate payments exceed 80 percent of his average weekly wage, nor with a duty to advise the employer or carrier of its opportunity to make that calculation and reduction....

...or as a reduction of contemporary and future compensation benefits, to recoup for the employer and carrier compensation payments which might and should have been reduced in the past but were not. We recognize the possibility that our construction of Section 440.15(10) will encourage a claimant to delay his application for Social Security benefits, or delay its progress, in order to postpone his ultimate receipt of periodic Social Security benefits and a lump-sum Social Security payment for benefits previously due....

...a Industrial Commission which reversed a compensation order of a deputy commissioner allowing workmen's compensation benefits to the petitioner. The sole point to be determined is whether the injury should be classified as a "scheduled injury" under Section 440.15(3), Florida Statutes, F.S.A., as an injury to petitioner's arm, or whether it should be classified as an unscheduled or "other cases" injury under Section 440.15(3) (u), Florida Statutes, F.S.A....

and defenses by employers and employees alike." § 440.015, Fla. Stat. (2006). Injured employees who fall

...Ford's opinion that no permanent impairment was suffered was based on the results of objective testing as well as his own experience and observation. We decline to disturb the deputy's acceptance of his testimony. Therefore, the denial of wage loss was required by the finding of lack of permanent impairment, see Section 440.15, Florida Statutes (1985), and we affirm on this issue....

...erred in adopting the impairment rating given by one of the examining physicians, Dr. Flynn, which was determined without strictly complying with the American Medical Association's Guides to the Evaluation of Permanent Impairment [1] referred to in Section 440.15(3)(a)3, Florida Statutes (1979)....

...Reckles opinion, largely because of his earlier inconsistent opinions. He also rejected Dr. Samford's opinion because Dr. Samford did not personally observe the claimant. Dr. Flynn's opinion was invalid because his rating was not made in accordance with Section 440.15(3)(a)3 which provides: In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings....

...have. In the order entered December 21, 1994, the JCC found that "the unrebutted evidence clearly indicates the claimant is only able to engage in part-time sedentary work." The JCC determined that Liggon had therefore met her burden of proof under section 440.15(1)(b), Florida Statutes (1991), to show that she is incapable of performing light work on an uninterrupted basis....

...Nonetheless, because on the present record competent substantial evidence does not support the PTD award, no purpose would be served by a remand to, in effect, allow the E/C to present additional evidence. Denial of the second IME was, therefore, harmless. II. PTD Claim Regarding permanent total disability, section 440.15(1)(b), Florida Statutes (1991), provides in pertinent part: [P]ermanent total disability shall be determined in accordance with the facts.......

...Sackheim, indicates that Liggon is capable of part-time sedentary work, as acknowledged by the JCC: "In this case the unrebutted evidence clearly indicates the claimant is only able to engage in part-time sedentary work." The JCC concluded, however, that Liggon had "met her burden under F.S. 440.15(1)(b) of showing that she is incapable of performing even light work on an uninterrupted basis." The JCC explained that although some of the factors set forth in Weiss supported the E/C's contention that Liggon was not PTD, those factors di...

...An inability to engage in any meaningful employment would support the conclusion that one is permanently totally disabled. However, an ability to work part-time contradicts the conclusion that one is totally disabled.... Moreover, the ability to engage in sedentary employment satisfies the statutory prohibition in section 440.15(1)(b) ......

...s. Accordingly, competent substantial evidence does not support the JCC's characterization of Dr. Szmurlo's opinion as "highly unlikely" that Liggon "will ever resume gainful employment." The JCC erred in finding that Liggon had met her burden under section 440.15(1)(b) of showing that she is incapable of performing even light work on an uninterrupted basis....

...ioning at the same level as the claimant. It is doubtful if the employer would hire an additional employee to do the job if the claimant in this case ceased her employment. An offer of sheltered employment does not meet the employer's burden under F.S. 440.15(1)(a) to demonstrate the claimant is capable of engaging in gainful employment....

...Parks, 518 So.2d 360, 363 (Fla. 1st DCA 1987) (rehabilitation benefits). If an employer creates a job for an employee merely as a litigation tactic in a workers' compensation case, such a job cannot be said to constitute "gainful employment" as that term is used in section 440.15(1)(b), Florida Statutes....

...We have for review three decisions certifying the following question to be of great public importance: WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)1, FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? Acker v....

...enefits, pension benefits and supplemental benefits, which had accrued as of that date, then subtracting her previous AWW. Each year, pursuant to the supplemental benefits statute, Ms. Acker was attributed a five percent cost-of-living increase. See § 440.15(1)(e)1, Fla....

...date of injury. The weekly compensation payable and additional benefits payable pursuant to this paragraph, when combined, shall not exceed the maximum weekly compensation rate in effect at the time of payment as determined pursuant to s. 440.12(2). § 440.15(1)(e)(1), Fla....

...Once a lump-sum payment is authorized and received pursuant to section 440.20, a claimant has the option to invest the funds and offset the effects of inflation so that the purpose of supplemental benefits is satisfied. Id. at 79 (emphasis added). Clearly, the stated purpose for the enactment of section 440.15(1)(e)1, as a hedge against inflation, would be frustrated under the City's interpretation of section 440.20(15)....

...1st DCA 1998), and certified the same question presented therein. See Rowe v. City of Clearwater, 755 So.2d 137 (Fla. 1st DCA 1998). For the reasons expressed above, we approve the First District's decision in Rowe. Nothing in this opinion should be read to change the workers' compensation offset under section 440.15(9), Florida Statutes (1985)....

prompt delivery of benefits to the injured worker. § 440.015, Fla. Stat. (2001). Section 440.09(1), Florida

create "an efficient and self-executing system." § 440.015, Fla. Stat. (2001). It would ignore as well the

...Additionally, the E/C's counsel expressed his belief that the fourth motion to dismiss was scheduled to be heard at that hearing, and he asked the JCC to dismiss the claim on the following grounds: 1) Claimant's benefits ceased during any period of incarceration, pursuant to section 440.15(8), Florida Statutes....

...In re Estate of Brandt, 613 So.2d 1365 (Fla. 1st DCA 1993). On appeal, Claimant contends that the order must be reversed because the JCC dismissed the claim without explanation, possibly for Claimant's failure to appear for depositions or due to the provisions in section 440.15(8), Florida Statutes....

...ault); Wallraff v. T.G.I. Friday's, Inc., 490 So.2d 50 (Fla. 1986); Besco Equipment Co., Inc. v. Golden Loaf Bakery, Inc., 458 So.2d 330 (Fla. 5th DCA 1984). *777 Second, it is suggested that an alternative basis for the JCC's decision may have been section 440.15(8), Florida Statutes, which provides that if "an employee becomes an inmate of a public institution, then no compensation shall be payable unless he has dependent upon him for support a person or persons defined as dependents elsewhere...

...1036, 98 L.Ed.2d 1000 (1988). The E/C have not addressed Claimant's specific distinction between benefits sought for incarcerative vs. non-incarcerative periods. Furthermore, the only motion to dismiss that appears in the record does not include a defense expressly relying on section 440.15(8), Florida Statutes....

...suit for failure to comply with court order was reversible error, where alleged violation was raised merely ore tenus rather than as a ground stated in the motion to dismiss). Claimant should be given a reasonable opportunity to argue whether or not section 440.15(8), Florida Statutes, affects his claim....

...attributable to the accident shall be compensable." Section 440.02(19), Florida Statutes 1951, F.S.A. The employer contends that the employee is not entitled to recover under this statute for the reason that hernia claims are compensable only under section 440.15(6), Florida Statutes 1951, F.S.A.; that under this section a claim for hernia from injury is allowable only upon definite proof "that the hernia did not exist prior to the accident for which compensation is claimed;" and that inasmuch...

...Liberty Mutual Insurance Co., supra. Certainly, in a case where there has been no concealment of a preexisting hernia, it cannot be said that a claim based upon an aggravation of the condition could come within the evident intendment of the hernia statute, section 440.15(6), supra, insofar as the statute attempts to prevent fraudulent claims for disability attributable in fact to a preexisting herniated condition. It should be noted that section 440.15(6), supra, does not, in terms, preclude a person who suffers from a herniated condition from recovering compensation when that condition is aggravated by a subsequent accident....

...As we understand the record, the deputy allowed the claimant to recover as for an aggravation of a preexisting condition, pursuant to the provisions of section 440.02(19), Florida Statutes 1951, F.S.A., but based the amount of recovery upon the provisions of section 440.15(6), Florida Statutes 1951, F.S.A., which deals specifically with hernia claims resulting initially from injury by accident....

...which he worked before finally leaving Superior Pontiac. During that time, he was actually working at his old job and was making a slightly higher average weekly wage than before his injury. Accordingly, there was no actual wage loss as required by Section 440.15(4), Florida Statutes (1983)....

...Her employer, the State of Florida, Department of Public Health, Division of Risk Management, subsequently determined that Wilcox was also receiving federal social security benefits, and reduced the amount of her workers' compensation award pursuant to the offset provision in section 440.15(9), Florida Statutes (1985). Wilcox contends that the setoff provision in section 440.15(9) cannot be taken by her employer on its own accord, but rather must be authorized by the deputy commissioner....

...Wilcox, 504 So.2d at 444 (Fla. 1987). The state, as the employer, argues that the offset provision is self-executing and can be taken unilaterally. Thus, the issue presented is whether Wilcox's employer (the state) may unilaterally take the setoff authorized by section 440.15(9). We hold that it may. Section 440.15(9)(a), Florida Statutes (1985), requires that weekly workers' compensation benefits be reduced by the amount that they and social security benefits, in the aggregate, exceed eighty percent of the injured worker's average weekly wage....

...[2] Congress feared that the duplication of benefits would reduce a worker's incentive to return to work impeding rehabilitative efforts. [3] Several states, including Florida, enacted similar statutes requiring state employers to take the setoffs first, thereby saving money. Although section 440.15(9) does not expressly address whether an employer may take the setoff unilaterally, section 424a clearly allows the Social Security Administration to do so....

...[5] When the Social Security Administration has this information, the amount of the setoff can be quickly and easily determined by using a simple mathematical calculation. The federal statute recognizes this and thus allows the setoff to be taken administratively. We find the federal scheme persuasive. [6] Similarly, section 440.15(9)(c) imposes no obligation on the employee to inform his employer that he has begun receiving social security disability benefits, nor does it require the employee to calculate the requisite eighty percent limit and remit the excess....

...No deduction can be taken until the employer receives the worker's social security disability information from the Social Security Administration. Then, the setoff only can be taken prospectively. Department of Transportation v. Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980). Thus, section 440.15(9) requires a Florida employer to obtain the same reliable information that the federal statute demands....

...Since both the Florida employer and the Social Security Administration rely upon the same information in determining the applicability of the setoff, we see no reason why the state setoff should not also be self-executing. Therefore, we hold that the setoff provision in section 440.15(9) may be taken administratively by an employer/carrier....

...employer. The employer has little incentive to miscalculate the amount of the setoff because review by the deputy commissioner is always available to the employee. The First District Court of Appeal has consistently held that the offset provision in section 440.15(9) is self-executing....

...1st DCA 1982); Florida Power & Light Co. v. Adkins, 377 So.2d 57 (Fla. 1st DCA 1979); Borden, Inc. v. Butler, 377 So.2d 795 (Fla. 1st DCA 1979); Sherrod Dry Wall v. Reeves, 378 So.2d 301 (Fla. 1st DCA 1979). [7] Accordingly, we hold that the setoff provision in section 440.15(9) is self-executing in nature and therefore, can be taken unilaterally by the employer. We quash the decision of the Third District Court of Appeal and remand the case for further proceedings consistent with this opinion. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] Section 440.15(9)(a), Florida Statutes (1985), states: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...Such evidence, without more, is simply insufficient to support the deputy's findings. *990 Claimant's counsel in effect concedes the inadequacy of the work search, but argues that we should remand the case for purposes of reconsideration and application by the deputy of the "deemed earnings" provision of Section 440.15(3)(b)2., Florida Statutes (1979)....

...If, as here, the claimant fails to satisfy his initial burden of presenting a prima facie showing, the deemed earnings provision is inapplicable. The deputy's order awarding wage-loss benefits, penalties and costs is therefore REVERSED. THOMPSON and WIGGINTON, JJ., concur. NOTES [1] Section 440.15(3)(b)2....

...n that claimant sustained a permanent, physical impairment contributing to wage-loss. The record supports the DC's denial of wage-loss benefits after December 15, 1986 based on the finding that claimant voluntarily limited his income. However, under section 440.15(3)(b)1, Fla....

...The deputy commissioner further found that by failing to seek more suitable gainful employment, claimant voluntarily limited his income, and denied the December 1986 claim for wage loss benefits on that basis. Generally, a work search is a prerequisite to recovery of wage loss benefits pursuant to section 440.15(3)(b), Florida Statutes, however, an employee "is excused from a job search if the employer fails to inform the employee of his rights and responsibilities under the Act." Coq v....

...where a claimant does not have one of the permanent impairments listed in section 440.02(34), Florida Statutes (Supp.1994). Further, the legislature has required a claimant receiving PTD benefits to apply for social security disability benefits. See § 440.15(1)(f)2.b., Fla....

...Conner, 167 So.2d 569, 573 (Fla.1964). Indeed, the attorney-fee statute challenged in the case at bar appears to be rationally related to further the goal of reducing the cost of workers' compensation premiums, which was one of the goals motivating the enactment of section 440.15(3)(b), Florida Statutes (1979), making employees ineligible for wage-loss benefits if they were eligible for Social Security retirement benefits....

...Therefore the award of TTD benefits from February 8, 1980 to March 26, 1980 is reversed. Although he reached MMI on July 23, 1980, and was told that he could return to work without limitations as of that date, the claimant sought wage loss benefits based on a complete loss of earnings from July 23, 1980 to October 1, 1980. Section 440.15(3)(b)2, Fla....

...Nix, 141 Ga. App. 342, 233 S.E.2d 468 (1977); Blackmon v. Pantex Manufacturing Corporation, 95 R.I. 389, 187 A.2d 541 (1963). And see particularly Fellows, Reed & Weber v. Lance, 406 So.2d 1286 (Fla. 1st DCA 1981). The majority's interpretation of Section 440.15(3)(b)2, forcing a claimant to prove that his work search was unsuccessful due to his disability, rather than because of unavailability of work could place a wellnigh impossible burden on an injured claimant....

reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (1999). In exchange for affording

...rkers' Compensation Statute contains no mechanism for reducing an award of partial disability benefits based on an employee's misconduct. As the judge explained, the 1994 revision eliminated the deemed earnings provision of the previous statute, see section 440.15(4)(b), Florida Statutes (1993), which had enabled the courts to attribute earning capacity to a worker who was underemployed or terminated for misconduct at work....

...mporary partial disability benefits. An injured employee can recover temporary partial disability benefits only if a disability caused by a work-related injury results in a reduction in the employee's earning capacity below the level set by statute. Section 440.15(4)(a), Florida Statutes (Supp....

...cal standpoint, to require the payment of temporary partial disability benefits. However, the reduction in the claimant's income below the minimum statutory level was caused by her termination for misconduct, not her disability. The 1994 revision to section 440.15(4), Florida Statutes removed the deemed earnings provision which had previously enabled the courts to attribute earnings to an employee terminated for misconduct. However, the 1994 revision did not change the fact that temporary partial disability benefits are "compensation for disability. " Section 440.15, Florida Statutes (Supp.1994)(emphasis supplied)....

...ntly, an employee must still prove a causal connection between a work-related injury and a resulting wage loss to recover temporary partial disability benefits. See e.g. Betancourt v. Sears Roebuck & Co., 693 So.2d 680 (Fla. 1st DCA 1997). Moreover, section 440.15(4), Florida Statutes, (Supp.1994) provides that temporary partial disability must be computed as a percentage of the difference between the employee's average weekly wage and the "salary, wages, and other remuneration the employee is able to earn " after the disability....

...om employers, we can *971 find no authority under Florida law to support the distinction found by the d.c. ". The Court stated that the issue presented was one for the Legislature. 6. Subsequent to Garrick, the Legislature did enact language in F.S. § 440.15(4) relating to termination under these circumstances....

...became effective. Although the injury left Carr physically impaired to the extent of 34 percent of the thumb and eight percent of the body according to a physician's estimate, the injury did not qualify Carr for "permanent impairment" benefits under Section 440.15(3)(a)1, which provides for a one-time payment up to $7,500 only to claimants suffering one of three types of permanent injuries: amputations, 80 percent or more vision loss, or serious head or facial disfigurement....

...ll that were due. Before 1979, Chapter 440 provided for recovery of permanent partial disability benefits based on a schedule for enumerated injuries and on the estimated degree of physical impairment or loss of wage-earning capacity in other cases. Section 440.15(3), Fla. Stat. (1977). In an effort to control high costs, inequitable awards, and delays in payment of claims, [4] the legislature in 1979 substituted "permanent impairment" benefits under Section 440.15(3)(a) and "wage-loss" benefits under Section 440.15(3)(b) for the disability benefits previously awarded for similar permanent injuries....

...otection clause by denying him benefits for his permanently impaired thumb while granting benefits to those whose permanent impairment is by amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement, Section 440.15(3)(a)1, our task is to determine whether the legislative classification was made on some reasonable basis, bearing a substantial relationship to a legitimate legislative purpose....

...But given the severity of these types of injuries, and given the very special kinds of problems associated with each, the legislature determined that some special recognition should be made apart from the *568 wage-loss benefits available to everyone. The actual monetary award in the new section 440.15(3)(a) is not very large, but the special recognition of those who are truly injured is there....

...In Larson's view, [7] the addition of "partial loss of use" of body members to scheduled permanent injuries was responsible for much of the complexity and litigiousness that attended the system in recent years, which the Florida legislature sought in 1979 to obviate. For similar reasons we conclude that Section 440.15(3)(a)1 does not violate due process....

...1955); 5 C.J.S. Appeal and Error § 1324(3) at pp. 341-42 (1958). AFFIRMED. MILLS, J., concurs. WENTWORTH, J., concurs specially with opinion. WENTWORTH, Judge, concurring specially. Appellant's argument before the deputy and in this court challenges only § 440.15(3)(a)1 [1] and § 440.11, [2] Florida Statutes....

...Declaratory relief of that kind is not, of course, provided either by Chapter 440 or by original jurisdiction of this court in the case before us. Appellant's contention is that the Florida Constitution's access clause [5] compels nullification of § 440.11, Florida Statutes, because § 440.15(3)(a)(1) excludes his impairment from compensation while including loss of a thumb in whole or in part by amputation....

...money to help him through school when he was struck in the eye by a tire iron thrown by a fellow employee. As a result, he has suffered at least an 80% loss of vision in his eye, rendering it, for all practical purposes, useless. He now argues that Section 440.15(3)(a)1, Florida Statutes (1980), which limits his compensation award to $1,200 for the loss of the eye, [1] violates the equal access provision of Article I, Section 21, of the Florida Constitution. We affirm. We observe that, prior to the 1979 amendments to the Workers' Compensation Act, Mahoney's monetary award would have been significantly greater. §§ 440.15(3)(e) and (p), Fla....

...The mere fact that an employee's recovery has been limited by the imposition of a dollar cap is not, in and of itself, a constitutional bar. Cf. Abdin v. Fischer, 374 So.2d 1379 (Fla. 1979) (limiting liability of owners of public recreation areas). Further, while Section 440.15(3)(a)1 has significantly diminished Mahoney's recovery, it has not totally eliminated the *756 previously recognized cause of action and, as such, does not offend Article I, Section 21, of the Florida Constitution. See Jetton v. Jacksonville Electrical Authority, 399 So.2d 396 (Fla. 1st DCA 1981). AFFIRMED. ROBERT P. SMITH, Jr., C.J., concurs. BOOTH, J., dissents with opinion. BOOTH, Judge, dissenting: I would hold Section 440.15(3)(a)1, Florida Statutes (1980), unconstitutional as applied in this case and claimant entitled to seek his remedy in an action at law. [1] The maximum compensation provided under Section 440.15(3)(a)1 to this 18-year-old high school student for the loss of his eye is $1,200....

...cal peppercorn would also be sustainable. The remedy afforded is tantamount to the elimination of remedy in this case and is unconstitutional. The Legislature, in recognition of that fact, has substantially upgraded benefits in the 1982 amendment of Section 440.15(3)(a)1, [6] and compensation for loss of an eye has been restored to approximately what was available under the old act....

..., and would have difficulty doing a great number of jobs. Further, as he gets older, he will tend to develop a cross eye which will drift in an outward direction, an asymmetrical pupil and light sensitivity in the injured eye. [3] Under the old act [§ 440.15(3)(e) and (p), Fla....

...(1978)], claimant would have been entitled to approximately $10,000 for the loss of his eye. The award could have reached as much as $25,000 had claimant been working full time making approximately $200 per week at a manual labor job. The 1979 amendment to § 440.15(3)(a)1 reduces the allowable compensation to claimant for loss of use of the eye to $1,200....

...Under both the old and new acts, medical benefits and temporary total disability benefits are payable. [4] Chapter 79-312, Laws of Florida, effective August 1, 1979. [5] Cf., Acton v. Ft. Lauderdale Hospital, 1099 So.2d 418 (Fla. 1st DCA), upholding validity, vel non, of § 440.15(3)(a) and (b), Fla....

...*759 Edward Hurt, of Hurt & Parrish, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant. John A. Leklem, of Miller & Cooper, P.A., Orlando, for appellee. ZEHMER, Judge. Claimant, John Spitzer, appeals from an order of the deputy commissioner denying catastrophic loss benefits pursuant to § 440.15(2)(b), Florida Statutes (1979), and denying attorney's fees....

...A hearing was held on March 9, 1982, and by order entered July 15, 1982, the deputy denied the claim. There is competent and substantial evidence in the record to support the deputy's finding that the claimant did not suffer a catastrophic loss under § 440.15(2)(b), Florida Statutes (1979), [1] as construed in E.B....

...unds of the employer's bad faith. Accordingly, that portion of the order rejecting the stipulation to three months catastrophic loss benefits is REVERSED. In all other respects, the order is AFFIRMED. BOOTH and LARRY G. SMITH, JJ., concur. NOTES [1] Section 440.15(2)(b), Florida Statutes (1979), provides in pertinent part: Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg, hand, or foot, or...

...s. Since it is not clear to us that the misinterpretation did not play some part in the ultimate outcome, we remand this issue for reconsideration. At the hearing on the claim, the employer sought an offset of social security benefits as provided by § 440.15(10), Florida Statutes (1979)....

...Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980), so it logically follows that the employer has the burden of proving that it is entitled to an offset. In this case, the employer did not offer any evidence that the benefits received by the claimant were of a type provided for in § 440.15(10)....

...As the E/C points out, however, the deputy's denial of any wage earning capacity loss was affirmed in our order; therefore, the remand is limited to a redetermination of claimant's anatomical disability rating. The E/C has also requested clarification as to whether our denial of an offset for Social Security benefits under § 440.15(10) precludes the E/C from introducing evidence to show the type of benefits claimant is receiving....

...t to an offset as of the hearing date. We note, however, that the E/C cannot receive reimbursement for past payments of Social Security benefits because of its failure to inform itself whether or not those benefits were capable of being offset under § 440.15(10)(a). Under § 440.15(10)(c), the employee is required to authorize the Social Security Administration to release disability information to the division, the employer, or the carrier upon demand....

...As stated in Department of Transportation v. Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980) (cited in our opinion), it is the employer's or carrier's responsibility to inform itself of Social Security payments and, consistent with other sections of the Worker's Compensation Act, § 440.15(10) requires the employer to take the initiative in determining compensation benefits properly payable....

...Tucker, to have sustained a 5% permanent impairment as a result of her industrial accident, which occurred on April 17, 1980. Appellants claim that there is no evidence to suggest that her impairment rating is based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment, as required by Section 440.15(3), Florida Statutes (1979)....

...Accordingly, appellee's cross-appeal is AFFIRMED, and appellants' direct appeal is DISMISSED for lack of jurisdiction. Our dismissal is without prejudice to review of the order in the event of appeal from a final order awarding permanent impairment or wage loss benefits pursuant to Section 440.15(3), Florida Statutes (1979)....

...the left extremity. Winkles filed a timely application for review with the Industrial Relations Commission. The Commission reversed, holding that it was improper to treat combinations of injuries as constituting injuries to the body as a whole under Section 440.15(3)(u), Florida Statutes....

...Since the Florida Workmen's Compensation Act makes no provision for combinations of injuries, the employer/carrier maintains that a Judge of Industrial Claims who is faced with a situation such as the one at bar must find compensation for permanent partial disability under Section 440.15(3)(u), Florida Statutes. Section 440.15(3)(u) follows an enumeration by the Legislature of scheduled injuries to single body members or bodily functions [Section 440.15(3)(a) through (t), Florida Statutes] and refers to "all other cases in this class of disability." Petitioners assert that since there are multiple scheduled injuries and an injury to the body as a whole, Section 440.15(3), Florida Statutes, requires the Judge of Industrial Claims to proceed to Section 440.15(3)(u), Florida Statutes. Because multiple scheduled injuries are not defined in Section 440.15(3)(a) through (t), Florida Statutes, it is argued that the situation presented in the instant case must fall within the legislative category of "other cases". Petitioners find support for their position in the following language from this Court's opinion in Williamson, supra: "In connection with this point it should be noted that F.S. § 440.15(3)(d), F.S.A., refers to `foot lost', the singular and not the plural....

...The Judge of Industrial Claims found permanent partial disability to each foot on an anatomical basis but concluded that "the effect of the two scheduled injuries is to reduce the efficiency of the body as a whole." Accordingly, he rendered an award based on injury to the body as a whole under Section 440.15(3)(u), Florida Statutes....

...This Court stated the issue as follows: "The sole question for our determination is whether independent, simultaneous injuries to two body members, which would be considered as scheduled injuries if they occurred separately, may be treated under Florida Statute § 440.15(3)(u), F.S.A., as an injury to the body as a whole?" (Emphasis supplied) The Court responded to the question in the affirmative and in arriving at its decision stated: "... Secondly, we do not feel that the Legislature meant `torso' when it said `body as a whole' but instead meant to recognize that some injuries simply may not fit in the schedule set forth in F.S. § 440.15, F.S.A....

...ility than ordinarily accompanies that injury because it has coupled with an injury to another member, the JIC should recognize that fact and make its award accordingly. Williamson does not stand for the proposition that the award must be made under Section 440.15(3)(u), Florida Statutes, when it would result in a diminished disability award....

...ay as to "accomplish the benficient purposes and objectives implicit in legislation of this type," we are not persuaded that the Industrial Relations Commission departed from the essential requirements of law in its interpretation and application of Section 440.15(3), Florida Statutes....

...The Judge of Industrial Claims expressly found 100 percent loss of vision of the right eye, but then determined that such loss was equivalent only to 24 percent permanent partial disability to the body as a whole. A plain reading and application of Sections 440.15(3)(r) and (e), Florida Statutes, provide for 175 weeks of compensation in the event of total loss of use of an eye. As a result of the conversion into a body as a whole rating the benefits to Winkles were reduced to 84 weeks. Such a procedure is clearly in contravention of Sections 440.15(3)(r) and (e), Florida Statutes....

...The substantive rights of the parties are fixed on the date of the claimant's accident and injury. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). The claimant was injured on August 11, 1994, and therefore the JCC should have applied the criteria contained in section 440.15(1), Florida Statutes (Supp.1994)....

...The final order states that claimant was unable to perform or maintain gainful employment on a "continual and interrupted basis" and was incapable of performing even light work on an uninterrupted basis due to a physical limitation. Under the law as amended in 1994, these findings are insufficient to establish PTD. Section 440.15(1)(b), Florida Statutes (Supp.1994), provides that "[o]nly a catastrophic injury as defined in s....

...Although the deputy refused to award any wage-loss benefits that were claimed prior to December 4, 1980, he reserved jurisdiction for the purpose of awarding them after such date pending a report from a Dr. Moll as to claimant's condition. The deputy interpreted Section 440.15(3)(a)2, Florida Statutes (1979), [2] as requiring that a permanent impairment rating be in existence before December 4, 1980, as a predicate to the award of any wage-loss benefits. The deputy's reliance on Section 440.15(3)(a)2 is misplaced....

...Chavez, IRC Order 2-3062 (1976). To the contrary, the deputy's order merely requested a third medical opinion to aid him in making his final decision. As to Point III, we agree with the deputy's order that Dr. DiBartolo's rating was not in compliance with Section 440.15(3)(a)3....

and defenses by employers and employees alike." § 440.015, Fla. Stat. (1993). In return for accepting vicarious

...al x-ray studies of claimant's neck and back. For the foregoing reasons, the JCC's order is REVERSED, and the cause is REMANDED for proceedings consistent with this opinion. MINER, J., and PHILIP J. PADOVANO, Associate Judge, concur. NOTES [1] Under section 440.15(3)(b)4d(I), Florida Statutes (Supp....

...1990), for injuries occurring after June 30, 1990, the claimant has 26 weeks of eligibility for wage loss benefits for permanent impairment ratings up to and including 3 percent. This increases to 52 weeks of eligibility for permanent impairment ratings greater than 3 and up to and including 6 percent. Section 440.15(3)(b)4d(II)....

...The award covered the period from April 22, 1984, to September 30, 1984, during which Morehead was able to find only limited alternative work, despite his best efforts. On appeal, Dayron argues that a provision of the Florida Worker's Compensation Law [1] (the "Statute"), section 440.15(3)(a)(3), [2] dealing with "permanent impairment," requires evaluation of Morehead's claim under the American Medical Association's Guides to the Evaluation of Permanent Impairment (2d ed....

...Here, Morehead's condition is addressed in *932 the AMA Guides, but it is evaluated only in terms of medical impairment without regard to the wage loss which may result from disability. The statute on occupational diseases provides that workers' compensation shall be paid for disablement. § 440.151, Fla. Stat. (1985). Section 440.151(3) reads: (3) Except as hereinafter otherwise provided in this section, "disablement" means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work...

...Since there was substantial competent evidence which otherwise supports the finding of permanent impairment, we affirm the decision of the district court of appeal. It is so ordered. McDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] §§ 440.01 to 440.60, Fla. Stat. (1985). [2] Section 440.15(3)(a)3 says: In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings....

...We find that the permanent total disability benefits were reasonably predictable and became ascertained upon entry of the January 18, 1984 order. As to Issue II, the employer/carrier maintain that, in calculating claimant's attorney's fee, supplemental benefits provided in section 440.15(1)(e)1. should not be included in the computation of benefits obtained by claimant's counsel. They argue that the claimant employee was already entitled to the maximum weekly benefit under the Act at the time of the injury. We disagree. Section 440.15(1)(e)1 states: [T]he injured employee shall receive from the division additional weekly compensation benefits equal to 5 percent of the injured employee's compensation rate, as established pursuant to the law in effect on the date of h...

...A hearing was held November 11, 1980, on Johnson's claim for temporary total and/or temporary partial disability, catastrophic loss, and other workers' compensation benefits. The Deputy Commissioner subsequently entered an order determining that Johnson was entitled to catastrophic loss benefits pursuant to Section 440.15(2)(b), Florida Statutes, and Van Eyk v. R.N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979), between the date of the accident and his return to work on January 21, 1980. On appeal, the employer/carrier urges that Van Eyk is distinguishable and that Section 440.15(2)(b) is inapplicable to the type of injuries which occurred in this case. The catastrophic loss provision, Section 440.15(2)(b), Florida Statutes (1979), in effect on the date of the accident, provides for increased temporary total disability benefits where an employee sustains "the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg...

...reversed. The employer/carrier also contends that the Deputy erred in awarding claimant temporary partial wage loss benefits at a flat weekly rate of $40 "continuing until such time as [the claimant] is no longer temporarily and partially disabled." Section 440.15(4)(a), Florida Statutes (1979), provides that such benefits "shall be based on actual wage loss" as "compared on a weekly basis." The flat prospective award here, even though it approximated Johnson's actual wage loss, was erroneous....

...l evidence, as the uncontroverted testimony was that Johnson voluntarily left his job with Belk-Lindsey on September 19, 1980 to seek more desirable employment. On remand, therefore, the Deputy should apply the "deemed earning capacity" provision of Section 440.15(4)(b), Florida Statutes (1979), to Johnson's wage loss subsequent to September 19, 1980....

...ERVIN, J., concurs and dissents with written opinion. ERVIN, Justice, concurring and dissenting. I concur in all facets of the majority's opinion except that portion reversing the award of catastrophic loss benefits. The majority correctly observes that the applicable statute is Section 440.15(2)(b), Florida Statutes (1979), providing for increased temporary total disability benefits based upon 80% of the employee's wages at the time of the accident in those instances in which the employee sustains "[1] the loss of [a] ......

...NOTES [1] This conclusion is influenced and buttressed by the legislative history of the statute and the reviser's note to the 1981 amendment which recognized that the inclusion of the more general clause in the 1979 amendment was the result of a redundancy apparently caused by a typographical error. As amended in 1981, Section 440.15(2)(b), Florida Statutes, provides, in pertinent part, as follows: [A]n employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost...

...percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to s. 400.49, if provided. [2] Section 440.15(2)(c), Florida Statutes (1977), provided, in pertinent part, as follows: [A]n employee who has sustained a loss of an arm, leg, hand, or foot, or total loss of use of such member, because of organic damage to the nervous system, or has...

...The judge of compensation claims found that "the facts about this night watchman job ... can lead to no other conclusion than that the night watchman position was sheltered." Competent substantial evidence supports this finding. So-called sheltered employment is neither "conclusive proof of a substantial earning capacity," § 440.15(1)(b), Fla....

...On these facts, the deputy commissioner awarded wage-loss benefits, specifically finding that Parker acted reasonably in not returning to Citrus Central and that he did not voluntarily limit his income. We find it unnecessary to reach appellant's argument that the appellee voluntarily limited his income. Section 440.15(3)(b)2, Florida Statutes (1981), provides that before wage-loss benefits may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of compensable injury....

...The difference in the results produced by the contentions of the respective parties is clear in view of our decision in Ball v. Mann, Fla. 1954, 75 So.2d 758. By the cited decision this Court committed itself to the view that when an employee suffers an injury not scheduled under Section 440.15 (3), Florida Statutes, F.S.A., but rather suffers an unscheduled injury under Section 440.15(3)(u), Florida Statutes, F.S.A., he is entitled to have considered his loss of earning capacity when the unscheduled functional disability is evaluated along with such variables as his age, education, industrial history and ability to pursue the trade for which he is best qualified. *431 Theoretically, the compensation allowed for scheduled injuries comprehends all of these divergent elements and mathematizes them into a fixed statutory sum. Under the "other cases" section of the statute, (Section 440.15(3)(u), supra) there is no legislative announcement of a fixed amount....

...etitioner employee had suffered an unscheduled injury which in turn justified his consideration of the loss of earning capacity under the rule of Ball v. Mann, supra. An injury to the shoulder joint is unscheduled. An injury to the arm is scheduled. Section 440.15(3), Florida Statutes, F.S.A....

...at denied permanent total disability (PTD) benefits claimed from April 24, 1990. We find it necessary to reverse the order, because the record lacks substantial evidence to support the denial of PTD benefits, and Claimant met the burden set forth in section 440.15(1)(b), Florida Statutes (1989), "to establish that [s]he is not able uninterruptedly to do even light work due to physical limitation." On remand, the JCC shall determine whether there is an issue of "double benefits" and an entitlemen...

reemployment at a reasonable cost to the employer. § 440.015, Fla. Stat. Nothing is quick and efficient about

provision of the statute virtually meaningless. See § 440.015, Fla. Stat. (2003) ("The department, agency, the

...We find, however, that the deputy erred in not making the same computation for the two months when he found no job search, because the statute applies equally to inadequate and absent search and denies compensation only to the extent that income "would have been earned" by the impaired claimant absent voluntary limitation. § 440.15(3)(b)2, Florida Statutes....

...titute voluntary limitation of income so as to trigger the application of the statutory formula: ... a specific finding ... that the claimant had voluntarily limited her income by not conducting an adequate work search ... triggers the provisions of Section 440.15(3)(b)2, Florida Statutes 1979: "......

...NOTES [1] Claimant's weekly compensation rate was $204.80 based on an average weekly wage of $307.20. The award was limited to $147.55 monthly by apparent application of the statutory formula prescribed for computing compensation payable when the deputy finds income has been voluntarily limited. § 440.15(3)(b)2, Florida Statutes....

...to offset the amount of social security retirement benefits claimant received. We find no authority for an offset in regard to social security retirement benefits. Nothing in chapter 440, Florida Statutes, provides any support for such a reduction. Section 440.15(3)(b)7, Florida Statutes (1991), allows an offset against wage loss benefits paid an injured worker who also receives social security retirement benefits, but that statute is clearly inapplicable to this case, because claimant is being paid PTD and PTD supplemental benefits—not wage loss. Our court, moreover, has narrowly construed the statute and refused to expand the deduction provided in section 440.15(3)(b)7 to any other class of benefits....

...See, e.g., Dental Arts Lab, Inc. v. Constantino, 531 So.2d 999 (Fla. 1st DCA 1988) (social security retirement offset is applicable only to wage loss, not temporary partial disability benefits). Consequently, we find no authority for extending the offset provided in section 440.15(3)(b)7 to PTD or PTD supplemental benefits. Section 440.15(9)(a), Florida Statutes (1991), likewise provides no authority for this offset....

...1st DCA 1981) (statutory set-off does not include an abatement for supplemental security income benefits received by claimants). Because claimant is not receiving social security disability benefits, and, in fact, is no longer eligible for such benefits as he is over the age of 65, section 440.15(9)(a) provides no authority for the offset. Other offsets allowed under chapter 440 based on receipt of unemployment compensation and pension disability benefits payable by a public employer, see sections 440.15(10) and (12), Florida Statutes (1991), are likewise inapposite under the circumstances of this case....

...ed on receipt of social security retirement benefits, because they do not constitute a "collateral source," as contemplated in Grice. The legislature clearly knew how to fashion a social security retirement offset, as illustrated by its enactment of section 440.15(3)(b)7....

...s PTD, PTD supplemental and social security retirement benefits. Claimant is therefore entitled to receive the full amount of his social security retirement benefits, and the only ceiling on his PTD and PTD supplemental benefits is that set forth in section 440.15(1)(e)1, Florida Statutes (1991), which is the maximum weekly compensation rate in effect at the time of payment....

...In fact, a number of state legislatures have enacted laws exempting the workers' contribution from such offsets. See 4 Arthur Larson, The Law of Workmen's Compensation, § 97.41(b) (1994). Frequently the offset cannot exceed one-half of the employee's social security benefits. For example, section 440.15(3)(b)4, Florida Statutes (1979), the predecessor to section 440.(15)(3)(b)7, provided that the wage loss benefits of a worker who has reached age 62 shall be reduced by the amount of social security benefits he or she is receiving, but not more than 50 percent....

...The judge entered a final order on March 13, 1997, denying Brannon's claim for permanent impairment benefits and she has appealed to this court. We begin our analysis with an examination of the applicable provisions of the Workers' Compensation Law. Section 440.15(1)(b) Florida Statutes, (Supp.1994) limits the payment of permanent total disability benefits to employees who have suffered catastrophic injuries. These benefits are payable at the rate of 66 2/3 percent of the employee's average weekly wage regardless of the nature of the injury. In contrast, section 440.15(3), Florida Statutes, (Supp.1994), creates an entitlement to impairment benefits for an injured worker who has suffered a permanent impairment....

...The phrase "permanent impairment" is defined in section 440.02(19), Florida Statutes, (Supp.1994) as: ... any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury. As explained in section 440.15(3)(a)2, impairment benefits are payable based on a uniform permanent impairment rating schedule. It is apparent from this statutory scheme that section 440.15(3) creates a separate class of benefits for employees who are permanently impaired but not permanently and totally disabled. The classification of permanent impairment in section 440.15(3) assumes the employee has some earning capacity despite the impairment, while the classification of permanent total disability in section 440.15(1) assumes the injury has caused a total loss of the employee's earning capacity. The 1994 revision of the workers' compensation statute does not expressly state that permanent impairment benefits and permanent total disability benefits are mutually exclusive, but that is plainly implied. Section 440.15(1)(d), Florida Statutes (Supp.1994) states: If an employee who is being paid compensation for permanent total disability becomes rehabilitated to the extent that he establishes an earning capacity, he shall be paid, instead of the comp...

...*99 Brannon argues that she is entitled to recover benefits for a permanent impairment in addition to those she is receiving for her permanent total disability because the recovery of both is no longer directly prohibited by law. The previous version of the law stated that these benefits were mutually exclusive. Section 440.15(3)(a) Florida Statutes(1993), provided: (a) Impairment Benefits (1) In case of permanent impairment due to amputation, loss of 80 percent or more of vision of either eye, after correction, or serious facial or head disfigurement result...

...On the contrary, we find nothing in the 1994 version of the Workers' Compensation statute that suggests an intent to allow a totally and permanently disabled worker to receive additional compensation in the form of impairment benefits. For these reasons, we hold that section 440.15(3) Florida Statutes (Supp.1994) does not authorize recovery of permanent impairment benefits and permanent total disability benefits simultaneously....

...eal. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). Finally, the employer and carrier contend that the deputy erred in not granting them a social security offset, or at least allowing them to administratively take the statutory offset. Section 440.15(10), Florida Statutes (1981)....

...l disability (TTD) benefits until the date of maximum medical improvement (MMI) and excusing the failure of the hospital and physician to file bills and medical reports. The claimant has also filed a cross-appeal challenging the constitutionality of § 440.15(3)(b)3.d, Florida Statutes (1980 Supp.)....

...responsibility to file a notice to controvert within specific time limitations." Finally, the deputy commissioner found that claimant was in excess of age 65 on the date of the accident and was therefore not entitled to wage loss benefits because of § 440.15(3)(b)3.d. But the deputy commissioner also held that he would have awarded those benefits to her if the statute had not precluded entitlement because of age. We do not reach the merits of claimant's cross-appeal challenging the constitutionality of § 440.15(3)(b)3.d because claimant has not shown that she is adversely affected by the statute by proof that she meets all other requirements for that class of benefits....

...Mason, 167 So.2d 555 (Fla. 1964). In this case, the deputy commissioner stated that he would have awarded wage loss benefits but for the challenged statute. However, we find no proof of the necessary statutory conditions for award of such benefits to appellant. Under § 440.15(3)(b)1 and 2, Florida Statutes (1979), a claimant must suffer a specified decrease in earnings as a result of compensable injury before any wage loss benefits are due, because eligibility *1028 for such benefits is limited to "95 percent of...

...In addition claimant's testimony indicates that her current employment activities are comparable in every way to the work she was doing prior to her accident. Since claimant relies only on invalidity of the statutory age bar to prove her claim for wage loss after MMI under § 440.15(3)(b)3.d, we conclude she did not show that but for the bar she had a right to benefits, and we decline to determine the constitutionality issue for lack of standing on her part to present the point....

...An order awarding wage-loss benefits to be paid "to the date of hearing and continuing" is improper. The disputed language in the case at hand is sufficiently finite as it necessarily allows for flexibility and encompasses the possibility of a determination of a wage-loss on a month-by-month basis. See § 440.15(3)(b)1, Fla....

...[4] We must determine the legal effect of the E/C's failure to apprise the claimant of his work search responsibilities. The initial burden is on the claimant to demonstrate an entitlement to benefits upon a change in employment status due to a compensable injury. § 440.15(3)(b)2, Fla....

...Once the claimant has satisfied the initial burden, the burden of proof shifts to the E/C to demonstrate a voluntary limitation of income or to demonstrate that the injury is not creating an impairment or work-related physical restriction which would limit the claimant's ability to perform appropriate employment. § 440.15(3)(b), Fla....

...1st DCA 1982) (rehearing en banc), review denied, 431 So.2d 989 (Fla. 1983), this court, in deciding that the nonavailability of jobs due to economic conditions does not preclude the recovery of wage-loss benefits, construed the effect of the following provision in Section 440.15(3)(b)2, Florida Statutes (1979): "Whenever a wage-loss benefit as set forth in subparagraph 1....

...gainst the laissez-faire attitude condemned by this Court in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA 1981). Id. at 325-26. As a consequence of these reciprocal obligations — the duty imposed upon an employee by section 440.15(3)(b)(2) to establish that any wage loss claimed was the result of the compensable injury, and the obligation placed upon the employer by section 440.185(2)(e) and (4) to inform the injured worker of his or her responsibility for satis...

...[4] The JCC also denied the claims for rehabilitation and remedial treatment since the JCC found that the claimant was no longer suffering the effects of the industrial accident. [5] I recognize that the employer's burden has been lessened by the 1990 amendments to section 440.15(3)(b)(2), providing for the denial of benefits to an employee who failed to conduct a work search for a minimum of five jobs during a biweekly period, if he or she received knowledge of same from a source other than the employer, see C...

...Even if it could be said that claimant was communicated notice of such duty from a source other than the employer, the period of time for which he seeks compensation benefits — from the date of termination (May 1989) through the date of the hearing (December 11, 1989) — is not controlled by the amendment to section 440.15(3)(b)(2), which became effective as of July 1, 1990, because the amended statute is not applicable to wage-loss claims which accrued before its effective date....

designed to be efficient and self-executing. See § 440.015, Fla. Stat. (1997). It cannot depend on an adversary's

delivery of benefits to the injured worker." § 440.015, Fla. Stat. (1995). AFFIRMED. BENTON and PADOVANO

and employers and their insurance carriers. See § 440.015, Fla. Stat. (Supp. 1994).[2] Even though the conference

...When asked whether claimant has a permanent disability within the AMA Guides, Dr. Gilbert explained that since claimant has not received treatment, the clinical situation did not conform with the statutory requirement that, where applicable, an impairment rating should be determined in accordance with the AMA Guides. § 440.15(3)(a)3, Fla....

...Ben's Service Station, Inc., 417 So.2d at 267. [2] Examples of similar, if not directly related, problems in determining when wages are "earned" under arbitrary statutory provisions setting specific time frames for calculating wage loss benefits under section 440.15(3)(b)(2) are encountered when a claimant is compensated by commissions....

...ccident, or whether the claimant had previously been compensated for the prior injury. This last factor is particularly important since the record reveals that the claimant suffered several earlier work-related injuries with the same employer. Under § 440.15(5), Florida Statutes (1977), the employer should not be placed in the position of making double compensation payments....

...The claimant testified that she filed a claim for the 1975 accident with the same employer but her testimony regarding the disposition of that claim is vague. On remand, the parties should be afforded the opportunity to present more adequate evidence to determine the application of § 440.15(5). If the deputy determines that merger or apportionment under § 440.15(5) is appropriate, he should make that clear....

...eputy's determination of the amount of claimant's wage-earning capacity is superfluous. This is because the deputy commissioner found that the claimant had conducted a good faith job search, and there is substantial competent evidence for that view. Section 440.15(3)(b)(2), Florida Statutes (1979), states that the salary, wages, or other remuneration that a claimant might have earned shall be treated as if they had actually been earned....

...We, therefore, amend paragraph two of the decretal portion of the deputy commissioner's order by striking the words "based upon the Claimant's ability to earn $125 per week," so that the claimant may receive the maximum wage-loss benefits subject only to the statutory formula. § 440.15(3)(b)(1), Fla. Stat. (1979). The order is affirmed as modified. ROBERT P. SMITH, Jr., C.J., and SHAW, J., concur. NOTES [1] While Pompano Roofing is a case dealing with the temporary partial disability wage-loss statutory provision in Section 440.15(4)(b), Florida Statutes, it will be observed that this provision is almost word-for-word the same as the statutory provision relevant to this case. Compare § 440.15(3)(b)(2), Fla....

...It should not be, but sometimes is, necessary to point out that the deputy, not a doctor, is the finder and adjudicator of fact, including medical facts, subject only to specific statutory requirements for the evidentiary predicate for certain determinations. Section 440.15(3)(a)3 provides that "the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings." Until another schedule is adopted, the American Medical Association Guides are to be used....

...To that end, the deputy and the parties should be cognizant of our very recent opinion in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), setting forth claimant's burden of proof to demonstrate a causal relationship between his injury and subsequent wage loss, in light of the 1983 amendment to section 440.15(3)(b)2, Florida Statutes....

...Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), awarded a fee when the carrier accepted as compensable a certain injury to claimant's body but unsuccessfully denied that the injury was of the catastrophic sort for which special benefits are payable, § 440.15(2)(b)....

...SMITH, Judge. Claimant appeals an order of the judge of compensation claims (JCC) denying, in part, his claim for temporary partial disability (TPD) and wage loss (WL) benefits on the grounds of res judicata and failure to report pursuant to the newly amended section 440.15(3)(b)2., Florida Statutes (Supp....

...r claimant sent a packet of WL requests for the period August 15, 1988 to December 2, 1990 to the E/C, which the claims adjuster received on January 25, 1991. The E/C controverted the wage loss requests. In the meantime, the 1990 Legislature amended section 440.15(3)(b)2....

...efits from 10/1/88 to 9/24/90 were barred on the grounds that they were ripe for determination and were not presented at prior hearings. The JCC found that claimant was not entitled to wage loss benefits after July 1, 1990 based on the provisions of section 440.15(3)(b)2., Florida Statutes (Supp....

...1990). The JCC awarded claimant TTD benefits from 11/20/90 through 3/28/91. In rejecting the claim for WL benefits after July 1, 1990, the JCC considered the fact that no wage loss letter was directed to the claimant by the E/C. However, she found that section 440.15(3)(b)2....

...Poss's October 13, 1988 deposition in which he opined that claimant was able to return to light duty as of June 1988 and reached MMI on October 7, 1988. However, we reverse the remainder of the JCC's order denying WL after the hearing on February 13, 1989. Wage loss up through July 1, 1990, the effective date of section 440.15(3)(b)2., is not precluded by the claimant's failure to pursue this wage loss at the remand hearing on September 24, 1990....

...Greene, 599 So.2d at 1370 (general rule that workers' compensation claim which is mature at the time of earlier proceeding will be barred by its omission therefrom may not be applied if its application would result in an injustice). Turning to the newly amended section 440.15(3)(b)2., this court ruled in Litvin v....

...2350, 124 L.Ed.2d 258 (1993) that the amendment at issue here is procedural, and thus could be applied without regard to the date of accident and injury. Nevertheless, to the extent that the JCC relied upon this statute to deny benefits subsequent to July 1, 1990, we conclude that she erred. Section 440.15(3)(b)2....

...Significantly, the letter advises an employee that failure to send the completed wage loss requests within 14 days may result in ineligibility for wage loss benefits during that period. Without addressing the question of whether the statement adequately advises an employee of the mandatory consequences of section 440.15(3)(b)2., and assuming for purposes of this opinion that it is sufficient warning to an employee of the consequences of failure to report, we comment parenthetically that the act previously contained (as it still does) a reporting requi...

...ntention that the E/C was prejudiced by a worker's untimely filing of WL forms, an untimely filing did not require denial of benefits. Stahl v. Mike Gordon's Seafood Restaurant, 408 So.2d 808 (Fla. 1st DCA 1982). However, as we construe the new law, section 440.15(3)(b)2....

...Without evidence that the claimant *86 knew of the job search requirement and wage loss reporting requirement there is no basis for the JCC's conclusion that claimant is not entitled to wage loss benefits due to his failure to report as required by section 440.15(3)(b)2....

...NOTES [1] The last applicable request for WL covers the period 1/30/89 to 2/12/89. [2] We have not overlooked the fact the claimant reportedly sent wage loss requests to the E/C for the period 6/20/88 through 8/14/88. This act — done nearly two years before passage of the amendments to section 440.15(3)(b)2....

...-earning capacity. Here, claim was made for permanent partial disability benefits based upon either anatomic impairment or loss of wage-earning capacity. The deputy found a 3% permanent partial disability of the body as a whole. The last sentence in Section 440.15(3)(u), Florida Statutes 1978, defines "disability" in that paragraph to mean " either physical impairment" or "diminution of wage-earning capacity, whichever is greater." (Emphasis added.) The record contains evidence of both....

...On that date, she injured her right knee when she sustained a hard fall while playing basketball with adolescent patients. That injury was accepted as compensable. Employer/Carrier paid temporary total disability (TTD) benefits until October 22, 1997, and thereafter paid impairment benefits pursuant to section 440.15(3)(a), Florida Statutes (1995), based on orthopedic surgeon Dr. Macey's 9% permanent partial impairment rating. TTD indemnity benefits were terminated upon the expiration of the 104-week time limit under section 440.15(2)(a), Florida Statutes (1995)....

...NIMMONS and ZEHMER, JJ., concur. ON MOTION FOR REHEARING DENIED Claimant's motion for rehearing/clarification expresses concern that the opinion in this case will preclude any wage loss award based on deemed earnings for the accrued periods in question. Section 440.15(3)(b)2, Florida Statutes....

...440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability. Only claimants with catastrophic injuries are eligible for permanent total benefits. In no other case may permanent total disability be awarded.” Fla. Stats. § 440.15(b)(1994)(emphasis added). Turning to § 440.02 (37)(f), applicable for purposes of this appeal, “Catastrophic injury” means “[a]ny other injury that would otherwise qualify under this chapter of a nature and severity that woul...

...Flagship appeals the final order and urges reversal, citing Hayward Trucking, Inc. v. Aetna Insurance Co., 445 So.2d 385 (Fla. 1st DCA 1984), and Structural Systems, Inc. v. Worthen, 463 So.2d 502 (Fla. *830 1st DCA 1985), for the proposition that the deputy is prohibited by section 440.15(5)(a), Florida Statutes (1983), from apportioning medical benefits between the two employers and their carriers....

...1st DCA 1981). Prior to 1979, section 440.02(18), defining "accident," provided in part that compensation for temporary disability and medical benefits was not subject to apportionment. [1] The 1979 amendments moved the language prohibiting apportionment to section 440.15(5)(a), Florida Statutes (1983)....

...ent between carriers. We do not consider that entire discussion to have been essential to the result reached. *831 Accordingly, we hold that the 1979 amendments transferring the statutory language prohibiting apportionment from section 440.02(18) to section 440.15(5) did not alter the prior substantive law with respect to the authority of a deputy commissioner to apportion medical benefits between carriers under section 440.42(3), and that the statutory provisions as construed in Rowe & Mitchell v....

...bly attributable to the accident shall be compensable with respect to permanent disability or death. Compensation for temporary disability and medical benefits provided by this chapter shall not be subject to apportionment under this subsection. [2] Section 440.15, Florida Statutes (1983), deals only with the right of "compensation for disability" by the employee. Medical benefits are provided for in section 440.13. Section 440.15(5)(a) reads: The fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor preclude benefits for death resulting therefrom....

...duled injury" benefits did not render those amendments violative of the equal protection or access to the courts guarantees of the state or federal constitutions); Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983) (the provision of section 440.15(3)(b)3.d., Florida Statutes (1979), which terminates the right to wage loss benefits when the injured employee reaches age sixty-five and becomes eligible for social security benefits, does not violate constitutional guarantees); Morrow v. Amcon Concrete, Inc. 433 So.2d 1230 (Fla. 1st DCA 1983) (the 440.15(3)(b)4, Florida Statutes (1979) reduction by up to 50 percent of wage loss benefits at age sixty-two when the employee is receiving social security benefits was held constitutional). See also Mahoney v. Sears, Roebuck & Company, 419 So.2d 754 (Fla. 1st DCA 1982); and Beauregard v. Commonwealth Electric, 440 So.2d 460 (Fla. 1st DCA 1983) (upholding section 440.15(3)(a)1 (1980) and (1981), which placed a dollar cap on eye injuries to the extent that, the claimants argued, the benefits provided were so paltry as to deny them redress for their injuries, as provided in article I, section 21, Florida Constitution)....

...Schmer or to authorize alternative treatment. Second, we reverse the failure of the dc to order an offset of unemployment compensation benefits received by the claimant against temporary partial disability benefits ordered payable by the e/c from December 1984 through June 1985. Section 440.15(10)(b) states that "unemployment compensation benefits shall be primary and wage-loss benefits or temporary partial benefits shall be supplemental only, the sum of the two benefits not to exceed the amount of wage-loss benefits which w...

...Claimant's average weekly wage had been determined as $73. Claimant is receiving social security benefits (for both herself and her minor daughter) in excess of this weekly amount. Employer/carrier discontinued compensation payments, contending that they were entitled to do so pursuant to the § 440.15(10)(a) offset provision....

...The deputy further held that employer/carrier's failure to establish the amount of offset which could otherwise be taken by the social security administration precludes the employer/carrier from making the statutory offset until such information is provided. Section 440.15(10)(a) provides that "this provision shall not operate to reduce an injured worker's benefits under this Chapter to a greater extent than they would have otherwise been reduced" by the federal social security administration....

...Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980). However, the offset should not be permitted in the absence of evidence that it is warranted. See Thomas v. Sunland Training Center, 408 So.2d 685 (Fla. 1st DCA 1982); also see Town Drug Inc. v. Maples, IRC Order 2-3389 (4/5/78). Section 440.15(10)(c) requires an employee, upon demand by the employer or carrier, to authorize the social security administration to release disability information; the statute further provides that compensation may be suspended if the claimant refuses to authorize the release of such *66 information. Thus employer/carrier is accordingly on equal footing with claimant in obtaining disability information from the social security administration. Since the § 440.15(10)(a) offset provision is a defense to the payment of compensation otherwise due, the burden of proving its appropriateness and applicability would appear to be one which employer/carrier must bear....

...ayment is the same. Recovery under Section 440.34(2)(b) requires a showing of present economic loss. The deputy commissioner found economic loss based in part on his finding that claimant would have been entitled to supplemental benefits pursuant to Section 440.15(1)(e), Florida Statutes (1979)....

...nt suffered no economic loss as required by Section 440.34(2)(b), Florida Statutes (1979), first, because it considers there was only a de minimus deprivation of the supplemental benefits to which a worker permanently totally disabled is entitled by section 440.15(1), and second, because it determines an employee's obligation to pay attorney's fees does not constitute economic loss as contemplated by section 440.34(2)(b). In my judgment the majority's reasoning is faulty on both counts. *475 Section 440.15(1)(e) clearly states that "the injured [permanently totally disabled] employee shall receive from the division additional weekly compensation benefits equal to 5% of the injured employee's weekly compensation rate as established pursua...

...by the number of calendar years since the date of injury, ... ." (e.s.) Nowhere does the statute provide that the supplemental benefits be delayed until the next succeeding calendar year following a claimant's achievement of MMI. The purpose behind section 440.15(1)'s provision allowing increased compensation to a worker permanently and totally disabled was stated as follows in Department of Labor and Employment Security, Division of Workers' Compensation v....

...claimant has sufficiently demonstrated economic loss due to the carrier's failure to pay supplemental benefits promptly once it is furnished reasonable notice of claimant's PTD. In saying the above, I am not unaware of the interpretation placed upon section 440.15(1)(e) by the Industrial Relations Commission in Martino v....

...converted the wage-loss benefits to PTD benefits. This was a substantial economic gain to the claimant because, without the intervention of an attorney, she would in all probability have been limited to a maximum of 350 weeks of wage-loss benefits. Section 440.15(3)(b)3b....

...ER Per Curiam. This cause comes before the Industrial Relations Commission on claimant's application for review of the order of the Judge of Industrial Claims dated November 14, 1978, denying the claim for additional supplemental benefits under Sec. 440.15(1)(e), Fla....

...(2) He reached maximum medical improvement on August 12, 1977. (3) A claim for supplemental benefits and attorney's fees was filed on April 24, 1978, and (4) Supplemental benefits were paid on April 24, 1978, retroactive to January 1, 1978. The judge ruled that the Fund properly interpreted Sec. 440.15(1)(e), Fla....

...The JCC found, however, that Claimant did not reach overall MMI in March 2009 and had not reached MMI for the low back injury. PTD before MMI For accidents occurring on or after January 1, 1994, temporary disability benefits are limited to a period of 104 weeks. Ch. 93-415, § 20, at 120, 128, Laws of Fla. (amending § 440.15(2), (4), Fla....

...from which she had clearly reached *1180 MMI. [1] Application of the above referred rule to a PTD case such as this would serve no logical purpose and would unfairly withhold from the claimant the supplemental benefits to which she is entitled under Section 440.15(1)(e), Florida Statutes....

the procedures to receive such benefits. See § 440.015, Fla. Stat. (1995) ("It is the intent of the Legislature

...e claimant would be "a waste of your money and our time." Although the claimant submitted job search lists for the months of February through August, 1986, the carrier deducted $463.48 per month from her wage loss benefits as "deemed earnings" under section 440.15(3)(b)2, Florida Statutes (1983)....

...is whether her continued unemployment is attributable to her compensable injury. She points out that the employer/carrier did not challenge the sufficiency of her work search, and asserts that this search satisfied her initial burden of proof under section 440.15(3)(b)2, citing Iverson v....

..." In Glynn v. McKenzie Tank Lines, 511 So.2d 696 (Fla. 1st DCA 1987), the deputy commissioner denied a claim for temporary partial disability and wage loss benefits at the actual wage loss rate rather than at a *1367 deemed rate pursuant to sections 440.15(4)(b) and 440.15(3)(b)2, Florida Statutes (1983), finding that the claimant had been capable of returning to minimum wage employment and had instead accepted work on a commission basis, earning less than minimum wage....

...HAWKES, C.J. In this workers' compensation appeal, we are asked to address the applicability *1149 of the common-law concept of sheltered employment to periods of temporary partial disability (TPD); and the forfeiture of benefits under the defense found in section 440.15(6), Florida Statutes (2007). Here, the Judge of Compensation Claims (JCC) rejected Claimant's argument that the concept of "sheltered employment" should apply and denied TPD benefits, along with penalties, interest, costs, and attorney's fees, pursuant to section 440.15(6), based on Claimant's unjustified refusal of suitable employment....

...During the second, Claimant had been terminated but still had not received physical therapy. And during the third, Claimant had completed physical therapy but remained unemployed, and under doctor's restrictions. The record does not support the JCC's application of the section 440.15(6) defense to this last period....

...At hearing, Claimant raised several arguments in avoidance of the E/C's defense, including: 1) the job was too difficult for her to perform and thus, her refusal was justified; 2) the job was too easy and was, thus, "sheltered employment" that did not meet the elements of the defense in section 440.15(6); and 3) she was terminated from her employment on August 17, 2008, and thus, she could not have refused employment during the period where there was no offer....

...uant to the Employer's return-to-work program and was not "sheltered employment." Based on these findings, *1150 the JCC denied all requested TPD benefits due to Claimant's unjustified refusal of suitable employment, the affirmative defense found in section 440.15(6), Florida Statutes (2006)....

...tating it is the intent of the Legislature that the Workers' Compensation Law be interpreted to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer), and is at odds with the affirmative defense provided for in section 440.15(6) (providing forfeiture of benefits where employee unjustifiably refuses an offer of employment suitable to his or her capacity)....

...Moreover, the Legislature, by including wages earned in sheltered employment as a basis for the calculation of TPD benefits, has expressed its intent as to the applicability of the concept of sheltered employment relative to TPD benefits—it is not applicable. See § 440.15(4)(a), Fla....

...rn shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment."). To the extent a temporary offer of employment is perceived to be the result of gamesmanship on the part of the employer, section 440.15(6) allows a JCC to excuse an injured worker from accepting such an offer if the JCC finds the job unsuitable, or finds justification in the worker's stated reason for refusing the job....

...gamesmanship, there is no reason to resort to the common-law concept of "sheltered employment" in such situations. Rather, the appropriateness of an offer of modified employment should be evaluated in accordance with the standards *1151 set forth in section 440.15(6) and consistent with the Legislature's intent that the statute be interpreted to facilitate the worker's return to employment at a reasonable cost to the employer....

...See § 440.015, Fla. Stat. (2006). If an injured employee refuses an offer of suitable employment, she shall not be entitled to any compensation during the continuance of such refusal unless in the opinion of the JCC such refusal is justifiable. See § 440.15(6), Fla....

...claimant refuses suitable employment." Id. Claimant's argument that the JCC erred by denying benefits by finding an unjustified refusal of suitable employment, and disregarding the "totality" of the remaining circumstances, fails to appreciate that section 440.15(6) is an affirmative defense. Thus, even if Claimant is otherwise entitled to TPD benefits, the successful assertion of this affirmative defense bars Claimant's entitlement for the relevant periods. See § 440.15(6), Fla. Stat. (2006). In denying TPD benefits for the period when the offer of employment was extant, the JCC focused on the E/C's affirmative defense based on section 440.15(6) and found, as required by the statute, the Employer offered employment suitable to Claimant and her restrictions, and Claimant unjustifiably refused such employment....

...the basis for her refusal are issues of fact which will not be disturbed in the presence of competent substantial evidence supporting such findings. TPD Benefits after Termination of Employment Nevertheless, in accordance with the plain language of section 440.15(6), the affirmative defense based on an unjustified refusal of an offer of employment applies only during the continuance of the refusal. See § 440.15(6), Fla....

...ability of the job for each applicable period to obtain the continued benefit of the defense. See Hyatt Regency Westshore v. Robinson, 629 So.2d 1088, 1089 (Fla. 1st DCA 1994) (interpreting analogous voluntary limitation of income provision found in section 440.15(3)(b)2., Florida Statutes (1990))....

...loyment ceased, and before she returned to work on November 16, 2007, we reverse. On remand, the JCC should determine whether Claimant proved, based on the evidence presented, entitlement to TPD benefits in accordance with the standards set forth in section 440.15(4), Florida Statutes (2006) from October 5, 2007, through November 15, 2007....

...That, however, is precisely what the JCC did in this case by awarding PTD benefits based on Claimant's present disability status, rather than his status after reaching MMI as required by the statutes and case law discussed below. This was error. [2] *624 Section 440.15, Florida Statutes, governs the payment of disability benefits to injured employees....

...Pertinent to this case, subsection (1) of the statute provides for the payment of PTD benefits to employees who have a "total disability adjudged to be permanent, " and subsection (2) provides for the payment of TTD benefits to employees whose disability is "total in character but temporary in quality." § 440.15(1)-(2), Fla. Stat. (2006) [3] (emphasis added). PTD benefits are expressly limited to "claimants with catastrophic injuries or claimants who are incapable of engaging in employment." § 440.15(1)(b), Fla. Stat. ("In no other case may [PTD] be awarded."). TTD benefits are payable for no more than 104 weeks, after which the employee's permanent impairment [4] rating must be determined. See § 440.15(2)(a), Fla. Stat. ("Once the employee reaches the maximum number of weeks allowed, ... [TTD] benefits shall cease and the injured worker's permanent impairment shall be determined."); § 440.15(3)(d), Fla....

...The permanent impairment rating is used to pay "impairment income benefits," commencing on "the day after the employee reaches [MMI] or after the expiration of temporary benefits, whichever occurs earlier," and continuing for a period determined by the employee's percentage of impairment. See § 440.15(3)(g), Fla. Stat. The statutory scheme in section 440.15 works seamlessly when the injured employee reaches MMI prior to the expiration of the 104 weeks of temporary disability benefits....

...ee whose 104 weeks of temporary benefits are about to expire to establish *625 entitlement to PTD benefits by proving that he or she will be permanently and totally disabled after MMI. Id. at 97-98 (referring to statutory requirement now codified in section 440.15(3)(d) that the employee's permanent impairment rating be assigned six weeks prior to expiration of temporary benefits)....

...based on his or her condition at the end of the eligibility period for temporary benefits, rather than his or her condition at MMI. On this issue, Judge Padovano's concurring opinion in Oswald succinctly explained: The remaining question is whether section 440.15(3)(a)4. [now section 440.15(3)(d)] requires an evaluation of the impairment at the time of the medical examination (during the six-week period before the temporary benefits expire), or at the time the employee will subsequently reach [MMI]....

...The opinion will be subjective, but no more so than other kinds of projections we ask medical experts to make. In any event, the evaluation must be made prospectively to preserve the distinction between temporary and permanent benefits. If we were to construe section 440.15(3)(a)4. [now section 440.15(3)(d)] to mean that the doctor must determine the degree of impairment at the time of the medical examination, we would then subvert the two-year limit in section 440.15(2)(a) for the payment of temporary benefits....

...An injured worker may have a high impairment rating at the time of the examination, and yet have a low impairment rating subsequently, at the time of [MMI]. Arguably, one solution would be to award [PTD] benefits based on the current degree of impairment and then revisit the employee's eligibility under section 440.15(1)(d) when the employee reaches [MMI]....

...In these circumstances, the claimant need not present medical proof that he or she has reached maximum medical improvement. The worker may immediately assert a claim for permanent total disability benefits, and the judge may award those benefits if the worker has proven that he or she is in fact totally disabled. Section 440.15(2)(a) of the Workers' Compensation Law provides that an injured worker who is totally disabled is eligible for temporary total disability benefits for a period of time not to exceed 104 weeks. The disabled worker must be evaluated by a doctor six weeks before the expiration of the 104-week period of eligibility, and the doctor must assign an impairment rating. The evaluation is required by section 440.15(3)(d), which states, After the employee has been certified by a doctor as having reached maximum medical improvement or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating, using the impairment schedule referred to in paragraph (b). § 440.15(3)(d), Fla....

...er and the duty to assign an impairment rating. If the injured worker is receiving temporary total disability benefits but has not yet reached maximum medical improvement, the evaluation must be completed, and the impairment rating must be assigned. Section 440.15(3)(d) employs the term "impairment rating," but this is merely a shorthand reference to a "permanent impairment rating." This section is contained within section 440.15(3), which deals exclusively with compensation for permanent impairments. Moreover, when this statute is read in conjunction with other statutes to which it relates, the term "impairment rating" can only mean a "permanent impairment rating." Section 440.15(2)(a), the subsection that sets the 104-week limit on eligibility for temporary total disability benefits, states in material part: Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker's permanent impairment shall be determined. § 440.15(2)(a), Fla....

...or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury" (emphasis added). It follows that the permanent impairment rating required by section 440.15(3)(d) is the equivalent of a medical finding that the disabled worker has reached maximum medical improvement. This conclusion is supported by two more detailed provisions, subsections 440.15(3)(d)1....

...If the employee has not been certified as having reached maximum medical improvement before the expiration of 98 weeks after the date temporary disability benefits begin to accrue, the carrier shall notify the treating doctor of the requirements of this section. § 440.15(3)(d), Fla....

...jured worker who is still totally disabled at the end of the maximum period of eligibility for temporary total disability benefits is deemed to be at maximum medical improvement, regardless of any potential for improvement. The doctor is required by section 440.15(3)(d) to assess and certify the injured worker's "permanent impairment," a condition that can have but one meaning under section 440.03(22): a condition existing "after the date of maximum medical improvement." It follows that the perm...

...1st DCA 2010). The conclusion that a disabled worker is entitled to receive disability benefits continuously throughout the course of his or her disability is consistent not only with the stated intent of the law but also with the overall statutory scheme. Section 440.15(1)(d) enables an employer to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation....

...n though claimant was still totally disabled, "[t]he Florida Workmen's Compensation Law is inadequate in failing to provide for a situation such as this." Under the current statute, temporary total disability benefits have been reduced to 104 weeks, section 440.15(2)(a), Florida Statutes (2006), 246 weeks less than the 350 weeks of benefits in Thompson....

...Generally, unless the amended statute in question has effectively eliminated a claimant's cause of action, the amendment does not violate article I, section 21. See John v. GDG Servs., Inc., 424 So.2d 114, 116 (Fla. 1st DCA 1982) (upholding against an access to courts challenge an amendment to section 440.15(3)(b), concerning permanent impairment benefits, this court reasoned: "Although we note the benefits under the new wage-loss provisions may result in reduced benefits, the right to recover for industrial injuries has not been so reduced as to be effectively eliminated. ") (emphasis added), decision approved, 440 So.2d 1286 (Fla. 1983). Judge Webster has recently warned about potential constitutional concerns in the context of the apportionment of benefits under section 440.15(5)(b): If, as I think will likely be the case, a significant number of injured workers receive significantly reduced benefits because of section 440.15(5)(b), the courts might well conclude that because the right to benefits has become largely illusory, Florida's Workers' Compensation Law is no longer a reasonable alternative to common-law remedies and that, accordingly, workers have...

...[7] Having served on the panel in Oswald, unlike any of the judges who have joined in this dissent, I alone accept responsibility for the error. [8] The two-year limit on temporary disability benefits was enacted as a part of the Workers' Compensation Law in 1993. See § 440.15(2)(a), Fla. Stat. (Supp. 1994). Before that, the time limit on temporary disability benefits was five years. See § 440.15(2)(a), Fla....

...No further recalculation is allowed for the cost of living increases. As in Acker, we certify the following question to the supreme court: WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)(1), FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? Reversed and Remanded....

...Alex Lancaster, Sarasota, for petitioner. Keith A. Mann of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for respondents. PER CURIAM. This case is before us to review a decision of the First District Court of Appeal which upheld subsection 440.15(3)(a)1., Florida Statutes (Supp....

...On January 8, 1981 a tire weight thrown by a fellow employee struck him in the eye. Mahoney consequently suffered an eighty percent loss of vision in the injured eye. For this twenty-four percent permanent impairment of the body as a whole, Mahoney received $1,200 in impairment benefits. He contends that subsection 440.15(3)(a)1. unconstitutionally deprives him of access to the courts for redress of his injury. We disagree. In Acton v. Ft. Lauderdale Hospital, 440 So.2d 1282 (Fla. 1983), we held that subsections 440.15(3)(a) and (b), Florida Statutes (1981), do not violate constitutional *1286 guarantees of access to the courts and equal protection....

...The $1,200 award for loss of sight in one eye may appear inadequate and unfair, [3] but it does not render the statute unconstitutional. Accordingly, we approve the decision of the district court. It is so ordered. ALDERMAN, C.J., and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur. ADKINS, J., dissents. NOTES [1] § 440.15(3)(a)1....

...One hundred dollars for each percent of permanent impairment of the body as a whole for that portion in excess of 50 percent. [2] The loss of 80% of vision in one eye formerly resulted in a lump-sum payment equal to 60% of a worker's average weekly wage multiplied by 175 weeks. § 440.15(3), Fla. Stat. (1977). [3] We note that the same loss of vision in one eye today would result in an award of $9,500 in impairment benefits. § 440.15(3)(a), Fla....

...ablish a bona fide effort on claimant's part to establish her own business"). Hence, any award of temporary partial disability benefits for the time period of August 1994 through March 1996 must be based on the claimant's deemed earnings pursuant to section 440.15(4)(b), Florida Statutes....

...the DC denied all claims and dismissed the case finding that the two-year statute of limitations set forth in section 440.19(2), Florida Statutes (1981) had run. The DC also suggested that claimant's right to wage-loss benefits had terminated under section 440.15(3)(b)3.a., Florida Statutes (1981)....

...of limitations. Accordingly, we reverse the order of the DC finding that the statute of limitations set forth in section 440.19(2), Florida Statutes (1981) has run, and we remand the case to the DC for further proceedings. Furthermore, we find that section 440.15(3)(b)3.a....

...As of the end of any 2-year period commencing at any time subsequent to the month when the injured employee reaches the date of maximum medical improvement, unless during such 2-year period wage-loss benefits shall have been payable during at least 3 consecutive months; Section 440.15(3)(b)3.a. is not a statute of limitations in the sense that section 440.19(2)(b) is a statute of limitations. Rather, section 440.15(3)(b)3.a....

...However, if wage-loss benefits are payable during at least three consecutive months of that two-year period, i.e., the amount of income received by the worker is less than his pre-injury earnings, then the right to wage-loss benefits will not terminate under section 440.15(3)(b)3.a. Monroe Furniture Co. v. Bonner, 509 So.2d 1264 (Fla. 1st DCA 1987). In her order, the DC impliedly states that, in order to avoid the limitations period set forth in section 440.15(3)(b)3.a., wage-loss forms must be filed within two years of the date of MMI. Under the case law interpreting section 440.15(3)(b)3.a., this finding was too broad. Accordingly, we reverse the DC's finding that section 440.15(3)(b)3.a....

...Collision Clinics International Inc., 413 So.2d 827 (Fla. 1st DCA 1982); Doctor's Hospital of Lake Worth v. Robinson, 411 So.2d 958 (Fla. 1st DCA 1982). In establishing claimant's permanent total disability as of the date of accident, the judge applied section 440.15(1)(b), Florida Statutes, which provides that: ......

...1962), as establishing that under the statute "the moment the physical impairments described therein occur, a presumption of permanent disability is in being... ." While Jackson also involved a different issue than is here presented, the supreme court in Jackson did construe section 440.15(1)(b) as creating a presumption of permanent total disability at "the moment" *786 when the statutorily-described event "transpires." Since the record in the present case indicates that claimant's paraplegia occurred as of the date of her accident the judge properly applied section 440.15(1)(b), as construed in Jackson, in establishing claimant's permanent disability at that moment even though maximum medical improvement was not attained until a later date. After claimant's permanent total disability was established as of the date of accident, supplemental benefits under section 440.15(1)(e)1, Florida Statutes, were awarded commencing on the first day of the following calendar year....

...Nevins Fruit Co., IRC Order 2-3775 (April 20, 1979), since the beginning of claimant's permanent total disability coincided with "the date of injury" which is specified as the beginning point for the calendar year multiplier in the supplemental benefit computation under section 440.15(1)(e)1....

...In the first instance, we have attempted to ascertain controlling expressions of legislative intent. There are two apportionment provisions in our present workmen's compensation law. One provision is set out in Section 440.02(19), F.S. and the other is contained in Section 440.15(5) (c)....

...Carver, 164 So.2d 803 (Fla. 1964). As a result of the 1965 amendment, it is quite clear that the Legislature intended to exclude temporary disability and medical benefits from any form of apportionment under Section 440.02(19). The question remains whether Section 440.15(5) (c), which was unchanged by the 1965 Legislature and remains unchanged, was intended to be similarly limited in the scope accorded its apportionment provision. Section 440.15(5) (c) provides: "The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from benefits for a later injury nor preclude benefits for death resulting therefrom; but in determin...

...ability." It is noted this subsection reveals the absence of a limitation such as the one contained in Section 440.02(19), F.S. We are fully cognizant of the legislative intent suggested by the absence of such a limitation; that is, by omitting from Section 440.15(5) (c) the limitations set out in Section 440.02(19), it is arguable that the Legislature intended Section 440.15(5) (c) to apportion compensation for temporary disability and medical benefits. On the other hand, it is equally arguable that the affirmative expression set out in the later enacted Section 440.02(19) should control the scope of Section 440.15(5) (c) in the absence of underlying differences in the two sections suggestive of a meaningful basis for distinguishing their operative effects....

...eat pre-existing disability resulting from injury any differently from pre-existing disability resulting from disease or other congenital defect. In view of the interpretation placed on these two apportionment sections in Stephens, the argument that Section 440.15(5) (c) should be construed to conform to the limitation contained in Section 440.02(19) is particularly persuasive. We do not, however, predicate our holding in the present case solely on the persuasive character of the foregoing argument. There is another impressive and cogent reason for concluding that Section 440.15(5) (c) was not intended to apportion temporary disability and medical benefits. In Stephens v. Winn-Dixie Stores, Inc., supra, we held that the apportionment provision of Section 440.15(5) (c) and the reimbursement provision of Section 440.49(4) (c) are perfect equivalents and can only be applied as alternatives....

...This interplay of the Fund and apportionment provisions of the Act as set forth in Stephens is significant for the purpose of defining the precise scope of the apportionment section. If temporary disability and medical benefits are apportionable under Section 440.15(5) (c), it is readily apparent that the Fund provision will not operate as a source of benefits to the employee since that provision is expressly limited to situations where an employee suffering from a pre-existing permanent physical impairment ineurs a subsequent permanent disability. Thus the net effect of construing temporary disability and medical benefits to be apportionable under Section 440.15(5) (c) would, in all cases where that section is applicable, preclude an employee from recovering full compensation....

...The E/C concede the record contains no evidence that Goldsmith was suffering from disability either at the time of the accident or at the time of the hearing. Goldsmith's substantive rights are governed by Chapter 440, Florida Statutes (1981). We must construe Sections 440.02(18) and 440.15(5)(a), Florida Statutes (1981) to determine whether PTD benefits may be apportioned between a compensable injury and pre-existing conditions....

...Construction should avoid conflict between the two, City of Indian Harbour Beach v. City of Melbourne, 265 So.2d 422 (Fla. 4th DCA 1972), and should find operations which preserve both. Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA 1962). Section 440.15(5)(a) states that: The fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor preclude benefits for death resulting therefrom....

...The differing language in the amended statute indicates a different meaning was intended. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977). The deputy equated 440.02(18)'s "permanent impairment" with "impairment benefits" under Section 440.15(3)(a), holding that it means that the Legislature intended to apportion impairment benefits where Section 440.15(3)(a) permanent impairment is found, that is, permanent impairment due to amputation, loss of 80% or more of vision of either eye or serious head or facial disfigurement. This construction would indicate that apportionment of PTD benefits is not authorized. But Section 440.15(5)(a) by statutory construction indicates they are....

...results from the injury." This is the definition intended when "permanent impairment" is used in Section 440.02(18). "Any anatomic or functional loss" would include permanent, total loss of wage earning capacity. Further, "impairment benefits" under Section 440.15(3)(a) are benefits for limited types of permanent impairment. The legislature knew this difference yet used the broader "permanent impairment" in Section 440.02(18). Reading Sections 440.02(18) and 440.15(5)(a) in pari materia, PTD benefits can be apportioned, and the deputy erred in holding that they could not....

...in to pre-1979 statute accidents by the use of such terms as "permanent partial disability" or "judge of industrial claims," which terms are not pertinent to accidents occurring after the 1979 amendments to the Florida Workers' Compensation Law. See Section 440.15(3), Florida Statutes (Supp....

...*295 Stephen L. Rosen of Morris & Rosen, Tampa, for appellees. PER CURIAM. We reverse the deputy's 1981 order awarding interest at six per cent per annum on payments due but unpaid claimant since 1978 from the Workers' Compensation Trust Fund pursuant to section 440.15(1)(e), Florida Statutes (1981)....

compensation cases shall be decided on their merits." § 440.015, Florida Statutes (1994 Supp.). NOTES [1] Prior

...On petition for rehearing appellants contend that this Court invalidated the deputy commissioner's finding of merger and that, therefore, appellee's recovery of benefits is limited to the scheduled compensation for the injury to her right knee, pursuant to § 440.15(3)(b), Florida Statutes; that this Court erred in upholding the deputy commissioner's finding of disability due to loss of wage-earning capacity since economic impact is not a factor in benefits awarded pursuant to scheduled injuries....

...ity. To the contrary, however, as appellant correctly points out, since appellee's injury occurred prior to July 1979, a finding of merger is necessary to this award of benefits which otherwise would be governed by the scheduled injury provisions of § 440.15, Florida Statutes (1977)....

...tion and the knee injury, though the evidence is insufficient to include the pre-existing obesity in the merger. Appellant took appellee as it found him as to both the obesity and the arthritis. Consequently, the benefits payable are not governed by § 440.15....

...The employer/carrier (E/C) appeals from the deputy commissioner's order awarding wage-loss benefits. The E/C asserts that the deputy erred because the claimant failed to present evidence supporting a finding of a permanent physical impairment as required by Section 440.15(3)(b), Florida Statutes....

...Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). Although the statutory scheme governing a claimant's entitlement to wage-loss benefits affords the employer/carrier the right to contest on appropriate grounds succeeding wage-loss claims, §§ 440.15(3)(b), 440.185(10), and 440.20, Florida Statutes, there would be no justification for requiring the parties to relitigate the element of permanent impairment after the same has been determined in a wage-loss proceeding....

...On deposition, Dr. Smith testified he did not use the Guides. The deputy determined the Guides did not apply and modified the award increasing her impairment rating to fifteen percent (15%) permanent partial disability based on loss of wage earning capacity. Section 440.15(3)(a)(3) provides: In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings....

...The trial court so found and we find ample support for his finding in the record. The next question is whether or not claimant's injury entitled him to compensation for permanent partial disability, denied him by the Circuit Court. The answer to this question turns on the interpretation of Section 440.15 (3)(u), F.S.A. The theory of the Workmen's Compensation Law is that one recovers compensation when there is an impairment of earning capacity or when by accident or otherwise, he brings himself within one or more of the categories of disability defined therein. Section 440.15 (3) enumerates the injuries for which compensation may be recovered. The injury to claimant is not included in any of these categories but Section 440.15 (3)(u) is a blanket provision designed to cover and provide relief for other injuries not included in the list defined in Section 440.15 (3)....

...ed to compensation for diminution of earning capacity, the issues were made and the case was tried on that theory and the evidence is not such that a judgment on any other theory could be awarded. We think he brought himself within the provisions of Section 440.15 (3), F.S.A....

...manent Impairment (1977) ( Guides ). Dr. Gilbert, upon whom the deputy relied, testified that claimant had a ten to fifteen per cent permanent anatomical impairment, but he did not consult the Guides. Use of Dr. Gilbert's rating was technical error. Section 440.15(3)(a)3, Florida Statutes (1979)....

...Once the claimant has satisfied the initial burden, the burden of proof shifts to the E/C to demonstrate a voluntary limitation of income or to demonstrate that the injury is not creating an impairment or work-related physical restriction which would limit the claimant's ability to perform appropriate employment. § 440.15(3)(b), Fla....

...Arnold left FBC because her employer, concerned her new work restrictions would complicate scheduling, refused *244 to allow her to continue working. [1] The evidence provides no support for the view that she left her employment "without just cause." § 440.15(7), Fla....

...This is both "just cause," and a reason directly attributable to her employer. Despite overwhelming evidence to the contrary, the order under review states that she voluntarily left her employment. On this basis, the order concludes that FBC is entitled, pursuant to section 440.15(7), Florida Statutes (2004), to impute to her the income she would have earned, [2] if she had not (according to the order) quit her job at FBC....

...the scope of her doctor's restrictions." Alternatively, FBC and its insurance carrier contend that, if Ms. Arnold's resignation letter does not bar payment of temporary partial disability benefits outright, they were entitled to impute "deemed earnings" based on amendments to section 440.15(7), Florida Statutes....

...As the claimant concedes, FBC is entitled to offset the unemployment compensation benefits that Ms. Arnold has already received against any award of temporary partial disability benefits. Reversed and remanded. PADOVANO and LEWIS, JJ., concur. NOTES [1] For this reason, section 440.15(6), Florida Statutes (2004), does not apply in the present case....

...y thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable. § 440.15(6), Fla. Stat. (2004) (emphasis supplied). FBC and its insurance carrier do not contend that section 440.15(6) applies here. [2] See generally § 440.15(7), Fla....

...(2004) ("An individual shall be disqualified for [unemployment compensation] benefits: . . . [i]f the [agency] finds that the individual has failed without good cause . . . to accept suitable work when offered to . . . her. . . . "). [5] Since October 1, 2003, see ch.2003-412, § 18, at 3926-27, Laws of Fla., section 440.15(7) has provided: (7) EMPLOYEE LEAVES EMPLOYMENT.—If an injured employee, when receiving compensation for temporary partial disability, leaves the employment of the employer by whom she or he was employed at the time of the accident fo...

...If the employee leaves her or his employment while receiving temporary partial benefits without just cause as determined by the judge of compensation claims, temporary partial benefits shall be payable based on the deemed earnings of the employee as if she or he had remained employed. § 440.15(7), Fla....

...e satisfies the burden of demonstrating that the injury contributed to the wage loss after the termination. Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173, 1177 (Fla. 1st DCA 2003). But see Ch.2003-412, § 18, at 3925, Laws of Fla. (adding to section 440.15(4)(e), Florida Statutes, effective October 1, 2003: "If the employee is terminated from post injury employment based on the employee's misconduct, temporary partial disability benefits are not payable as provided for in this section.")....

...sed only as to work prohibited by treating doctors. We find no merit in the employer/carrier's challenge based on evidentiary insufficiency. This order, denying the claim to the full extent claimant was able to earn during temporary disability under § 440.15(4)(b), Florida Statutes, complies precisely with the rule stated in earlier cases: ... a specific finding ... that the claimant had voluntarily limited her income by not conducting an adequate work search ... triggers the provisions of Section 440.15(3)(b)(2), F.S....

...Zeide's opinion that there is a causal relationship between the industrial accident and the cervical injury together with the elbow injury." [2] The amount in controversy (not stated in the order) would appear to be $31.31 weekly for the period in question under the formula in § 440.15(4)(a), Florida Statutes, assuming no actual earnings....

...Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). Claimant was not deposed until the end of the five months' period, after which date her search was found to have been sufficient. [3] Identical language in respect to temporary disability wage loss appears in § 440.15(4)(b), Florida Statutes (1983), and the earlier version applicable here.

...13, in which it reported having paid claimant $1,485.00 for temporary total disability, and $525.00 for permanent partial disability, the latter representing compensation for 17 1/2 weeks at $30.00 a week. In said report the carrier listed date of final payment as November 23, 1954, and date case closed as February 23, 1955. Section 440.15(3) (c) of the Workmen's Compensation Law [F.S.A.] provides that compensation shall be paid for 175 weeks for the loss of a hand, and Section 440.15(3) (s) of said Law provides that compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of *558 the member....

...ip between the change in employment status and the compensable injury. In asserting a claim for benefits, the initial burden is on the claimant to demonstrate an entitlement to benefits upon a change in employment status due to a compensable injury. § 440.15(3)(b)2, Fla....

...e employer/carrier to demonstrate a voluntary limitation of income or to demonstrate that the injury is not creating an impairment or work-related physical restriction which would limit the claimant's *1345 ability to perform appropriate employment. § 440.15(3)(b), Fla....

...Where wage loss benefits may be awarded despite a finding of voluntary limitation of income, the entitlement to wage loss benefits must be determined on a month-to-month basis. Mathis, 511 So.2d at 664. This same rule would apply to a claim for TPD benefits. See § 440.15(4)(b), Fla....

...Not one of the doctors who examined her was of the opinion that she was unable to work, once she reached maximum medical improvement on September 16, 1996. For purposes of the Workers' Compensation Law, permanent, total disability entails catastrophic injury as defined in section 440.02, Florida Statutes (1995). See § 440.15(1)(b), Fla....

...(SSD) benefits. The total of these three benefits is $1,269.90. The employer/carrier sought to offset Dixon's workers' compensation benefits by $151.90 per month, the amount that the three benefits exceeded his $1,118 monthly AWW. Dixon argued that section 440.15(10), Florida Statutes (Supp.1994), prevents an employer/carrier from reducing a claimant's benefits beyond 80 percent of his or her average current earnings (ACE) and that, because this amount of $1,666.40 was more than the total amount of benefits Dixon was receiving, the statute prevented any offset....

...Any payment by the employer over and above compensation paid or awarded and medical benefits, pursuant to subsection (14), shall be considered a gratuity. § 440.20(15), Fla. Stat. (1985). Because the claimant's ACE did not exceed his AWW, the limits of section 440.15(10) were not an issue....

...enefits exceed 100 percent of his or her AWW, irrespective of the claimant's ACE. We disagree. As stated, Grice did not involve a situation in which a claimant's ACE exceeded his AWW. Therefore, this Court did not discuss the restrictions imposed by section 440.15(10)(a)....

...402 and 423, does not exceed 80 percent of the employee's average weekly wage. However, this provision shall not operate to reduce an injured worker's benefits under this chapter to a greater extent than such benefits would have otherwise been reduced under 42 U.S.C. s. 424(a). § 440.15(10)(a), Fla....

...§ 424a (1995); American Bankers Ins. Co. v. Little, 393 So.2d 1063, 1064 (Fla.1980). By extending our decision in Grice to those situations in which a claimant's ACE exceeds his or her AWW, this Court would vitiate the express limits set forth in section 440.15(10)(a)....

...Acker, 755 So.2d 597 (Fla.1999), our interpretation of section 440.20(15) to mean that a claimant may not receive in excess of 100 percent of his or her AWW was a judicial interpretation of an ambiguous statute and should not be extended to render another statute meaningless. This Court must first try to read sections 440.15(10)(a) and 440.20(15) harmoniously....

...That can be accomplished by recognizing that our holding in Grice does not apply to situations in which a claimant's ACE exceeds his or her AWW. Accordingly, we answer the certified question in the negative and hold that when a claimant is receiving SSD benefits in addition to workers' compensation, thus implicating section 440.15(10)(a), an employer/carrier may offset workers' compensation benefits but only to the extent that the claimant's benefits exceed 80 percent of AWW or ACE, whichever is greater....

...Appellants (E/C) argue the Judge of Compensation Claims (JCC) erred by *666 awarding payment for Claimant's ulcer condition because Claimant's industrial accident was not the major contributing cause of the ulcer, and erred in her application of the "employee refuses employment" provisions of section 440.15(7), Florida Statutes (2001), when awarding temporary partial disability (TPD) benefits....

...n when Claimant refused suitable employment. If an injured employee refuses suitable employment, that employee "shall not be entitled to any compensation during the continuance of such refusal" unless, in the JCC's opinion, refusal is justified. See § 440.15(7), Fla....

...when the claimant refuses suitable employment. The sanction applies only during the continuance of the refusal. When Claimant accepts suitable employment, the compensation the E/C must pay Claimant is determined pursuant to the formula set forth in section 440.15(4)(a), Florida Statutes (2001)....

...Moreover, there is no obligation for the E/C to continuously remind Claimant of his employment opportunities with Goodwill. Once the JCC determined Claimant refused suitable employment for certain time periods, the JCC was required to deny all compensation for those periods. See § 440.15(7). Instead of complying with the statutory mandate of section 440.15(7), Florida Statutes, the JCC erroneously "deemed earnings" [9] for days Claimant did not work, requiring the E/C to pay $104.24 for each day (eight hours x $13.03)....

...s a depressive disorder, results naturally or unavoidably from a serious physical injury. [4] See 2003 Ch.2003-412, § 6, Laws of Fla. [5] By statute, Claimant's weekly benefits are capped and cannot exceed 66.66% of his AWW or $714.64 per week. See § 440.15(4)(a)....

...[8] Claimant was hospitalized for his ulcer condition from June 7-17, 2003. The award of TTD benefits for this period is supported by competent, substantial evidence. See Myers v. Sherwin-Williams Paint, Co., 838 So.2d 608, 612 (Fla. 1st DCA 2003). [9] The JCC appears to have gleaned this concept from a prior version of section 440.15(4). Prior to 1994, Chapter 440 contained a "deemed earnings" provision "which had enabled the courts to attribute earning capacity to a worker who was underemployed . . . ." Vencor Hosp. v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998); see § 440.15(4)(b), Fla. Stat. (1993). Although the 1994 revision removed the "deemed earnings" provision, the current statute continues to employ the "earning capacity" concept. See § 440.15(4)(a), Fla....

...remedy for the individual who has relied on the receipt of such benefits—the statute allows the employee to have the overpayments deducted from bi-weekly installments of future benefits, in an amount not to exceed 20% of the bi-weekly benefits. See § 440.15(12), Fla....

...Both parties contest the deputy commissioner's finding that MMI was reached on 16 September 1980. We conclude, however, that this finding is supported by competent, substantial evidence and, therefore, it should not be disturbed. The deputy commissioner did err, however, in awarding catastrophic loss benefits pursuant to Section 440.15(2)(b), Florida Statutes (1979), because there was no total loss of use of the hand because of organic damage to the nervous system. Lavin argues that under the 1979 version of Section 440.15(2)(b), a claimant need not prove that total loss of use was due to organic damage to the nervous system....

...The respondents in their application for review before the full commission contended the deputy "* * * erred, a a matter of law, in failing to apportion the extent of the claimant's pre-existing disability as provided in Florida Statutes § 440.02(19) and § 440.15(5) [F.S.A.], in his award for permanent partial disability benefits, temporary total disability benefits, and remedial medical treatment, care and hospitalization." The record shows that claimant had a pre-existing condition, evidently an o...

...subsequent industrial accident. Neither the petitioner nor the respondent city had prior notice of this "* * * condition which is likely to be a hindrance or obstacle to employment." We therefore conclude that apportionment is appropriate under Sec. 440.15(5)(c)....

...atively. The only issue to be resolved was whether Claimant's permanent impairment for hypertension, standing alone, constituted a "disability," so as to qualify for coverage under the Workers' Compensation Act as an occupational disease pursuant to section 440.151, Florida Statutes....

...An exception to the actual "injury by accident" requirement allows an employee's disease or medical condition to be "treated as the happening of an injury by accident" if he is able to establish he has an occupational disease. It is under the occupational disease provisions of section 440.151, Florida Statutes, that Claimant seeks coverage....

...Here, Claimant's ability to satisfy the "four prong test" [1] that comprises part of the statutory requirements is not at issue, because the parties stipulated to the applicability of the presumption under section 112.18(1), Florida Statutes. However, Claimant must still satisfy the other statutory requirements. In reviewing section 440.151, and the applicable case law interpreting the statute, three points emerge as significant. One, we do not look beyond section 440.151 to define its relevant terms. See Watkins Eng'rs & Constructors v. Wise, 698 So.2d 294 (Fla.1st DCA 1997) (holding occupational disease provision language of section 440.151, is "plain," and "so long as an occupational disease fits within the criteria enumerated therein, such disease constitutes a compensable injury") (emphasis added). A claimant either meets the requirements for coverage under section 440.151, or he does not. This court has previously refused to incorporate other subsections of the Act to add to or supplement the clearly delineated requirements set forth in section 440.151....

...Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla.1st DCA 1981) (reversing JCC's finding that bronchial asthma and vasculitis were occupational diseases). Even where a condition of employment causes a permanent disease, failure to meet the statutory requirements of section 440.151 means the claimant would not be entitled to compensation or benefits under the Act....

...nt, since he had not suffered "disablement," his disease was not an occupational disease under the Act). At issue here is whether Claimant's hypertension resulted in " disablement or death . . . from an occupational disease as hereinafter defined ." § 440.151, Fla. Stat. Since section 440.151 defines disablement, this statutory language means hypertension (or any other disease or medical condition where employment is the major contributing cause) will not qualify as an occupational disease unless Claimant meets the statute's definition of disablement. The Meaning of Disablement The dissent acknowledges disablement must be established before Claimant can be covered by the Act. However, the dissent fails to use the statutory definition of "disablement" provided in section 440.151....

...incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease; and `disability' means the state of being so incapacitated." § 440.151(3), Fla....

...The question then becomes "deprived of the capacity or natural power to do what"? The statute provides the answer. A claimant must be deprived of the capacity or natural power to "perform[] . . . his work in the last occupation in which injuriously exposed to the hazards of such disease." § 440.151(3), Fla....

...Although there are many significant differences in workers' compensation law, with various amendments to the Act occurring at least nine times from the 1979 amendments through the 1993 amendments, there is no difference in the occupational disease provision language of section 440.151, nor is there any difference in our case law defining what disablement means in that section. During each of these time-periods, section 440.151(1) provided coverage for an occupational disease only when it resulted in disablement or death, and section 440.151(3) defined "disablement" as actual incapacity to perform "work in the last occupation in which injuriously exposed." Case law has consistently interpreted this language as defining disablement or disability to require incapacity causing actual wage-loss....

...s of earnings ). No loss of earnings means no disability. No disability means no occupational disease. In the third time-period utilized by the dissent, after the 1993 amendments, the case law continues to define disablement or disability as used in section 440.151 as requiring actual wage-loss....

...Clearly, this court found the disablement necessary to establish an occupational disease was an incapacity to work, which results in actual wage-loss. To obtain coverage under the Act, a claimant proceeding under the occupational disease provisions must establish "disablement." Disablement as used in section 440.151 has consistently, through each of the dissent's time-periods, been defined in only one way....

...d "disability" are different, and, by holding the claimant did not have to establish disability to receive permanent impairment benefits, this court recognized that difference. The dissent's premise is that, since permanent impairment benefits under section 440.15(3) do not require a claimant to establish disability, then disability may be presumed under section 440.151 any time a claimant has a permanent impairment. In other words, the dissent reasons, Claimant can use the benefit provisions of section 440.15(3), to satisfy the coverage requirements of section 440.151....

...of earning capacity. Besides the fact that the case never uses the word "impairment," there are two additional problems with the dissent's reliance on Robinson. First, the issue in Robinson was "the exact degree of [claimant's] disability under F.S. § 440.15(3)(s), F.S.A." Robinson, 116 So.2d at 242....

...of an injury by accident." Without an injury by accident, a necessary prerequisite to the applicability of Chapter 440, Claimant's hypertension is not covered under the Act. Without coverage under the Act, Claimant is not eligible for benefits under section 440.15(3)....

...When employees have been symptomatic and ill enough with occupational diseases to have to miss work, they have thereby suffered "disablement," defined by statute as "an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing *736 her or his work . . ." § 440.151(3), Fla....

...(2002); or, since October 1, 2003, a "disability," statutorily defined 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." § 440.02(13), Fla. Stat. (2003); see also § 440.151(1)(a), Fla....

...WEBSTER, J., dissenting. The majority concludes that a permanent impairment for hypertension does not constitute a "disability" for purposes of section 112.18(1), Florida Statutes (2002), unless there is evidence of actual wage loss. In doing so, it relies on section 440.151, Florida Statutes (2002), which provides that "the disablement ....

...t' means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease. . . ." § 440.151(1)(a) & (3), Fla....

...According to the majority, this "can logically only support a wage-loss requirement for disability." Maj. Op. at 730-31. Regardless of whether all of this is true, it is irrelevant for purposes of this case. A fundamental flaw in the majority's analysis is its assumption that the 2002 version of section 440.151 applies....

...Orange County Fire/Rescue, 819 So.2d 158, 160 (Fla.1st DCA 2002). In this case, the date of disability was April 2, 2004, when claimant reached maximum medical improvement with a permanent physical impairment. Accordingly, this case is governed by the 2003 version of section 440.151 (effective October 1, 2003), which does not contain the definition of "disablement" relied upon by the majority but, rather, merely refers to section 440.02(13) which provides that "`[d]isability' means 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." As I shall explain, pursuant to the "permanent impairment benefits" provisions of section 440.15(3), Florida Statutes (2003), a conclusive presumption arose that claimant was disabled to some degree by his permanent impairment. Section 440.15, Florida Statutes (2003), is entitled "Compensation for disability" and provides for four types of compensation: (1) permanent total disability benefits; (2) temporary total disability benefits; (3) permanent impairment benefits; and (4) temporary partial disability benefits....

...Although the statute does not explicitly provide for "permanent partial disability" benefits per se, those who suffer permanent impairments but are not totally disabled are entitled to permanent impairment benefits calculated according to a schedule under section 440.15(3)....

...ent" and "disability." In other words, some degree of disability—i.e., loss of earning capacity—is conclusively presumed by the fact the claimant suffers from a permanent impairment. This conclusion is supported by an examination of the history of section 440.15(3). Prior to 1979, section 440.15(3) provided for "permanent partial disability" benefits which were payable without proof of actual wage loss if the claimant suffered a scheduled injury....

...Robinson, 116 So.2d 240, 243 (Fla.1959) (footnote omitted). In 1979, our legislature amended the Workers' Compensation Law by re-establishing the centrality of the wage-loss principle. See 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 80.06[1] (2005). Specifically, section 440.15(3) was rewritten to replace "permanent partial disability" benefits with "permanent impairment and wage-loss benefits." Ch....

...However, beginning in 1993, the legislature enacted amendments that had the effect of returning Florida's Workers' Compensation Law to its pre-1979 position. See 4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 80.06[2] (2005). Effective January 1, 1994, the legislature amended section 440.15(3) by expanding "permanent impairment benefits" to become the primary benefit, payable "at the rate of 3 weeks for each percentage point of impairment." Ch....

...esumed to know how the judiciary has construed a law when enacting a new version of that law and to have adopted prior judicial constructions unless a contrary intent is expressed in the new version). It is the presumption of disability created by a section 440.15(3) permanent impairment that satisfies the "disablement" requirement of the occupational disease provisions of section 440.151(1)(a), Florida Statutes (2003), and the "disability" requirement of the compensability presumption of section 112.18(1), Florida Statutes (2003). The majority's conclusion that a permanent impairment is not a disability for purposes of either section 440.151(1)(a) or section 112.18(1) without a showing of an actual loss of earning capacity makes sense only under the old wage-loss system which no longer exists....

...ctual loss of earning capacity. However, if one follows the majority's reasoning to its only logical conclusion, the claimant in this case must prove a loss of earning capacity to receive permanent impairment benefits. This is simply not required by section 440.15(3)....

...a. Dep't of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla.2005). The majority's analysis does not comport with this important principle of statutory construction because it does not give effect to the permanent impairment provisions of section 440.15(3)....

...Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla.1st DCA 1981). The four prong test has been legislatively expanded for any date of accident after October 1, 2003. [2] There is no legislative history supporting the conclusions reached by the dissent. However, since section 440.151 is clear and unambiguous, we cannot look beyond its plain language or resort to rules of statutory construction to ascertain intent....

...nymous with the date of accident or, in the occupational disease context, the date of disability. [4] Effective October 1, 2003, the Legislature amended the statute to define "disablement" to mean "disability" as set forth in section 440.02(13). See § 440.151(3), Fla....

...orced father of two children for whom he has been ordered to provide support. Although claimant is not entitled to receive compensation benefits for the periods of his incarceration, any compensation due for that period is payable to his dependents. § 440.15(8), Fla....

...surgery. The award of temporary total disability benefits is reversed, insofar as it encompasses the periods of claimant's incarceration, and is remanded for a determination whether there are persons dependent upon claimant for support, pursuant to section 440.15(8), Florida Statutes....

...If so, the award of temporary total disability benefits should be modified to reflect that compensation benefits due during claimant's incarceration are to be paid to his dependents. Reversed and remanded for further proceedings. LAWRENCE and DAVIS, JJ., concur. NOTES [1] Section 440.15(8), Florida Statutes (1991), provides: In case an employee becomes an inmate of a public institution, then no compensation shall be payable unless he has dependent upon him for support a person or persons defined as dependents elsewher...

...— permanent compensation benefits were not at issue. The quote from Wilcox, above referred to, requiring the deputy to apportion from the award the unrelated anatomical impairment, applies only to a claim for permanent benefits, since, pursuant to Section 440.15(5)(a), Florida Statutes, as between employers and employees, "[c]ompensation for temporary disability, medical benefits, and wage-loss benefits shall not be subject to apportionment." It is possible, however, as reflected in the majori...

is not an economic or administrative burden." § 440.015, Fla. Stat. Because the rights of the parties

...he number of weeks subsequent to June 20, 1991, equals $35,250.00. Thereafter, benefits will be paid on the merits of the claims. When a claimant receiving wage loss benefits suffers a subsequent injury causing temporary disability and/or wage loss, section 440.15(5)(c) and (d), Florida Statutes, provides a method for calculating the amount of wage loss benefits....

...Substantive statutes are presumed to operate prospectively unless the legislature expressly manifests a contrary intention. Seddon v. Harpster, 403 So.2d 409, 411 (Fla. 1981). *348 In Litvin v. St. Lucie County Sheriff's Department, supra , we held that a procedural amendment to section 440.15(3)(b)2, Florida Statutes, imposing a 14-day time limit for filing wage loss forms and job search reports, applied prospectively to wage loss periods occurring after the effective date of the amendment....

...Byers and Sumpter indicate, however, that when the substantive legislation changes the amount of the wage loss benefit (or creates a new wage loss benefit), application of such legislation to an old injury will be viewed as retroactive, and, thus, forbidden. The amendments to section 440.15(5)(c) and (d) reduce a claimant's wage loss benefits and should not be applied to wage loss claims where the injury occurred before the amendment. Accordingly, the 1986 statute applies to this case. The 1986 version of section 440.15(5)(c) and (d) does not contain the phrase "In calculating the amount of any wage loss benefits due, the average weekly wage for the subsequent accident shall be deemed to be the salary, wages, and other remuneration the employee is abl...

...s calculated this way before the 1990 amendment, and the JCC should not have applied this phrase to the instant case. As to the period of time Mr. Meek was temporarily disabled after the subsequent accident, March 21, 1990 through November 27, 1990, section 440.15(5)(c), Florida Statutes (Supp....

...wages, or other remuneration because he is temporarily and totally disabled." Id. at 492 (e.s.). We reverse the JCC's finding that the wage loss benefits during this time period should be based on the average weekly wage for the subsequent accident. Section 440.15(5)(d), Florida Statutes (Supp....

...City of West Palm Beach, 442 So.2d 273 (Fla. 1st DCA 1983). REVERSED and REMANDED with directions. SMITH and WEBSTER, JJ., concur. NOTES [1] In June 1991, Mr. Meek and the E/C from the subsequent accident entered into a lump sum settlement through which Mr. Meek received $35,250.00 [2] Section 440.15(5)(c) and (d), Florida Statutes (Supp....

...eed the maximum compensation rate in effect for permanent disability at the time of the subsequent injury. Any reduction in wage-loss benefits due to such limitation shall be applied first to the benefits payable as a result of the prior injury. [3] Section 440.15(5)(c) and (d), Florida Statutes (Supp....

...If the evidence shows that a claimant is able to work or working, the deputy commissioner must determine the "salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improvement... ." This amount "shall in no case be less than the sum actually being earned by the employee... ." Section 440.15(3)(b), Florida Statutes (1981)....

...Santry of Field, Granger, Santry & Mitchell, P.A., Tallahassee, for appellants. P. Kevin Davey of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. The principal contention on this appeal by the employer and carrier is that chapter 82-237, Laws of Fla., section 440.15(3)(a)1, Fla....

...airment of the body as a whole. The statute in effect when Cook was injured provided that for "loss of 80 percent or more of vision, after correction," a claimant should receive, in addition to benefits for temporary disability and any wage-loss, secs. 440.15(2), (3)(b), Fla. Stat. (1981), permanent impairment benefits of $50 for each percent of bodily impairment through 50 percent and $100 for each percent of bodily impairment above 50 percent. Sec. 440.15(3)(a)1....

...The 1982 amendment raised the benefits to $250 for each percentile of impairment up to ten and $500 for each percentile above. Claimant reads the text and legislative history of chapter 82-237 against a background of assumed legislative concern over litigation then pending in this court affecting the constitutionality of section 440.15(3)(a)1 as enacted in 1979....

...pose. Nothing in the body of the act suggests *1021 retroactivity, and as will be seen some things suggest the contrary. The "whereas" clauses are: WHEREAS, the right to impairment benefits for loss of vision has been disputed since the enactment of s. 440.15(3)(a)1....

...1983), citing Seddon v. Harpster, 403 So.2d 409 (Fla. 1981). We therefore require "clear legislative intent" of a retroactive purpose. The "whereases" themselves, we think quite obviously, may be construed as referring to a "dispute" over whether existing 440.15(3)(a)1 requires, for permanent eye-loss impairment benefits, "loss of 80 percent or more of vision" in one eye or both eyes; and as expressing as the purpose already in place, not a "substantive change," that of paying for such a loss in one eye....

...nd that the Senate, whose bill was the vehicle for that amendment in the House, should have concurred unanimously and without debate. The "whereases" refer only to eye injuries, but if the "whereases" retroactively increase the benefits awardable by section 440.15(3)(a)1 for eye injuries, the new text must also be read as retroactively increasing the benefits awardable for amputations and head or face disfigurement....

...The deputy erred in declaring an attorney's fee due Cook, based on a partial controversion of certain claimed benefits. There is no finding of bad faith and the carrier did not contest compensability. Secs. 440.34(3)(b) & (c). The award of permanent impairment benefits exceeding those allowable under *1023 section 440.15(3)(a)1, Fla....

...Here it was error to hold that the claimant's unilateral mistake authorized a redetermination of his average weekly wage. As for the judge's finding that the modification was not prejudicial to the employer/carrier because it had only the effect of providing a higher average weekly wage for purposes of offset under Section 440.15(10)(a), Florida Statutes, [1] and that the same result could be accomplished by the claimant's invocation of the protective provisions of 42 U.S.C....

...djudication. REVERSED. ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur. NOTES [1] The judge found no immediate benefit to the claimant because his social security benefits had been temporarily suspended. [2] Under the offset statute (Section 440.15(10)(a), Florida Statutes), the injured worker's benefits cannot be reduced to a greater extent than they would have been reduced under 42 U.S.C....

...Sicking of Kaplan, Dorsey, Sicking & Hessen, Miami, for Fla. Academy of Trial Lawyers, amicus curiae. John McQuigg, Tampa, for amicus curiae. ENGLAND, Justice. We have before us for review an order of the Industrial Relations Commission which held with respect to so-called "scheduled injuries" under Section 440.15(3), Florida Statutes (1975), that disability benefits awarded for a partial loss of limb must be determined by reference to "the occupational impact of the injury upon the scheduled member......

...We conclude from that evidence that the claimant reached maximum medical improvement on December 16, 1976, and is entitled to temporary total disability benefits up to and including that date in addition to any temporary benefits he might be entitled to under § 440.15(2)(b)....

...not furnished wage-loss forms until he received a "BCL form 4" dated December 29, 1985, and appellees make no contention to the contrary in their brief. An employee is required to make an adequate job search to recover wage loss benefits pursuant to section 440.15, Florida Statutes (1981), but an employee "is excused from a job search if the employer fails to inform the employee of his rights and responsibilities under the Act." Coq v....

...the light duty restrictions, and the record contains no offer of alternative employment within those restrictions. Because the record does not show that claimant refused employment commensurate with his abilities or suitable to his capacity, neither section 440.15(3)(b)2 nor section 440.15(6) precludes him from receiving wage loss benefits....

...Debi Thorkelson appeals the final order denying temporary partial disability benefits she sought on account of disability attributable to an industrial accident that took place on August 26, 2004. She argues the judge of compensation claims erred in disqualifying her, pursuant to section 440.15(4)(e), Florida Statutes (2004), based on the fact that, after the injury, her employer discharged her for misconduct....

...s not disqualified from workers' compensation benefits just because she "was terminated . . . for cause." But the judge of compensation claims ultimately determined that Ms. Thorkelson was terminated for misconduct, and not for any other reason. See § 440.15(4)(e), Fla....

...ng medical testimony that she was temporarily, partially medically incapacitated as a result, the judge of compensation claims determined that Ms. Thorkelson was disqualified from receiving temporary partial disability benefits, because "pursuant to Section 440.15(4)(e) ....

..."Workers' compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction." Sunshine Towing, Inc. v. Fonseca, *544 933 So.2d 594, 594 (Fla. 1st DCA 2006). The Legislature added language, effective October 1, 2003, so that section 440.15(4)(e) of the Workers' Compensation Law provided on the date of her accident (as it still provides): (4) Temporary Partial Disability.— . . . . (e). . . . If the employee is terminated from postinjury employment based on the employee's misconduct, temporary partial disability benefits are not payable as provided for in this section. . . . § 440.15(4)(e), Fla. Stat. (2004) (typeface altered). See Ch.2003-412, § 18, at 3925, 3969, Laws of Fla. (adding the language quoted above to section 440.15(4)(e))....

...Here the evidence also showed that she willfully and repeatedly acted in her own perceived interest in disregard of her employer's express directives. In sum, the judge of compensation claims did not err in determining that Ms. Thorkelson was terminated for misconduct, within the meaning of section 440.15(4)(e) as construed in light of relevant case law, including the unemployment compensation cases, or in denying on that account temporary partial disability benefits, penalties, interest, costs and fees....

...Anderson, of Anderson & Spangler and Stephen J. Wein, St. Petersburg, for appellants. Kurt Preston Hampp, of Jacobs, Robbins & Gaynor, St. Petersburg, for appellee. WENTWORTH, Judge. The appellant/employer appeals a workers' compensation order entered March 19, 1979, construing § 440.15(10)(a), Fla....

...paragraph 423, and paragraph 402, does not exceed 80% of the employee's average weekly wage. However, this provision shall not operate to reduce an injured worker's benefits under this chapter to a greater extent than they would have otherwise been reduced under 42 U.S.C. paragraph 424(a). Section 440.15(10)(a), Fla....

...The order appealed in this case properly finds in this respect: 2. The eighty percent ceiling on compensation benefits has been held to be constitutional in Florida in Thomas v. City of Vero Beach, DLS 4-3555 (1978). 3. It has further been held that the five percent annual increment or supplement under F.S. 440.15(1)(e) may not exceed the eighty percent limitation contained in F.S. 440.15(10), Department of Commerce v....

cases are to be decided on their merits. See § 440.015, Fla. Stat. (2013) (“It is the specific intent

...440.02(34)(b). [5] While the record contains expert testimony "that the use of a prosthetic device may increase Claimant's ability and capacity for work," a prosthesis will not change the fact that the claimant suffered a catastrophic injury. Under section 440.15(1)(b), a claimant with a catastrophic injury, in the absence of conclusive proof of a substantial earning capacity, is presumed to be PTD from the date of the accident. [6] No conclusive proof of the claimant's substantial earning capacity has been presented to the JCC, and he is presumed to be PTD until such proof is presented. We note that section 440.15(1)(e) authorizes the E/C to conduct rehabilitation evaluations even after the claimant has been accepted or adjudicated as entitled to PTD compensation....

...The final order is AFFIRMED in part and REVERSED in part. The case is REMANDED to the JCC for correction of the order consistent with this opinion, and for determination of the claimant's entitlement to PTD benefits under the "catastrophic injury" provisions of section 440.15, Florida Statutes....

...It seems to us that the deputy used the deemed earnings concept as a method to apportion claimant's wage loss between Atkins and the noncompensable automobile accident. The parties, however, are unable to agree on what is meant by this portion of the deputy's order. In any case, the deemed earnings provision of section 440.15(3)(b)2, Florida Statutes (1985), is not applicable unless the deputy finds that claimant voluntarily limited his income or failed to accept employment commensurate with his abilities. § 440.15(3)(b)2, Fla....

...out of and in the course of his employment by St. Johns River Shipbuilding Company, and that as a result of said injury he was temporarily totally disabled for a period of 50 1/6 weeks. 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....

...“After finding that the Claimant was temporarily totally disabled for 50 1/6 weeks and thereafter permanently partially disabled to the extent of 5% of the use of his left leg or foot, the deputy commissioner, evidently seeking to apply to these facts the provisions of sub-sections (2) and (3) of Section 440.15, Florida Statutes 1941, and especially of sub-paragraph (u) of sub-section (3) of said Section, held that the claimant was entitled to compensation for his temporary total disability at the rate of $18.00 a week for 20 weeks only, or $...

...y partially disabled and that he is entitled to compensation therefor at the rate of 60% of the difference between his average weekly wages before his injury and his wage earning capacity since December 13, 1943, in accordance with subsection (4) of Section 440.15, Florida Statutes of 1941....

..., 1943, he has been permanently partially disabled to the extent of 5% of the total use of his leg and not temporarily partially disabled as found by the full commission. This being so he .is entitled to further compensation under sub-section (3) of Section 440.15, Florida Statutes of 1941, which deals with permanent partial disability find provides that in case of disability partial in character but permanent in quality the compensation shall, in addition to that provided by sub-section (2) of said Section 440.15, (under which the claimant here was entitled to and did receive compensation for 50 1/6 weeks for temporary total disability) be 60% of the average weekly wages for, in case of a leg lost, sub-paragraph (b), 175 weeks. “Said sub-section (3) of Section 440.15 further provides, sub-paragraph (s), that compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. The evidence here shows that the permanent partial disability in the use of claimant’s leg is 5% of the total. “Said sub-section (3) of Section 440.15 further provides, sub-paragraph (u), that ‘In case of temporary total disability and permanent partial disability both resulting from the same injury, which said injury is one listed in the preceding paragraph (a) through (s), inclus...

...hall be paid 60 per centum of his average weekly wage as compensation in addition to that set forth in said paragraphs (a) through (s) inclusive for a period not to exceed 20 weeks.’ “This sub-paragraph (u) was inserted in said subsection (3) of Section 440.15, by amendment, Chapter 20672, Laws of Florida, Acts of 1941....

...injustice may result. Suppose, for instance, the employee here, Wells, at the end of his temporary total disability, December 13, 1943, had been entirely recovered from his injury, then he would doubtless be entitled under said sub-paragraph (2) of Section 440.15 to 50 1/6 weeks compensation at $18.00 a week, or $903.00. But Wells, unfortunately for him, was not entirely recovered on December 13, 1943, but was partially disabled permanently and, under the construction placed on said sub-sections (2) and (3) of Section 440.15 by the deputy commissioner and contended for by the carrier, he was entitled to compensation for his temporary total disability for only 20 weeks at the rate of $18.00 per week, or $360.00, and for his 5% permanent partial disability f...

...The question involved is well stated by appellants as follows: “In a case where temporary total disability and permanent partial disability both result from an injury to the foot or leg, said injury being one listed under paragraphs (a) to (s) inclusive, of paragraphs 3 of Section 440.15, Florida Workmen’s Compensation Act, and where the injured person has been paid for 50 1 /6 weeks as temporary total disability, and the permanent partial disability at the end of said 50 1/6 weeks is found to be not in excess of 5%,...

...uch facts entitled to an award for any additional money?” Appellants say that this question should be answered in the negative. Their argument' is based mainly upon their construction of the meaning and effect of paragraph (u) of sub section 3, of Section 440.15 Florida Statutes 1941 (placed in the statute by Chapter 20672, Acts of 1941), in the light of two preceding decisions of this Court....

...ntended to modify the prior law, as construed by this Court, to the end that, when the injury was within the orbit of this. amendment, an injured person would, in the discretion of the Commission, be entitled to compensation under sub-section (2) of Section 440.15 for only twenty weeks (which is assumed to be the usual healing period) in addition to his statutory compensation under subsection (3), which, in claimant’s case, permanent partial disability of leg to the extent of five per centum,...

...behalf the entire act was adopted, in a worse condition than they were before the amendment was adopted, as is so graphically shown by the opinion of the learned circuit judge. Surely this was not the intention of the Legislature. 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...

...for temporary total disability up to- December 14, 1943. From that time on, under the evidence, he was entitled to compensation, on the basis of a permanent partial disability of five percent, for 175 weeks, under paragraph (b) of subsection (3) of Section 440.15, and, “in addition thereto,” for twenty additional weeks under said paragraph (u) of the same sub-section, making a total of 195 weeks, payable weekly, amounting to $175.50 for the 195 weeks....

...Lancaster, Sarasota, for appellee. McCORD, Judge. The employer/carrier appeal from a workers' compensation order awarding wage-loss benefits to the claimant. Since this injury occurred on August 2, 1979, this appeal is governed by the provisions of Section 440.15(3)(b), Florida Statutes (1979)....

...entitled to recover wage-loss benefits together with penalties and interest from the date of maximum medical improvement and continuing with a credit for all benefits unpaid." This appeal ensued. Examining these facts on a month-to-month basis, as we must, [§ 440.15(3)(b)1, Fla....

...of time in which she worked as a CETA secretary and a nurse's aide, respectively. As both these jobs were clearly within her prescribed physical limitation, we can only conclude that she has accepted "employment commensurate with... her abilities" [§ 440.15(3)(b)2] and, therefore, that her claimed wage loss during those two periods of time is the result of her compensable injury....

...indicates that she quit work in order to care for her convalescing husband who was recovering from a heart attack. Thus, they argue, she has not established "... that any wage loss claimed (for that period) is the result of the compensable injury." § 440.15(3)(b)2, Fla....

...es and words, must be considered in determining legislative intent, and effect must be given to every part of the provision under construction and every part of the statute as a whole. See State v. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977). Section 440.15(3)(b)2 provides: The amount determined to be the set salary, wages, and other remuneration 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, including earnings from the sheltered employment....

...wage. As the Workers' Compensation Act is remedial legislation and is intended to be liberally construed in such a manner as to effectuate the purpose for which it was enacted, [ Gillespie v. Anderson, 123 So.2d 458 (Fla. 1960)] our construction of Section 440.15(3)(b)2 is consistent with the legislative intent underlying wage loss, which is that a worker be compensated for his actual, demonstrable loss....

...ed a demonstrable wage loss for these two months and that the wage loss was the result of her compensable injury. As noted previously, in January of 1981, the claimant suffered yet another disabling injury from which she had not yet recovered. Under Section 440.15(5)(c) and (d), Florida Statutes (1979), an employee is entitled to both wage-loss benefits and temporary total disability benefits if she suffers an accident causing temporary total disability while she is still receiving benefits from the previous accident....

...The E/C have been paying wage-loss benefits to claimant since April 4, 1985, the date on which claimant reached maximum medical improvement. In addition, claimant had been receiving social security disability benefits, so, as of May 1, 1985, the E/C took advantage of the social security offset provision in section 440.15(9)(a), Florida Statutes (1985), thereby reducing claimant's monthly wage-loss benefits. At the claim hearing, claimant contested the E/C's taking the offset. In her ensuing order, the deputy held, inter alia, that, "taking into consideration Sections 440.15(9)(a) [440.15(10)(a)] and 440.15(3)(b)(4)," there is no authority for offsetting social security disability benefits from wage-loss benefits. Accordingly, the E/C were ordered to pay claimant the amount of the offset taken. Section 440.15(9)(a) provides: (a) Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...ch the injured worker reaches the age of 62 years. [Emphasis supplied.] Thus, by the statute's terms, the offset is keyed to weekly compensation benefits. As claimant argues, wage-loss benefits are paid monthly, based on an average monthly wage. See section 440.15(3)(b)1., Fla....

...Although the E/C argue that wage loss in truth contemplates a claimant's weekly earnings and is paid monthly for convenience only, and is in fact the "periodic benefits for a total or partial disability" as contemplated in the Federal offset provision, 42 U.S.C. § 424a, [1] we decline to interpret *702 the term "weekly" in section 440.15(9)(a) as meaning anything other than weekly....

...), and (8) any increase in such benefits with respect to such individual and such persons, before reduction under this section, which is made effective for months after the first month for which reduction under this section is made. [2] In contrast, section 440.15(3)(b)4 specifically addresses wage-loss benefits by providing an offset for social security retirement benefits....

...pon the basis of this finding the Deputy Commissioner determined that claimant suffered a permanent partial disability of 10% of the body as a whole. We find no basis in the record upon which to sustain the award. There was no scheduled injury under Section 440.15(3)(m) or (s), Florida Statutes, since there is no testimony or finding of a permanent hearing loss resulting from the ear infection. Furthermore, these infections have been successfully treated and cured, so that it cannot be contended that claimant is suffering from an "occupational disease," under Section 440.151, Florida Statutes....

...xperts, and give greater weight to lay testimony, or demonstrative evidence. We simply hold that, under the circumstances presented here, the mere inability to further engage in diving activities is not a "physical impairment" as the term is used in Section 440.15(3)(u), Florida Statutes....

...aired ability to resist water-borne infection in his ears. I would therefore affirm the award of 10% permanent partial disability compensation, even assuming that ordinary physical impairment standards apply to disablement from occupational disease. § 440.151(3), Florida Statutes....

...award below both of permanent total disability (PTD) benefits and of an authorized primary care physician for appellee's benefit. We affirm and address briefly the issue concerning PTD. The parties agree that the standard for PTD is that set out in section 440.15(1)(b), Florida Statutes (1995): Only a catastrophic injury as defined in s....

...of the federal Social Security Act ...." § 440.02(34)(f), Fla. Stat. (1995). The E/C do not seriously challenge the JCC's finding that claimant suffered a catastrophic injury, as required by the Workers' Compensation Act. Nevertheless, the E/C argue, with reference to section 440.15(1)(b), that claimant has not met her burden of proving entitlement to PTD benefits because she has not demonstrated, in the language of the statute, "absence of conclusive proof of a substantial earning capacity." The E/C's argument is based upon an incorrect assumption concerning the burden of proof. As claimant points out, the language of section 440.15(1)(b), "in the absence of conclusive proof of a substantial earning capacity," was intended by the Legislature to create an affirmative defense to the E/C's liability for PTD....

...*901 Bernard J. Zimmerman of Akerman, Senterfitt & Eidson, Orlando, for appellant. Thomas Cassidy of Stanley, Wines & Smith, Lakeland, for appellee. PER CURIAM. The self-insured employer appeals a workers' compensation order, contesting the award of § 440.15(3)(b), wage-loss benefits....

...We conclude that the deputy commissioner did not err in awarding such benefits, and we affirm the order appealed. The employer asserts that the deputy erred by predicating the wage-loss award on a disability rating not explicitly stated to be in conformity with the AMA Guides to the Evaluation of Permanent Impairment (1977). Section 440.15(3)(a)3, Florida Statutes, provides that the AMA Guides shall serve as a temporary schedule for determining the existence and degree of permanent impairment....

...1st DCA 1981), with Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981). As in Snead, the award in the present case is not dependent on a specific degree of impairment; wage-loss benefits are awardable upon the existence of " any permanent impairment" [e.s.]. See § 440.15(3)(b)1....

...pensation and retirement disability benefits payable to public employees. Sec. 440.09(4), F.S. 1971; 1973 Op.Att'y Gen. 104, no. 073-62. The law prohibiting duplicate benefits was repealed three years later by ch. 73-127, § 2, Fla.Laws. But compare § 440.15(10), F.S....

...There is competent substantial evidence to support the deputy's finding that the claimant sustained a compensable accident on January 7, 1980 and this finding is affirmed. The deputy's finding that the claimant was PTD is not supported by competent substantial evidence. Section 440.15(1)(b), *1056 Fla....

...ses in support of his argument that the finding of PTD was proper. However, these cases are inapplicable herein because not a single one involved an accident occurring on or after August 1, 1979, the effective date of the very substantial changes to § 440.15(1) which apply to this post-August 1, 1979 accident....

...edical evidence, nor the deputy's observations, are competent substantial evidence to support a finding of PTD. In Regency Inn v. Johnson, 422 So.2d 870, 873 (Fla. 1st DCA 1982), this court pointed out the distinction between the language in the PTD Section 440.15(1)(b) and permanent impairment and wage loss benefit Section 440.15(3) saying: We also note that the statutory language on wage loss, supra, stands in contrast to that which governs a claimant's burden in establishing permanent total disability, i.e., "the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations, " and no compensation of that character shall be payable "if the employee ... is physically capable of ... gainful employment." (emphasis supplied by court) The court went on to hold that the language in § 440.15(3) was less restrictive and would permit payment of wage loss benefits resulting from economic incapacity caused by job disruption as well as physical incapacity whereas the PTD is restricted to disability resulting from physical incapacity....

...I concur in Judge Thompson's opinion. In my view, the deputy's order and Judge Ervin's dissent do not give sufficient recognition to the substantial changes in the criteria for permanent total disability fashioned by the 1979 legislative amendments to Section 440.15(1)....

...The majority appears to take issue, not with the sufficiency of claimant's work search, but only with the sufficiency of the evidence to support the deputy's finding that claimant is entitled to compensation for permanent and total disability under the criteria set forth in Section 440.15(1)(b), Florida Statutes (1979)....

...ng, would be of considerable weight, were there a fragment of evidence authenticating claimant's total impairment, ... ." Hillsborough Community College v. Marie Miller, 440 So.2d 26 (Fla. 1st DCA 1983) (e.s.). The majority's novel interpretation of section 440.15(1)(b) now requires nothing less than medical evidence demonstrating physical incapacity....

...al disability (TTD) benefits. We reverse. Chancey suffered a compensable injury on 29 January 1980. There were several *1141 periods of TTD, during which he received his full wages rather than two-thirds of his average weekly wages as required under Section 440.15(2), Florida Statutes (1979)....

...jor contributing cause of the disability." § 440.09(1)(b), Fla. Stat. (1999). Under the Act in force at the time of the 1999 accident, therefore, the 1999 (first) employer and its insurance carrier are responsible for payment of these benefits. See § 440.15(5)(a), Fla....

...or treatment. Major contributing cause must be demonstrated by medical evidence only. Ch. 2003-412 § 6 at 3876, Laws of Fla. [2] The claimant also argues that, notwithstanding section 440.09(1), Florida Statutes (2003), under sections 440.02(1) and 440.15(5)(a), Florida Statutes (2003), where a claimant has a preexisting condition, whether from a prior compensable accident or an idiopathic condition, the claimant has sustained a compensable accident if the accident has aggravated the preexisting condition....

prompt and cost-effective delivery of payments." § 440.015, Fla. Stat. (1997). Based upon the foregoing analysis

...nsation act in Goldsmith I, and that apportionment is limited to "death benefits" and "permanent impairment." "Permanent impairment" is specifically defined in the act and is clearly associated with the benefits payable for certain impairments under section 440.15(3), Florida Statutes....

...In June or July 1980 (the exact date is in dispute in the record) the appellants suspended payment of benefits on the ground that appellee was working. Appellee filed a claim for resumption of benefits, and appellants defended the claim contending they are entitled to an offset under § 440.15(1)(d), Fla....

...rise above his crippling handicaps. Larson, Workmen's Compensation Law, Vol. II, Section 57.51, pages 10-164.24, 10-164.49. Also compare Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960). We consider now the question of whether or not Section 440.15(1)(d), Florida Statutes (1975), requires an off-set of appellee's wages against his permanent total disability benefits. As previously stated, appellee's accident occurred in 1958, and he was found permanently partially disabled by the deputy commissioner. Section 440.15(1)(d), Florida Statutes (1959), was enacted approximately one year after appellee's injury but several years before appellee was adjudicated permanently totally disabled....

...Also, the off-set is self-executing, just as a social security off-set and an unemployment compensation off-set are self-executing. See Florida Power & Light Co. v. Adkins, 377 So.2d 57 (Fla. 1st DCA 1979), and Borden, Inc. v. Butler, 377 So.2d 795 (Fla. 1st DCA 1979). Section 440.15(1)(d) was amended in 1979, effective August 1, 1979, but under neither the original law nor the amendment is appellee presently entitled to workers' compensation benefits because he is now earning more than his average weekly wage at the time of his injury....

...Jugo of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & Zientz, Miami, for appellant. Jennifer J. Jones of Stephens, Schwartz, Lynn & Chernay, Miami, for appellees. PER CURIAM. Appellant challenges the judge of industrial claims' denial of his claim for catastrophic loss benefits pursuant to Section 440.15(2)(c), Florida Statutes (1977)....

...Appellant was able to walk without a walker for brief periods beginning in April 1978. Until then, appellant had been housebound. He could not work during the six-month period following his injury, and in August 1978 he had surgery to decompress the nerve that controlled use of his legs. Appellant filed a claim under Section 440.15(2)(c), but the judge of industrial claims ruled that because appellant could walk without a walker in April 1978, and because he "did not suffer a total loss of use necessitating training or education in the use of artificial members o...

...pliances under a rehabilitation program," appellant was not entitled to catastrophic loss benefits. Appellant contends that because his inability to work for six months after the accident was caused by damage to his nervous system, he should receive Section 440.15(2)(c) benefits....

...Employer/carrier appeal a workers' compensation order by which claimant was awarded wage loss benefits. While claimant's monthly work searches varied in intensity, and were marginal at times, the evidence as a whole is sufficient to meet the burden imposed by section 440.15(3)(b)2, Florida Statutes (1987), as delineated in City of Clermont v....

...ty and context as well as number of job contacts, in each case. See e.g., Paramount Poultry v. Mims, 472 So.2d 1281 (Fla. 1st DCA 1985); Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), opin. on reh. en banc. Nor does the 1990 amendment to section 440.15(3)(b)2, by chapter 90-201, Laws of Florida (1990), which prescribes a minimum of five job contacts in each bi-weekly period during a work search, alter the result in this case....

...age loss benefits, and, accordingly, it is not necessary for a wage loss claimant to present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions. 422 So.2d at 879. Regency Inn interpreted § 440.15(3)(b)2., Fla....

...rment which had lasting, residual effect. [1] This fact alone, under Citrus Central and the majority's opinion, is not sufficient evidence enabling the employee to meet his burden "that any wage loss claimed is the result of the compensable injury." § 440.15(3)(b)2, Fla....

...I have additional reservations about the effect of the majority's opinion which is susceptible to the interpretation of precluding all compensation for wage-loss at any time in the future without regard to a change in circumstances. Entitlement to wage-loss, of course, must be determined on a monthly basis. See Section 440.15(3)(b), Florida Statutes (1981)....

...r its residuals contributes to the unsuccessful ensuing job search. Stated more simply, our decision, like that in Citrus, rests on the basic statutory requirement that wage-loss claimed for any month shall be "the result of the compensable injury." § 440.15(4)(b), Fla....

...Code Rules 38F-3.20 and 38F-3.22 both provide that if the injured employee willfully fails or refuses to furnish the form requested within 21 days from the date of demand, payment of workers' compensation benefits for disability or supplemental compensation prescribed by § 440.15(1)(e), Fla....

...shall cease until such time as the employee furnishes the signed LES Form BCL-14 or LES Form BCL-20. Moreover, Fla. Admin. Code Rule 38F-3.22 relating to requests for unemployment compensation information provides that payment of benefits under the act for total disability or supplemental compensation pursuant to § 440.15(1)(e), Fla....

...uesting the form. This indicates that at least that rule, if not both rules, is applicable to requests for social security information and unemployment compensation information only where the claimant has sustained a total disability as set forth in § 440.15(1) and not to claims for wage loss benefits under § 440.15(3)....

...lity can be made. Richardson v. City of Tampa, 175 So.2d 43, 44 (Fla. 1965); Carson v. Gaineswood Condominiums, 532 So.2d 28, 32 (Fla. 1st DCA 1988). Rather, the test is whether the claimant is unable to do even light work on an uninterrupted basis. § 440.15(1)(b), Fla....

...Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees. SHIVERS, Judge. John appeals a deputy commissioner's order which granted a claim for wage-loss benefits but denied benefits for permanent physical impairment for the loss of sight in one eye under Section 440.15(3)(a), Fla....

...was unable to work until January 15, 1981. Accordingly, the deputy awarded wage-loss benefits for the period between October 9, 1980, and January 15, 1981. The deputy, however, found no permanent impairment benefits were due under the provisions of Section 440.15(3)(a). Section 440.15(3)(a)1....

...The challenged order demonstrates the deputy interpreted the statute to allow benefits only where a compensable accident resulted in 80 percent or more loss of vision considering both eyes. In Mahoney v. Sears, Roebuck & Co., 419 So.2d 754. (Fla. 1st DCA 1982), we construed section 440.15(3)(a)1., Fla....

...1980) to permit recovery for the loss of 80 percent or more of the vision in one eye. This interpretation is consistent with the rules requiring liberal construction of the workers' compensation provisions. Appellant also asserts numerous constitutional challenges asserting, among other points, that the new wage-loss system, section 440.15(3)(b), Fla....

...ling claims. Although we note the benefits under the new wage-loss provisions may result in reduced benefits, the right to recover for industrial injuries has not been so reduced as to be effectively eliminated. Accordingly, we are compelled to hold section 440.15(3)(b) constitutional....

...This testimony was not contradicted by any other evidence presented to the deputy commissioner. On appeal, employer/carrier contend that the deputy erred in awarding wage loss benefits since the claimant's permanent partial disability was not determined in conformity with section 440.15(3), Fla....

...no medical evidence supporting an inability to work and claimant failed to make any work search during this period of time. Finally, appellant contends that the deputy commissioner erred in requiring the employer to pay the costs of the proceedings. Section 440.15(3), Fla....

...d upon other generally accepted medical standards. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982). Although we affirm the deputy's finding of permanent impairment, we are compelled to reverse in part the award of wage loss benefits. Section 440.15(3)(b), Fla....

...s average monthly wage before the compensable accident and the salary claimant is able to earn after reaching maximum medical improvement. The burden is on the employee to establish that any wage loss claimed is the result of the compensable injury. Section 440.15(3)(b)(2), Fla....

...440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability. Only claimants with catastrophic injuries are eligible for permanent total benefits. In no other case may permanent total disability be awarded." Fla. Stats. § 440.15(b)(1994)(emphasis added). Turning to § 440.02(37)(f), applicable for purposes of this appeal, "Catastrophic injury" means "[a]ny other injury that would otherwise qualify under this chapter of a nature and...

...The Deputy Commissioner and the Full Commission denied petitioner compensation for 700 weeks, holding in effect that he, having lost the sight of one eye in another employment was thus only partially disabled as a result of his current employment. Hence this application for review. Section 440.15, subsection (1) (b) provides that a loss of both eyes shall constitute permanent total disability and shall be compensable for not to exceed 700 weeks. Section 440.15, subsection (5) (c) provides: "(c) If any employee had a permanent disability not occasioned by an injury resulting from an accident while in the employ of same employer in whose employ he received a subsequent *847 permanent injury, the amount of compensation shall be fixed as follows: "1. If the permanent injury is one that is classified under subsection (3) of § 440.15, and to the same member and in the same degree, the compensation shall be sixty per cent of the employee's average weekly wage to be paid only during the time he is incapacitated from work on account of said injury but not to exceed the period of time specified in subsection (3) of § 440.15 for the permanent disability." Section 440.15, subsection (3) (e) provides that in case of disability, partial in character but permanent in quality, the compensation, in addition to that provided by subsection (2) of this section, shall be sixty per cent of the average weekly wag...

...od. On May 4, 1987, after receiving a rehabilitation report opining that it was unlikely that Marvin could be returned to work, the employer/carrier administratively accepted him as PTD and commenced paying the 5% supplemental benefit as provided by Section 440.15(1)(e)1, Florida Statutes (1985)....

...abilitation efforts had failed before commencing supplemental benefits. The commencement of supplemental benefits as of May 4, 1987 was thereupon approved. The JCC distinguished Winter Garden, in that no rehabilitation efforts were involved therein. Section 440.15(1)(e)1, Florida Statutes (1985) provides that "[i]n case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955 ......

...established. Accord Winter Garden Citrus v. Parrish, 438 So.2d 472 (Fla. 1st DCA 1983) See also Grafton v. Sacred Heart Hospital, 504 So.2d 537, 539 n. 2 (Fla. 1st DCA 1987). However, the rule as established in Winter Garden must be read in light of Section 440.15(1)(b), Florida Statutes (1985), providing *316 that PTD is not "payable [in case of disability adjudged to be permanent] ......

...in and of itself, synonymous with PTD in the absence of additional facts such as an obviously incapacitating injury or concurrent medical opinion of PTD, and, without permanent total disability, there is no eligibility for supplemental benefits. See Section 440.15(1)(e)1, Florida Statutes....

reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (2000). See also Turner v. PCR, Inc

...s prior to his May 26, 1981 maximum medical improvement date and in denying permanent benefits on grounds the treating psychiatrist's testimony was not based on the American Medical Association's Guides to the Evaluation of Permanent Impairment. See Section 440.15(3)(a)(3), Florida Statutes....

...Citing this court's opinion in Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981), the deputy further denied all permanent total impairment and wage loss benefits because no ratable anatomical impairment had been assigned pursuant to the AMA tables as required by Section 440.15(3)(a)(3), Florida Statutes....

...Mike Gordon's Seafood Restaurant, 408 So.2d 808 (Fla. 1st DCA 1982). The employer/carrier also urges affirmance of the order below on grounds "physical" as opposed to merely "psychiatric" impairment is essential for an award of permanent total disability pursuant to Section 440.15(1)(b), Florida Statutes....

...WENTWORTH, J., specially concurs with written opinion. WENTWORTH, Judge, concurring. I agree with the disposition of the appeal by the majority except on a minor point with respect to the medical evidentiary issue. I think the obligation of this court and the deputy under § 440.15(3)(b)(1), Florida Statutes, is simply to determine "from the record that the claimant's ......

...1st DCA 1982), recognizing that the statutory prescription is mandatory in requiring use of the schedule in the compensation process but analogizing their function to that of administrative "standards of value to be used by tax assessors;" and stating: Although the provisions of § 440.15(3)(a)3 are not unconstitutional per se, they could be unconstitutional in their application if this section were interpreted to mean that there could be no permanent impairment unless a medical doctor testified from the AMA Guides as to certain percentage of permanent impairment set forth therein....

...Leila Fawaz appeals the denial of her claims for workers' compensation benefits, which was based in part on the defense set out in Martin Co. v. Carpenter, 132 So.2d 400 (Fla. 1961). [1] She asserts the judge of compensation claims (JCC) erred in applying *494 this defense and the misrepresentation provision of Section 440.15(5)(a), Florida Statutes (Supp....

...Carpenter , and ruled that claimant had misrepresented her medical history on her employment application and that the employer had relied upon her misrepresentations to its detriment. In addition, the JCC decided that the employer/servicing agent (E/SA) had established the elements of misrepresentation under Section 440.15(5)(a), Florida Statutes (Supp....

...Bartlett Brothers Roofing, 437 So.2d 758 (Fla. 1st DCA 1983), wherein the employer and employee stipulated that the employee was entitled to three months' catastrophic-loss benefits, notwithstanding the employer's lack of certainty concerning whether the catastrophic-loss statute, Section 440.15(2)(b), Florida Statutes (1979), legally authorized the payment of such benefits for the employee's type of injury, because of the ambiguity of the language that then existed in the statute. Despite the parties' agreement, the deputy commissioner, on his own motion, refused to approve the stipulation in that he determined that the agreement to pay such benefits was based on the parties' erroneous interpretation of section 440.15(2)(b)....

...Kahanovitz and Yaszemski, each opined that claimant's industrial accident had aggravated her preexisting condition. Dr. Kahanovitz testified that claimant was still in an off-work status, and Dr. Yaszemski stated that claimant was totally disabled from all employment. Under section 440.15(5)(a), aggravation of a previous injury is compensable and not subject to apportionment until maximum medical improvement (MMI) is reached....

...Carpenter, 132 So.2d 400, 406 (Fla. 1961). [2] Authorization and reimbursement of Dr. Lapp was one of the matters included in the first joint stipulation. [3] Supra, n. 1. [4] Because the employer was bound by the stipulations, we do not reach the issue of whether section 440.15(5)(a) should be retroactively applied to this case.

...In 1986, Appellant was injured in the course and scope of her employment. In 1994, she was determined to be permanently and totally disabled. The City of Clearwater (hereinafter City) began paying Claimant permanent total disability benefits, as well as permanent total disability supplemental benefits, pursuant to section 440.15(1)(e)(1), Florida Statutes (1985)....

...t purpose. Accordingly, we reverse the JCC's order, but certify the following question: WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)(1), FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? ERVIN and VAN NORTWICK, JJ., concur.

BENTON AND PADOVANO, JJ., concur. NOTES [1] Section 440.015, Florida Statutes (1994 Supp.), provides in

...100% disabled, completely incapable of competing in the open labor market. At issue here is whether the claimant's ability to make daily visits to the small restaurant business he owns jointly with his wife evidences a "wage-earning capacity," under Section 440.15(3)(u), Florida Statutes (1978 Supp.), so as to preclude an award of "permanent total disability," *1365 under Section 440.15(1)....

...ng consulting services which were, according to the deputy, worth approximately $200.00 per week. Nevertheless, in a ruling approved by this court, the deputy found that the claimant was not receiving "actual earnings," therefore no reduction (under Section 440.15(1)(d), Florida Statutes (1977)) was justified.

...The e/c contends that a more exacting burden is placed on a claimant to prove his or her entitlement to PTD benefits than claimant would be required to prove for temporary or other compensation benefits, and cites Burnup & Sims v. Ozment, 440 So.2d 29 (Fla. 1st DCA 1983), in which we observed that Section 440.15(1)(b), Florida Statutes, generally places the burden on the claimant to prove that PTD benefits are due, and that the PTD compensation "statutes permit, if indeed they do not require, a more extensive investigation of a PTD claim than of lesser claims." 440 So.2d at 33 (emphasis supplied)....

...REVERSED and REMANDED with directions. SHIVERS and ZEHMER, JJ., concur. NOTES [1] This was the date of a letter sent to the appellant's attorney by the treating physician, stating that claimant was "very disabled." [2] Pursuant to the interpretation placed upon Section 440.15(1)(e), Florida Statutes, by Parrish, supplemental benefits are not payable until the first day of the calendar year after the date that MMI is established....

...Jerold Feuer, Miami, and John F. Law, Jr., Panama City, for appellee. ALLEN, Judge. The employer/servicing agent appeal a workers' compensation order by which the claimant was awarded wage loss benefits. They contend that the 78 week limitation on wage loss eligibility under section 440.15(3)(b)4.d.(III), Florida Statutes (1991), should have been applied in an uninterrupted consecutive manner so as to preclude the award. On cross-appeal the claimant contends that section 440.15(3)(b)4.d. offends constitutional guarantees of access to the courts, due process, and equal protection. We conclude that the 78 week limitation in section 440.15(3)(b)4.d. was properly applied as a cumulative limit on wage loss eligibility. Section 440.15(3)(b)4....

...ed according to the following schedule: * * * * * * (III) Seventy-eight weeks of eligibility for permanent impairment ratings greater than 6 and up to and including 9 percent. The employer/servicing agent argue that the 78 weeks of eligibility under section 440.15(3)(b)4.d(III) should commence immediately upon the attainment of maximum medical improvement and expire 78 calendar weeks thereafter, without interruption and without regard to whether the claimant was otherwise entitled to wage loss benefits for that entire period of time. In declining to adopt this interpretation of the statute, the judge contrasted the general grant of eligibility in section 440.15(3)(b)4.d with the more specific language in section 440.15(3)(b)4.b and c, which expressly terminates the right to wage loss benefits upon the expiration of a certain number of weeks after maximum medical improvement. Based on this difference in the statutory language, the judge properly applied section 440.15(3)(b)4.d as a cumulative limitation on eligibility which is not confined to an uninterrupted period immediately after maximum medical improvement. The employer/servicing agent's alternative argument that this may be an uninterrupted period commencing when the claimant first seeks wage loss benefits is likewise *1299 without merit, as section 440.15(3)(b)4 contains no language to warrant such a restrictive interpretation. Instead, the eligibility schedule under section 440.15(3)(b)4.d applies only as a cumulative limitation on the total number of weeks for which the claimant may be entitled to wage loss benefits....

...ome. Our recent case of National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984), which also involved a wage-loss claim by a claimant engaged in real estate sales, requires rejection of the E/C's contentions [2] unless the 1983 amendment to § 440.15(3)(b)2 indicates that a different result should be reached. [3] The portion of the statute added by Chapter 83-305, Laws of Florida, is emphasized in the following excerpt from Section 440.15(3)(b)2: Whenever a wage-loss benefit as set forth in subparagraph 1....

...uations involving erratic income are more properly to be addressed to the legislature." Id. at 355, 356. [3] We noted at footnote 1 of National Distillers: "Appellants have not raised, and we do not address, any issue regarding the 1983 amendment to § 440.15(3)(b)2, enacted after the final hearing below."

...that he is not able to uninterruptedly work due to physical limitations, and no PTD benefits shall be payable if claimant is physically capable of gainful employment. National T.V. Rental, Inc. v. Williams, 522 So.2d 909 (Fla. 1st DCA 1988) (citing § 440.15(1)(b), Florida Statutes (1985); Ronald Allen Trucking Co....

...y 22, 1986, plus penalties, permanent total disability benefits from July 23, 1986, and medical bills. Appellants argue several evidentiary issues, and challenge the deputy commissioner's ruling that they were not entitled to the statutory offset of section 440.15(3)(b)4, Florida Statutes, [1] benefits during the period *1000 of temporary disability when wage loss benefits were awarded....

...iliy following maximum medical improvement: I, specifically, reject the Employer/Carrier's argument that an offset be allowed for Social Security Retirement Benefits against the Claimant's temporary partial wage loss benefits. I find that Fla. Stat. Section 440.15(3)(b)4 is inapplicable to temporary partial benefits, since it is specifically listed as an offset provision only under the wage loss section of Fla. Stat. Section 440.15 [applicable to permanent disability benefits]....

...tes an "installment of compensation" for purpose of imposing penalties. [7] In State, Department of Transportation v. Davis, 416 So.2d 1132, 1133 (Fla. 1st DCA 1982), this court held that despite Chapter 440's providing for a social security offset [section 440.15(10), now subsection 440.15(9)], money payable under the social security laws is not "compensation." [8] City of Miami v....

compensation cases, and with the enactment of Section 440.015, Florida Statutes, which abolished the concept

reasonable cost to the employer." Fla. Stat. § 440.015 (Supp. 1994). We also note that the legislature

...Appellant seeks review of a compensation order finding that supplemental worker's compensation benefits received by an injured employee who also receives social security benefits are not subject to the cap of 80 percent of average weekly wage established in section 440.15(10), Florida Statutes (Supp. 1978) [1] Agreeing with appellant that the deputy commissioner erred in this finding, we reverse the order. The deputy commissioner found supplemental benefits payable under section 440.15(1)(e) are not subject to the limitation of the statutory "social security offset." Such benefits were found to be intended by the legislature as a hedge against inflation so that the purchasing power of the employee's benefits would not be reduced over time due to inflation....

...t of living increase to disabled employees. The deputy also noted that supplemental benefits, while called weekly compensation benefits, actually were paid every 28 days, citing Good Housekeeping Gas Co. v. Kitler, 492 So.2d 700 (Fla. 1st DCA 1986). Section 440.15(1)(e), Florida Statutes, awards an "injured employee ......

...shall be reduced" until the employee actually begins receiving social security benefits. (e.s.) [3] The legislature's intent to include supplemental benefits within those benefits subject to the 80 percent cap of the social security offset is clear. Section 440.15(10), Florida Statutes expressly includes supplemental benefits within those benefits subject to the 80 percent limitation in computing the offset....

...This administrative convenience *296 cannot defeat the clear legislative intent. The deputy commissioner's order is REVERSED and the matter REMANDED for entry of an order consistent with this decision. BOOTH and WIGGINTON, JJ., concur. NOTES [1] Now section 440.15(9), Florida Statutes. [2] § 440.15(10), Florida Statutes (Supp. 1978). [3] An employee's failure to authorize the release of information to the e/c or the appellant regarding social security benefits will result in the loss of benefits including supplemental benefits until such authorization is given. § 440.15(10)(c)....

...b market in January 1985, and became employed as a forester at a lesser rate of pay than that he had received in his prior employment, he became eligible for wage loss benefits, since, as of that date, the claimant met the initial burden required in Section 440.15(3), Florida Statutes (1979), of establishing that any wage-loss was the result of the compensable injury....

...We therefore affirm the award of wage-loss from the date claimant obtained employment as a forester on January 6, 1985, through July 31, 1985. Judge Thompson in his dissent suggests that the wage loss award is barred by the statute of limitations in section 440.15(3)(b)3.a....

...THOMPSON, Judge, concurring in part and dissenting in part. I agree that the claimant was not entitled to wage-loss benefits from September 19, 1982 until January 6, 1985. However, I disagree with the majority's conclusion that because claimant had met the initial burden required in § 440.15(3), Fla. Stat. (1979) he became eligible for wage-loss benefits after he became employed as a forester at a lesser rate of pay than he received in his prior employment. Claimant did not become eligible for wage-loss benefits. Section 440.15(3)(b)3.a....

...Bradley Hassell, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants. Edward H. Hurt, Hurt & Parrish, Orlando, and Bill McCabe, Shepherd, McCabe & Cooley, Orlando, for appellee. BOOTH, Judge. The employer/carrier appeal the deputy commissioner's holding that Section 440.15(3)(b)4, Florida Statutes, as amended in 1983, can be retroactively applied to accidents occurring prior to the effective date of the amendment, and awarding wage-loss benefits....

...and wage-loss benefits from April, 1983 to July, 1983. The employer/carrier contended the claimant was not eligible for benefits because, inter alia, he had previously reached age 65. The deputy awarded the wage-loss benefits requested, holding that Section 440.15(3)(b)4, as amended effective June 30, 1983, applied to the claimant even though claimant's accident occurred prior to that statute's effective date....

...age/wage-loss provision, citing Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), and that, since the statutory change was procedural, it could be applied retroactively. On the date of the claimant's compensable accident, Sections 440.15(3)(b)3 d and 4, Florida Statutes (1981), provided, in pertinent part, as follows: "3....

...mount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee's wage-loss benefits." In 1983, the Legislature enacted Chapter 83-305, Section 5, effective June 30, 1983, which deleted Sections 440.15(3)(b)3 d and 440.15(3)(b)4 (quoted above) and replaced them with a new Subsection 4, which provided: If an employee is entitled to both wage-loss benefits and social security retirement benefits under 42 U.S.C....

...For the purposes of termination of wage-loss benefits pursuant to sub-subparagraph 3.a., the term "payable" shall be construed to include payment of social security *1140 retirement benefits in lieu of wage-loss benefits. We hold that the deputy commissioner erred in applying Section 440.15(3)(b)4, Florida Statutes (1983), retroactively, since the amendment is a substantive change in the law....

...loss law, we are convinced that the 1980 amendment was merely a clarification of what was intended by the 1979 version of the age/wage-loss provision... . Unlike Sasso, supra, the amendment at issue in the instant case, which deletes a subsection of Section 440.15(3)(b)3 d, clearly alters the employer/carrier's liability and cannot be characterized as "relatively minor." Under the law at the time of the accident, the right to wage-loss benefits terminated when the employee reached age 65 and was eligible for social security benefits....

...Doney, Palm Beach, for appellees. PER CURIAM. The deputy commissioner's order is supported by competent substantial evidence except as to the award of temporary partial disability benefits. As to such award, the deputy applied the formula under the 1979 version of Section 440.15(4)(a), Florida Statutes. Instead, as appellees concede, the deputy should have relied upon Section 440.15(4), Florida Statutes (1977), the subject accident having occurred on July 31, 1977....

...That issue has not been properly raised as appellees have failed to cross-appeal. See Fla.W.C.R.P. 16(d). The order is AFFIRMED except as to the award of temporary partial disability, and the cause is REMANDED for redetermination of such temporary partial disability benefits by utilizing the provisions of Section 440.15(4), Florida Statutes (1977)....

...ROBERT P. SMITH, Jr., Judge. The self-insured employer and servicing agent appeal a deputy commissioner's order awarding permanent total disability benefits to this 68 year-old worker who apparently is ineligible, due to age, for wage-loss benefits. Sec. 440.15, Fla....

...nable probability that she could be rehabilitated to the extent that she could achieve gainful employment." The deputy thus found that "she has suffered a total loss of wage-earning capacity and is permanently totally disabled" within the meaning of section 440.15(1)(a), Fla....

...BOOTH, Judge, concurring in part and dissenting in part: I agree with the majority that claimant has failed to establish permanent total disability, but must dissent from that portion of the opinion which perpetuates the invidious discrimination based on age alone that arises under Section 440.15, Florida Statutes, as upheld in this court's recent opinion in Sasso v....

...The following numbers are not disputed: average weekly wage (AWW) ................................. $330.55 80% of AWW ............................ $264.44 weekly compensation rate .............. $220.36 (2/3 of AWW) weekly social security benefit ........ $ 45.59 § 440.15(1)(e) supplemental benefit ..................................

...For example, in 1988 Hyatt is entitled to a weekly compensation rate of $185.79 plus $33.06 in supplemental benefits. When Hyatt's $45.59 social security benefit is added, his weekly benefits total $264.44; and because that total does not exceed the AWW, Hyatt will receive the full amount. See section 440.15(9)(a), Florida Statutes (1988)....

...nually. She is entitled to compensation at the rate of 66 2/3 percent of her average weekly wage plus supplemental benefits calculated by multiplying 5 percent of her weekly compensation rate by the number of years from the date of the accident. See § 440.15(1), Fla....

...nefits to $175.84 in 1998. The purpose of supplemental benefits is to allow for increases in the cost of living. See Americana Dutch Hotel v. McWilliams, 733 So.2d 536, 537 (Fla. 1st DCA 1999); Hunt v. Stratton, 677 So.2d 64, 67 (Fla. 1st DCA 1996). Section 440.15(1)(e)1., Florida Statutes (1987), governs the calculation of these benefits....

...of injury. The weekly compensation payable and the additional benefits payable pursuant to this paragraph, when combined, shall not exceed the maximum weekly compensation rate in effect at the time of payment as determined pursuant to s. 440.12(2). § 440.15(1)(e)1., Fla. Stat. (1987) (emphasis supplied). The Legislature has provided a specific statutory cap on benefits, but not the cap appellants urge. Under section 440.15(1), Florida Statutes (1987), after the tenth annual increase in supplemental benefits following an accident, a permanently and totally disabled claimant will receive 150 percent of the initial compensation rate (100 percent of the aver...

...n the cost of living beyond the initial ten years following the accident. See Americana Dutch Hotel, 733 So.2d at 537. Total benefits payable to Ms. Monroe are limited only by the "maximum weekly compensation rate in effect at the time of payment. " § 440.15(1)(e)1., Fla....

compensation law at issue here is set forth in section 440.015, Florida Statutes[3], which states in relevant

966 So.2d 978, 982 (Fla. 5th DCA 2007) (citing § 440.015). Nothing is quick and efficient about allowing

...We can find no error on this point because the order unambiguously indicates that the award of wage loss benefits is not an additional award of rehabilitation benefits under section 440.49, Florida Statutes (1985), payable before claimant is adjudged to have reached MMI, but is an award of wage loss benefits under section 440.15(3)(b), payable after claimant has reached MMI....

...e to work must conduct a good-faith work search before any wage loss benefits may be awarded. With respect to this point, we hold that the judge did not err in ruling that claimant was entitled to receive wage loss benefits for the period indicated. Section 440.15(3)(b), Florida Statutes (1985), provides in part: 1....

...It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment. Under section 440.15(3)(b), a claimant is entitled to wage loss benefits upon showing a causal relationship between the wage loss and his compensable physical limitations, which may be proven by evidence that the claimant's physician instructed the claimant not to work, Perez v....

...1st DCA 1989) (a work search is not an absolute prerequisite to entitlement to wage loss benefits, but rather is an evidentiary tool by which the claimant will generally demonstrate that compensable physical limitations caused his wage loss). The application of the deemed earnings provision in section 440.15(3)(b) involves shifting burdens of proof....

...The judge did not abuse her discretion in ruling that claimant was qualified to receive wage loss benefits. III. Third, appellants contend, assuming arguendo that claimant is entitled to wage loss benefits, the judge erred in failing to apply the deemed earnings provision in section 440.15(3)(b), Florida Statutes (1985), because there was evidence that claimant refused to seek employment in order to permit himself to pursue his degree. We accept the proposition that if a claimant is qualified to receive wage loss benefits, the deemed earnings provision of section 440.15(3)(b) may be applicable in the circumstances shown here....

...*840 William C. Kaleel, Jr. of Kaleel & Kaleel, P.A., St. Petersburg, for appellant. Robert M. Todd of Lyle & Skipper, P.A., St. Petersburg, for appellees. MILLS, Judge. Claimant appeals from a workers' compensation order dismissing her claim because Section 440.15(3)(b)3d, Florida Statutes (1981), bars the payment of wage loss benefits to an employee who has reached the age of 65 and becomes eligible for social security benefits. We affirm. Claimant contends Section 440.15(3)(b)3d, Florida Statutes (1981), is unconstitutional....

...Following a hearing on her claims, the judge of compensation claims (JCC) awarded claimant PTD benefits and costs. At hearing, claimant complained of continuing low back pain. In awarding PTD benefits, the JCC relied in part upon claimant's testimony and his observation of her. Section 440.15(1)(b), Fla....

In fact, to suggest otherwise would violate section 440.015, Florida Statutes (2004), where the legislature

..."if the employee .. . is physically capable of ... gainful employment." (emphasis in original) This reflects the very substantial changes in the criteria for a finding of permanent total disability which were brought about by the 1979 amendments to § 440.15(1), Fla....

...Star Fruit Co. v. Canady [159 Fla. 488], 32 So.2d 2, at p. 4 (Fla. 1947). [emphasis supplied] An unreasonable refusal to attempt offered employment within the terms of a medical release may of course constitute a voluntary limitation of income under § 440.15(4)(b), Florida Statutes, see Paul Lawhon Plumbing Co....

...Hawkins, Senior Attorney, Tallahassee for Intervenor Florida Department of Labor and Employment Security, Division of Workers' Compensation. BARFIELD, Judge. The claimant, Kelvin Bradley, seeks review of an order issued after an emergency conference. The claimant argues that section 440.15(3)(a)3, Florida Statutes (1994), is unconstitutional....

...He has restrictions of no stair climbing and no heavy lifting over 50 pounds. While working, claimant had earned approximately $150 per week. After the injury, but prior to reaching maximum medical improvement, claimant received temporary total disability benefits in the amount of $200 every two weeks pursuant to section 440.15(2)(a), Florida Statutes (1994), which provides: (a) In case of disability total in character but temporary in quality, 66 2/3 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....

...urs earlier, temporary disability benefits shall cease and the injured workers' permanent impairment shall be determined. After reaching maximum medical improvement, the carrier indicated claimant would receive $50 per week for 24 weeks, pursuant to section 440.15(3)(a)3, Florida Statutes (1994), which provides: 3....

...ttorney's fees. The JCC ordered the E/C to pay impairment benefits weekly and denied the remaining requests. The JCC correctly noted that she lacked jurisdiction to find the workers' compensation act unconstitutional. On appeal, claimant argues that section 440.15(3)(a)3, Florida Statutes (1994), unconstitutionally violates his right of access to courts....

...through June 30, 1990. Claimant argues the permanent impairment benefits scheme under the 1994 act fails to constitute a reasonable alternative to the claimant's common law right to sue the employer for negligence. We conclude that the provisions of section 440.15(3)(a)3 do not violate the claimant's right of access to the courts....

...It provides injured workers with full medical care and benefits for disability and permanent impairment regardless of fault, *165 without the delay and uncertainty of tort litigation. Claimant next argues that the permanent impairment payment scheme under section 440.15(3) violates his right to due process because it bears no reasonable relationship to any permissible legislative objective and is discriminatory, arbitrary and oppressive....

...fits in particular is sufficiently rational and reasonable to meet constitutional due course requirements. Texas Workers' Comp. Com'n v. Garcia, 893 S.W.2d 504, 524-525 (Tex.1995). [2] AFFIRMED. KAHN, J., and SHIVERS, Senior Judge, concur. NOTES [1] Section 440.15(3)(b) provides that an employee is entitled to supplemental benefits as of the expiration of the impairment period, if: (a) the employee has an impairment rating from the compensable injury of 20 percent or more; (b) the employee has n...

...Therefore, the compensable injury continues temporarily to manifest itself, until maximum medical improvement, in the form of a partial disability for which the workers' compensation law requires commensurate compensation based on actual wage loss. § 440.15(4)(a), Fla....

...question provides for 50% permanent partial disability of the body as a whole "with an appropriate set-off for the previous settlement... ." We do not know what is meant by "appropriate," since the order contains no findings as to the application of Section 440.15(5)(c)....

...lity that is greater than that which would have resulted from the subsequent injury ... alone," nor does the order specify "the degree of disability that would have resulted from the subsequent injury ... if the previous disability had not existed." Section 440.15(5)(c), Florida Statutes (1977)....

...a condition subsequent that would cancel a PTD award. The Legislature has adopted the social security disability standard for catastrophic injury. The Legislature has also required a PTD claimant to apply for social security disability benefits. See § 440.15(1)(f)2.b., Fla....

...ed solely on the lay testimony of the claimant, on his own observations of the claimant, or on both. In 1979, in amending the law relating to permanent impairment and wage-loss benefits, the legislature clearly set out the purpose of the amendments. Section 440.15(3)(a)3., Fla....

...On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, *654 copyright 1977, 1971 by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereon. (emphasis supplied) In respect to wage-loss benefits § 440.15(3)(b)1., Fla....

...to wage-loss benefits. Although any permanent impairment is sufficient to be a basis for a wage-loss claim, not only the degree of impairment but the existence of any impairment must be "based upon medically or scientifically demonstrable findings." § 440.15(3)(a)3., Fla....

...So the cost of taking the doctor's deposition or having the doctor here to testify would be equal to the three months wage loss.... The Claimant had surgery. I'm sure he can testify to that. And that he had a disability. Wage-loss benefits are payable when a worker suffers "any permanent impairment." § 440.15(3)(b), Florida Statutes (1979)....

...The permanent impairment rating provision of § 440.25(3)(b), Florida Statutes (1979), [2] for impairment awards is therefore not directed to the evidentiary predicate necessary to establish a claimant's entitlement to wage-loss benefits for permanent partial impairment. While § 440.15(3)(b), Florida Statutes (1979), establishes that the Division of Workers' Compensation shall adopt a "schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings," (...

...Rather, his order implicitly rejects claimant's testimony as insufficient to establish a valid job search, but concludes that because claimant is partially disabled and has voluntarily limited his income he is subject to the deemed earnings provisions in section 440.15(4)(b)....

City's contention that the 1990 enactment of section 440.015 repealed section 112.18 by implication, to

...the carriers for the payment of compensation due a claimant under other provisions of the law. See Seasons From Sarasota v. O'Day, 379 So.2d 1024 (Fla. 1st DCA 1980). [5] However, a subsequent employer/carrier's liability to the claimant pursuant to section 440.15(5)(a) for temporary disability and medical benefits due to a subsequent injury cannot be offset or diminished by such right to reimbursement. Thus, the remedy afforded carriers under section 440.42(3) should not be confused with substantive apportionment as that term is contemplated in section 440.15(5)(a), providing that "[c]ompensation for temporary disability, medical benefits, and wage-loss benefits shall not be subject to apportionment." (e.s.) Earlier, this precise distinction was made in Rowe & Mitchell v....

...1968), the case relied on for the inapplicability of section 440.02(18) in Rowe, make it plain that section 440.42(3) can be applied only when each of the contending employer/carriers' liability for the benefits in question has been determined under other provisions of chapter 440. Sections 440.15(5)(a), (440.02(18)) could not, of course, be directly applicable to the allocation independent of liability issues. It is equally plain from Rowe's reliance on Nolin that the opinion was not intended to preclude absolutely the consideration of section 440.15(5)(a) in disputes involving multiple carriers when the liability of any carrier on the facts as to a specific benefit requires application of that or any other provision of the statute. One of those specific facts (not present in the instant case) required by the context of section 440.15(5)(a) is that a subsequent accident must have impacted a prior permanent condition....

...e medical need, and remedial treatment, for the first injury had apparently not been terminated by MMI prior to the second injury. Certainly that opinion, like others following it, does not expressly or implicitly rationalize any basis for confining section 440.15(5)(a) to disputes between a carrier and claimant over apportionment between a compensable injury and a noncompensable condition....

...1st DCA 1986), we have construed the statutory language of section 440.42(3) to allow the judge to order "apportionment" between carriers, i.e. in the sense of reimbursement, not only of medical benefits but of temporary disability benefits as well. Additionally, that case holds section 440.15(5) to ......

...The reimbursement remedy in that section is purely procedural (see Catinella, note 6 of majority opinion) and requires a prior or contemporaneous determination of liability of each carrier for benefits to claimant. Even after the 1979 change in location of the language from section 440.02(18) to section 440.15(5)(a), and removal of words "under this subsection," Rowe's reliance on Nolin remains appropriate. The latter opinion is clear that, even before the 1979 change in location, the affirmative expression set out in the later enacted Section 440.02(19) should control the scope of Section 440.15(5)(c)......

...[T]he two apportionment provisions were intended to have parallel applications since there seems to be no logical reason to treat pre-existing disability resulting from injury any differently from pre-existing disability resulting from disease or other congenital defect... . [T]he apportionment provision of Section 440.15(5)(c) and the reimbursement provision of Section 440.49(4)(c) are perfect equivalents and can only be applied as alternatives....

...1st DCA 1988), for the rule which has been applied when MMI from an initial compensable injury precedes a second compensable aggravating accident: Since apportionment of claims for temporary disability, medical benefits, and wage-loss benefits is barred by statute, § 440.15(5)(a), ......

...This language may have its origin in a failure to maintain a clear distinction between simple allocation between carriers where the measure of a claimant's right to compensation is not disputed, as opposed to a true apportionment defense based on aggravation or merger under circumstances within the terms of section 440.15(5)(a), which must of course await MMI since only permanent benefits are affected....

...1990), defines "wages" as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned on the job where the employee is injured." (Emphasis added.) (Footnote omitted.) Section 440.15(3)(b)(1), Florida Statutes (Supp....

...e employer but was unable to do so. He further found Davis in need of rehabilitation and due reimbursement for costs incurred in obtaining the awarded benefits. Wage-loss benefits are not awardable when a claimant has voluntarily limited his income. Section 440.15, Florida Statutes, Harper Plumbing and Heating v....

...Sanlando Utility Corporation v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275, 276 (Fla. 1st DCA 1981); Pompano Roofing Co., Inc. v. O'Neal, 410 So.2d 971 (Fla. 1st DCA 1982). We have interpreted the requirement of Section 440.15(3)(b)2, Florida Statutes (1979), placing "the burden ......

...weekly workers' compensation benefits does not authorize social security offsets against wage loss benefits, because wage loss benefits are paid monthly and are based on an average monthly wage. While the statute authorizing social security offsets, section 440.15(9)(a), keys such offsets to "weekly" benefits, the statute governing wage loss benefits, section 440.15(3)(b), Florida Statutes (1989), was amended in 1989 to provide that wage loss benefits are to be based on a claimant's average weekly wage and payable on a biweekly basis. The employer and carrier argue that this amendment to section 440.15(3)(b) allows them to apply the social security offset provision to all wage loss benefits paid after the date of the amendment. The employer and carrier have not yet established that any such offset would be proper for the reasons stated in the preceding paragraph, so we do not reach the issue concerning whether the 1989 amendment to section 440.15(3)(b) can operate to subject wage loss benefits paid after the date of that amendment to social security offsets....

...The deputy denied benefits in excess of this rating. The record reflects, however, that claimant lost the first phalange and a small part of the second phalange of her long or second finger, entitling her to compensation benefits for loss of the entire digit under the schedule, or 30 weeks. Section 440.15(3)(n), Florida Statutes (Supp....

...ecause appellants were injured and reached permanent total disability (PTD) prior to age sixty-two, they were not entitled to supplemental benefits after age sixty-five. In this consolidated appeal, appellants also challenge the constitutionality of section 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995), the authority for the termination of appellants' supplemental benefits, on supremacy clause and equal protection grounds....

...Appellants both suffered industrial accidents rendering them permanently and totally disabled before the age of sixty-two. Both appellants collected disability payments and both insurance carriers terminated the payments of supplemental benefits for PTD on the basis of section 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995), respectively....

...62, the claimant is not entitled to supplemental benefits after age 65."). Appellants initially sought reversal of the JCC's denial of benefits on the grounds that Wilkins was not controlling because there was a horizontal conflict between sections 440.15(1)(e)1. and 440.15(10), or that there was a vertical conflict between section 440.15(1)(e)1....

...Appellants' counsel, however, properly conceded at oral argument that should this court reject the constitutional challenges to the statutes at issue, Wilkins does control and stare decisis requires this court to affirm the orders. Appellants contend that section 440.15(1)(e)1., Florida Statutes (1991) and section 440.15(1)(f)1., Florida Statutes (1995), as construed by this court, are in violation of the supremacy clause of the United States Constitution and/or their equal protection rights....

...Hurricane Rest., 670 So.2d 162, 164 (Fla. 1st DCA 1996). Appellants' constitutional *355 challenges to the statutes are, therefore, properly before this court. Sasso, 431 So.2d at 208. Appellants first contend that the termination of benefits under sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995) is precluded by the Supremacy Clause of the United States Constitution because the statutes are preempted by federal law, specifically, 42 U.S.C....

...les states to reduce the amount of workers' compensation payments by making social security benefits payable before the workers' compensation benefits. Florida was among the states which exercised the option to reverse the federal offset by enacting section 440.15(10), Florida Statutes (1980). Under section 440.15(10), the combination of workers' compensation benefits and social security benefits could not exceed 80% of an employee's average weekly wage....

...The states, including Florida, that had already enacted reverse offset *356 provisions were "grandfathered" in and allowed to continue to apply reverse offsets, i.e., reduce workers' compensation benefits on account of the receipt of social security benefits. Appellants challenge the validity of section 440.15(1)(e)1. which was first enacted in 1990 and provides for the cessation of the supplemental benefits for PTD upon an employee's sixty-second birthday. Appellants argue that the statute operates as a reverse offset under section 440.15(10) because it reduces the workers' compensation benefits on account of the receipt of social security benefits, and that Florida cannot reduce such benefits unless the offset was a law in 1981. We hold that the termination of supplemental benefits pursuant to 440.15(1)(e)1., Florida Statutes (1991) and section 440.15(1)(f)1., Florida Statutes (1995) is not a reverse offset pursuant to section 440.15(10), and therefore, is not in conflict with 42 U.S.C....

...at 1033-1034 (citations omitted). The exception created by Congress in 42 U.S.C. 424a(d) is not so pervasive as to require this court to infer that Congress intended to preclude the State of Florida from ever terminating benefits such as those terminated by 440.15(1)(e)1., Florida Statutes (1991) and section 440.15(1)(f)1., Florida Statutes (1995), and not offset by section 440.15(10)....

...e federal law, 42 U.S.C. section 424a, which explicitly coordinates benefits to avoid duplication. The Florida statutes, by avoiding duplicative benefits, are consistent with federal law. We hold that 42 U.S.C. section 424a does not preempt sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995). Appellants alternatively argue that the cessation of the cost of living supplements for PTD, under sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995), violates the constitutional guarantees of equal protection of the law....

...Const.; U.S. Const. amend. XIV, § 1. Because appellants' challenge is based on age discrimination, it is subject to the rational basis review. [2] We find that the termination of PTD supplemental benefits at the age of sixty-two, pursuant to sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995), survives the rational basis test because it is reasonably related to a permissible government objective....

...reaches PTD prior to age 62] a claimant would not continue to work after a traditional retirement age." 754 So.2d at 52. Further, the Final Staff Analysis and Economic Impact Statement for the original enactment of the statutory language at issue in section 440.15(1)(e)1....

...Appellants have failed to meet their burden in establishing that there is no legitimate state purpose furthered by the termination of PTD supplemental benefits provision. We hold that the legislature's statutory objective satisfies the rational basis test and that sections 440.15(1)(e)1., Florida Statutes (1991) and 440.15(1)(f)1., Florida Statutes (1995) do not violate equal protection....

...NOTES [1] The language at issue, identical in both versions of the statute, is as follows: "Entitlement to these supplemental payments shall cease at age 62 if the employee is eligible for social security benefits under 42 U.S.C. §§ 402 and 423, whether or not the employee has applied for such benefits." § 440.15(1)(e)1., Fla. Stat. (1991), and § 440.15(1)(f)1., Fla....

...Jack A. Weiss and Russell S. Whittle of Conroy, Simberg, Lewis & Ganon, P.A., West Palm Beach, for Appellees. PER CURIAM. Deborah L. Hurley appeals a workers' compensation order which, on the basis of the voluntary limitation of income provision of section 440.15(4)(b), Florida Statutes (1991), [1] denied her claim for temporary partial disability and/or wage loss benefits from August 2, 1994, and continuing....

...nt voluntarily limited her income when she lived in Hobe Sound. Claimant also contends that the JCC erroneously found that the position continued to be available even after she moved away. We agree with claimant that the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1991), should not have been applied beyond "the next three biweekly periods," and we reverse the order in part accordingly....

...the product of "improper motivation," must be reversed. Further, we disagree with the JCC's determination that the offer of a job entailing a daily round-trip of 134 miles constitutes a job offer within a "reasonable geographic area," as required by section 440.15(4)(b), Florida Statutes (1991), [4] B & J Windows v....

...Having erred in finding that the job "continues to be within reasonable proximity of claimant's present home," the JCC also erred in concluding, on the basis of Hyatt Regency Westshore v. Robinson, 629 So.2d 1088 (Fla. *312 1st DCA 1994), [5] that the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1991) should automatically apply for more than three biweekly periods....

...We conclude, therefore, that the employer/carrier should be permitted to deem earnings on account of the claimant's refusal to accept employment as a cashier, but only for three biweekly periods, beginning on August 2, 1994. Affirmed in part, reversed in part. ERVIN, KAHN and BENTON, JJ., concur. NOTES [1] § 440.15 Compensation for disability....

...is the amount which would have been earned if the employee had not limited his income or failed to accept appropriate employment or had not been terminated from employment due to his own misconduct. The amount deemed shall be applied against the next three biweekly payments.... § 440.15(4)(b), Florida Statutes (1991)....

...phic area which the employee is physically and vocationally capable of performing, in which case the amount the employee is able to earn may be deemed to be the amount the judge of compensation claims finds that the employee could earn in such jobs. § 440.15(4)(b), Fla. Stat. (1991). [5] The Hyatt case involved section 440.15(3)(b)2, Florida Statutes (Supp.1990), not section 440.15(4)(b), Florida Statutes (1991)....

...Appellee's part-time status, on the other hand, is expected to continue only while he pursues his education. The judge therefore properly declined to apply Section 440.14(1)(f). We find, however, that the judge erred in rejecting appellants' defense that *949 appellee voluntarily limited his income. Section 440.15(4)(b), Florida Statutes (1985) states in part: In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to ear...

...He then deemed earnings against claimant of $200.00 per week for three biweekly periods on account of the first job offer, and $260.00 per week for three biweekly periods on account of the second job offer, reducing claimant's wage-loss benefits accordingly, pursuant to section 440.15(3)(b)2., Florida Statutes (Supp. 1990). The employer and servicing agent filed a motion for rehearing, in which they argued that the judge of compensation claims should have applied section 440.15(6), which reads: "If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable." According to the employer and servicing agent, section 440.15(6) barred claimant's entitlement to any wage-loss benefits *1089 for as long as either job remained available. The judge of compensation claims denied the motion for rehearing on the ground that the applicability of section 440.15(6) had not been timely raised, prior to entry of the order on compensation. Our review of the record satisfies us that that ruling is correct, because the section 440.15(6) defense was not presented with clarity prior to the motion for rehearing. E.g., Bay Automotive v. Allaire, 593 So.2d 589 (Fla. 1st DCA 1992). Accordingly, we decline to address the applicability of section 440.15(6). To the extent relevant, section 440.15(3)(b)2....

...Equally clearly, the judge of compensation claims is required to make findings regarding whether, for each applicable period, the employee has voluntarily limited his or her income. E.g., Bado v. Canteen Corp., 513 So.2d 1364 (Fla. 1st DCA 1987). However, we are unable to find in either section 440.15(3)(b)2....

...In this workers' compensation case, claimant appeals from the order of the deputy commissioner denying his claim for a lump sum advance payment of compensation or for resumption of permanent total disability benefits. The claim was denied on the basis of section 440.15(9), Florida Statutes (Supp....

...At that time, claimant was detained in the county jail pending the posting of a bond. As a result of the employer/carrier's action, claimant lost his only source of income. Before the deputy commissioner, claimant argued that the term "inmate of a public institution" should not include a pre-trial detainee and that section 440.15(9) is unconstitutionally discriminatory....

...ties stipulated to the present value — and improperly considered a "contingency" not permitted by section 440.20(10), Florida Statutes, in denying the advance payment based on claimant's being an inmate in a public institution. Because we hold that section 440.15(9) is unconstitutional as applied to appellant, we must reverse the order of the deputy commissioner. The thrust of claimant's argument that section 440.15(9) is unconstitutional is that as applied to him it resulted in cutting off his only source of income which would have otherwise allowed him to post bond, whereas other injured employees — namely those who are temporarily totally disa...

...From that fund he maintained that he would use $45,250 to post bond and would invest the remaining sum, with the exception of $10,000 reserved for attorney's fees, in an annuity. Consequently, by its precluding him from receiving his compensation benefits of a lump sum advance thereof, claimant argues that section 440.15(9) denies him equal protection of the laws, insofar as the "favored class" of inmates — the temporarily partially disabled, the temporarily totally disabled, and the permanently partially disabled — are entitled to receive compensation benefits. In response, the employer/carrier argue that although the purpose of section 440.15(9) has not been placed on record by legislative history or explanation, it may be inferred from the language that the intent was to prevent receipt of double compensation that would allegedly occur from the support given the employee b...

...1st DCA 1983). Further, although without stating how, the employer/carrier maintain that the classification chosen by the legislature rationally advances this legitimate governmental objective. In addressing the issues brought before us, we first note that section 440.15(9) has been treated sparingly by our courts....

...1965) (wherein the supreme court held that a mental hospital was indeed a "public institution," but that the record did not establish that the worker was ever permanently, totally disabled, and accordingly denied certiorari); Bekins Van Lines v. Johnson, 414 So.2d 1189 (Fla. 1st DCA 1982) (wherein this Court noted that section 440.15(9) is "applicable only to permanent total disability benefits," and not to *68 an award of temporary total disability benefits for the period of time during which the claimant was in prison); R.E....

...t basis reversed the award of benefits during the time that claimant was incarcerated since he "clearly could not conduct a work search during that time, and there was no showing that claimant's loss of income was caused by the industrial accident"; section 440.15(9) was held not applicable since it applied only to PTD benefits). Thus, the issue before us is apparently one of first impression in this state. However, in addressing it, we confine our analysis to the question presented of whether section 440.15(9) unconstitutionally denies claimant equal protection of the laws where claimant is a permanently and totally disabled employee without dependents who was denied his benefits while incarcerated in a county jail prior to trial, and whose benefits were the only source of income from which he could have posted bond....

...Without doubt, our analysis is controlled by the rational basis test as described by this Court in Sasso v. Ram Property Management , and we must uphold the statute's classificatory scheme as long as it rationally advances a legitimate governmental objective. Stated differently, for section 440.15(9) to be constitutional as applied herein, there must be some reasonable basis for its classification, and its classification must further a legitimate state purpose. Sasso, 431 So.2d at 218, n. 18. In the instant case, as mentioned earlier, the employer/carrier maintain that the legitimate legislative objective of section 440.15(9) is to halt the practice of double dipping....

...erious question of denial of equal protection of the laws under the Fourteenth Amendment. Id. at 194, 350 N.Y.S.2d at 817. Additionally, here it is claimant's loss of wage earning capacity — not his actual loss of wages — which is compensable. See section 440.15(1)(b) and (d)....

...Brooks, Incorporated, 389 Mich. 91, 204 N.W.2d 139 (1973). Indeed, we can perceive of no legitimate legislative purpose being advanced by denying benefits only to permanently and totally disabled claimants incarcerated while awaiting trial. Since we hold that section 440.15(9) is unconstitutional as applied to appellant, we need not address his point that the deputy erred in interpreting the term "inmate" as applying to a claimant temporarily detained and preliminarily accused of a criminal offense, yet bondable. However, since the deputy denied claimant's claim for a lump sum advance payment of compensation or for the resumption of payment of compensation on the basis of section 440.15(9), we must also reverse on the remaining points and remand the cause to the deputy for reconsideration of the claim. REVERSED and REMANDED for further proceedings consistent with this opinion. BOOTH and BARFIELD, JJ., concur. NOTES [1] Section 440.15(9) states in full: (9) EMPLOYEE BECOMES INMATE OF INSTITUTION....

...She thereafter filed a petition seeking PTD benefits, which the employer/carrier controverted, and the cause proceeded to a hearing. In the order on appeal, the judge of compensation claims (JCC) found that Burnham sustained a catastrophic injury as defined in sections 440.15(1) and 444.20(34), Florida Statutes (1994)....

...JCC that Burnham was in fact permanently and totally disabled, especially given that such a finding in the instant case was premised upon vocational testimony and not upon medical evidence. In support of this argument, the employer/carrier note that section 440.15(1)(a) suggests that PTD status must be "adjudged." The employer/carrier further assert that Burnham had not sought PTD benefits as of the date assigned by the JCC as the date of MMI, and thus it would be unfair to assess a penalty as of that date....

...The question remains, however, when did installments of Burnham's PTD benefits become due? We are not persuaded that PTD benefits, as a general rule, become due only upon the finding of entitlement to such *751 benefits by a judge of compensation claims, despite the use of the term "adjudged" in section 440.15(1)(a)....

...Rehearing Denied April 2, 1997. *289 Ileana Marcos of Marcos & Rothman, P.A., Miami, for Appellants. Jerold Feuer, Miami, and Barry Pemsler, Miami, for Appellee. KAHN, Judge. In this workers' compensation case, the Judge of Compensation Claims (JCC) applied the literal terms of section 440.15(1)(e)1., Florida Statutes (1991), and held that a claimant, 69 years old at the time of her injury, and who is receiving social security retirement benefits is entitled to permanent total disability supplemental benefits....

...he statute. See Byte Int'l Corp. v. Maurice Gusman Trust, 629 So.2d 191 (Fla. 3d DCA 1993); Winemiller v. Feddish, 568 So.2d 483, 486 (Fla. 4th DCA 1990). The construction of the statute employed by the JCC meets the legislative aim, as expressed in section 440.15, Florida Statutes (1991), by eliminating supplemental benefits for certain claimants between the ages of 62 and 65....

...*1121 Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appellees. THOMPSON, Judge. This is an appeal from a compensation order denying wage loss benefits on the ground that the claimant is more than 65 years old. The claimant contends that § 440.15(3)(b)3.d., Fla....

...At a hearing on the claim for wage loss benefits, the deputy found that "[t]he Claimant, due to his permanent impairment, meets the threshold requirements for wage loss benefits, but I specifically find that the Claimant is not entitled to wage loss benefits since he is age 68 and Section 440.15(3)(b)(3)(d), Florida Statutes, 1979 proscribes the granting of such benefits, when the injured employee reaches age 65......

...impairment according to the AMA Guides. There was no determination of whether there was an actual wage loss or whether the work search was sufficient, and no finding that the claimant would be entitled to wage loss benefits but for the provisions of § 440.15(3)(b)3.d....

...John McFayden, Pinellas Park, for appellee. THOMPSON, Judge. The employer/carrier (the "E/C") appeals a final order of the Deputy Commissioner (the "Deputy"), assigning as error the finding of the Deputy that the E/C was not entitled to an offset under the provisions of § 440.15(10)(a), Fla....

...ceed 80% of the employee's average weekly wage. The claimant contested the offset and the Deputy ruled that the E/C could not include social security benefits paid to the dependents in determining the amount of the offset. The Deputy recognized that § 440.15(10)(a), Fla....

...2-3514 (August 28, 1978), and Oroweat Foods Company v. Valle, IRC Order No. 2-3512 (August 25, 1978) in which the Industrial Relations Commission held that dependent's benefits cannot be used in computing the offset allowed to the E/C. Prior to its 1979 amendment, § 440.15(10)(a) (1977), provided in part that Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...er the first month for which reduction under this section is made. (Emphasis supplied) Title 42 U.S.C. § 424a(a), the federal offset provision, refers to "such total benefits under sections 423 and 404" when referring to the federal benefits, while § 440.15(10)(a), Fla....

...ose paid to the spouse and dependent children of that insured individual, and such combined benefits constitute the "total benefits" referred to in 42 U.S.C. § 424a(a). [1] By extension, these benefits constitute the "total benefits" referred to in § 440.15(10)(a), *517 Fla....

...t the State of Florida properly took advantage of the change in federal law by enacting its offset provision, effective on July 1, 1973 (emphasis supplied). There is no federal offset under 42 U.S.C. § 424a(a) if there is a state offset law such as § 440.15(10)(a), Fla....

...[2] After the IRC rendered these decisions, the legislature promptly amended the law to add the words "and his dependents" following the words "such total benefits payable for such period to the employee." Apparently, the purpose of this amendment was to correct the IRC's misunderstanding of § 440.15(10)(a).

...The denial of benefits was based entirely on an assumption that the employer could defeat a claim for permanent benefits by proving that the employee could make effective use of a *638 prosthetic device. We disagreed with that assumption as a matter of law, and concluded that under section 440.15(1)(b), Florida Statutes (Supp.1994), in the absence of conclusive proof of a substantial earning capacity, the claimant was presumed to be permanently and totally disabled. We noted that no conclusive proof of the claimant's substantial earning capacity was presented to the judge of compensation claims and remanded for a determination of the claimant's entitlement to benefits under section 440.15....

...See Neff v. Britto, 404 So.2d 416 (Fla. 1st DCA 1981); Bell Rentals and Sales v. Harvey, 405 So.2d 289 (Fla. 1st DCA 1981). However, all of these cases involved accidents that occurred prior to August 1, 1979, the effective date of a substantial amendment to § 440.15(5), Fla. Stat. Prior to the 1979 amendment, § 440.15(5) provided: (5) SUBSEQUENT INJURY....

...However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury or occupational disease if the previous disability had not existed. In 1979, § 440.15(5) was completely rewritten to provide: (5) SUBSEQUENT INJURY....

...While 440.42(3) grants the deputy commissioner (deputy) jurisdiction to adjudicate controversies between carriers as to responsibility for payment of benefits, the deputy must follow the law in making his decision. If the clear and unambiguous language of § 440.15(5) (1979) is to be given any force and effect, the deputy is prohibited from apportioning any compensation for temporary disability or medical benefits payable after the subsequent accident....

...aid by it to the employee-claimant. The court reversed the deputy's allowance of reimbursement, holding that the second e/c was itself solely responsible for the payment of the employee's benefits. In so holding, Hayward apparently drew support from section 440.15(5), barring apportionment for temporary and medical benefits, in reaching its conclusion that until a claimant has obtained maximum medical improvement (MMI), and a permanency rating is achieved, no apportionment can be made between the two carriers as to their respective responsibilities....

...1st DCA 1981); Bell Rentals and Sales v. Harvey, 405 So.2d 289 (Fla. 1st DCA 1981). Unlike Hayward, the case at bar involved no issue of apportionment, for the simple reason that no permanent disability rating had been assigned the claimant, as required by section 440.15(5)....

...Although Sisk — like Hayward — involved an insurer's claim for reimbursement against another insurer, pursuant to the provisions of section 440.42(3), and the present case involves a direct claim by an employee for temporary disability compensation and medical benefits, which are not subject to apportionment, section 440.15(5)(a), the same evidentiary rule of causation, announced in Sisk, applies also in the present case....

...The second solution, assigning liability to the carrier on the risk at the time of the last injury, has been termed the last injurious exposure rule. Id. at 17-112. It should be noted that Florida has by statute adopted that rule as to occupational disease cases only. See Section 440.151, Florida Statutes (1979)....

...borrowed time and probably never would have had the injury of 1983 had he not had the underlying pathology." The majority's opinion suggests that the rule permitting apportionment of medical benefits is no longer applicable after the 1979 amendment to Section 440.15(5), Florida Statutes....

...Under Section 440.42(3), the deputy commissioner is empowered to apportion the medical benefits awarded between the employer/carriers according to each one's responsibility. Rowe and Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1st DCA 1980). The language now found in Section 440.15(5), Florida Statutes, forbidding apportionment of medical and temporary benefits as to claims filed by a worker against an e/c, was included until the 1979 revision, under Section 440.02(18), Florida Statutes (1977), defining accident....

...Before the 1965 amendment, the court had construed section 440.02(19) as permitting apportionment of medical and temporary benefits. Shores Development, Inc. v. Carver, 164 So.2d 803 (Fla. 1964). In 1979, the apportionment bar to such benefits was transferred to section 440.15(5)....

...Thus, for nearly twenty years there has existed no authority to apportion medical or temporary benefits in a claim involving only an injured worker and an e/c. See also Russell House Movers, Inc. v. Nolin, 210 So.2d 859 (Fla. 1968). Certainly the transfer of the apportionship bar from section 440.02(18) to section 440.15(5)(a) in 1979 had no more effect on section 440.42(3), permitting apportionment between carriers, than had the preclusion provision before 1979. Indeed, *509 the transfer to section 440.15, providing generally the types of disability-compensation available to injured workers, serves to clarify the legislative intent that the bar affects only claims between the claimant and an e/c, and not disputes between multiple carriers....

...allows the deputy to divide liability according to each carrier's responsibility." 417 So.2d at 739 (e.s.). The point of my disagreement with the majority is not that the deputy in the instant case could apportion medical and temporary benefits between the two carriers — clearly he is prohibited from doing so by section 440.15(5) — rather that the majority's application of the principles stated in Hayward Trucking, Inc....

...Aetna Insurance Company to the case at bar is misplaced, because that case involved a claim for reimbursement by one carrier against another, and as such, was controlled by the provisions of section 440.42(3), which, as stated, permits, in a proper case, apportionment of medical benefits paid. In the case on review, section 440.15(5) applies, so no issue of apportionment is involved....

...In his order the deputy made a specific finding, with which we agree, that the claimant had voluntarily limited her income by not conducting an adequate work search after the date of maximum medical improvement. *1146 This finding, in turn, triggers the provisions of Section 440.15(3)(b)(2), Florida Statutes (1979): 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, including earnings from sheltered employment....

...It was the e/c's position before the deputy and before this court that although claimant was voluntarily accepted as TTD and later as PTD, he is not entitled to full compensation because he continued to receive wages from the corporation, as contemplated by Section 440.15(1)(d), which were equal to his wages before the injury, therefore he is not losing wages....

...[2] This brings us to the central issue of whether claimant was receiving "actual earnings" which would require a reduction in the amount of benefits to which he was entitled. The deputy correctly concluded that the issue must be determined with reference to Section 440.15(1)(d), Florida Statutes (1977), which provides: If an employee who is being paid compensation for permanent total disability shall become rehabilitated to the extent that he shall establish an earning capacity by employment he shall be...

...The e/c urges that the deputy's finding was in error and relies on Delta Terrazzo, Inc. v. Jones, IRC Order 2-3467 (June 30, 1978) to support its position. Delta Terrazzo found that the claimant was in fact employed, although sporadically, and was receiving actual earnings. Section 440.15(1)(d) was held to apply to situations of sheltered employment as well as to full-time non-sheltered employment....

...g power unless they are almost entirely the direct result of personal management and endeavor. Id. 301 A.2d at 112 (emphasis supplied by court). In the present case the deputy's conclusion that claimant had no "actual earnings" within the meaning of Section 440.15(1)(d), Florida Statutes, is thus supported by what we find to be the weight of authority in other jurisdictions which have previously addressed this issue....

...WENTWORTH, Judge, concurring specially. Although I agree with affirmance in this case, and with the majority's excellent analysis of the first two points argued by appellants, I would recognize that our determination of wage earning capacity by actual earnings under § 440.15(1)(d) cannot be guided by decisions on wage earning capacity for permanent total disability purposes generally....

...With respect to the terminology of the award of benefits "during the continuance of the Claimant's permanent total disability," I find no reversible error although the decretal language might more properly have been an award of delinquent PTD payments based on denial of off-set for earnings pursuant to § 440.15(1)(d)....

...498, 83 L.Ed.2d 391 (1984) (holding provision cutting off wage-loss benefits at age 65, did not deny access to courts); Acton v. Ft. Lauderdale Hosp., 440 So.2d 1282 (Fla.1983) (approving district court's determination that 1979 amendment that replaced permanent partial disability benefits in section 440.15(3) with permanent impairment and wage-loss benefits system did not violate access to courts); Iglesia v....

...Floran, 394 So.2d 994 (Fla.1981) (holding amendment repealing right to bring lawsuit for negligence of coworkers except in cases of gross negligence, did not deny access to courts); Bradley v. The Hurricane Restaurant, 670 So.2d 162 (Fla. 1st DCA 1996) review denied, 678 So.2d 337 (Fla.1996) (holding section 440.15(3), Florida Statutes (Supp.1994) which significantly reduces benefits to a permanently injured worker from benefits that the same injured worker would have received had the worker been injured earlier, does not violate right of access to courts); John v....

...former employer after being displaced from her job. City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), establishes that these are significant factors to be considered in assessing whether a claimant has met the burden of proof imposed by section 440.15(3)(b)(2), Florida Statutes....

...." Regency Inn further indicates that once a claimant shows such loss the burden is then upon the employer/carrier to demonstrate a voluntary limitation of income or refusal of work. The circumstances of the present case satisfy claimant's initial burden of proof in accordance with section 440.15(3)(b)(2), as delineated in Rumph and Regency Inn....

10, Gordon emphasizes what is enumerated in section 440.015 as the legislative intent behind the workers'

...7, 2003, through February 14, 2004, the date claimant was terminated from employment and the employer/carrier (E/C) ceased paying benefits, Fardella argues the JCC erred in concluding that she had voluntarily limited her income for such period under section 440.15(4)(b), Florida Statutes, because the legislature had deleted such defense from the statute as of January 1, 1994, and thus the defense and its deemed-earnings provision no longer existed when claimant was injured on June 24, 2003....

...losing that claimant had the capacity to earn no less than the amount of temporary indemnity benefits actually paid her during such time. As this court noted in Vencor Hospital v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998), the amended version of section 440.15(4)(a), Florida Statutes, continues to allow an E/C to compute TPD benefits based upon what a claimant is able to earn, rather than what he or she actually earns, in that the statute pins remuneration on what "the employee is able to earn" postinjury....

...We reverse, however, the JCC's denial of any temporary disability benefits from the period February 14, 2004, through June 1, 2004, the date of the hearing, because such denial was grounded neither on the facts presented nor the applicable law. In reaching his determination, the JCC erroneously relied on the provisions of section 440.15(4)(e), Florida Statutes (2003), barring an employee from TPD benefits if he or she "is terminated *278 from postinjury employment based on the employee's misconduct." Such provision did not take effect until October 1, 2003, after the date of claimant's injury on June 24, 2003....

...benefits based upon conduct at work is clearly substantive in its effect, and has no relation to a procedural provision that only imposes a statutory penalty. See Sullivan v. Mayo, 121 So.2d 424 (Fla. 1960). The JCC additionally erred in relying on section 440.15(6), Florida Statutes (2003), which bars an employee from entitlement "to any compensation at any time during the continuance of [the employee's refusal of employment suitable to his or her capacity] unless at any time in the opinion of...

...CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003); Jefferson v. Wayne Dalton Corp., 793 So.2d 1081 (Fla. 1st DCA 2001). On remand, the JCC is directed to determine claimant's entitlement to TPD benefits without applying the provisions of sections 440.15(4)(e) and 440.15(6)....

...The plaintiff claims that the employer has not offered work with the plaintiff's physical limitations, and that the plaintiff's refusal to return to work is justifiable. This dispute is squarely within the grant of jurisdiction to the judge of compensation claims under subsection 440.15(6). [3] In order to read the various parts of chapter 440 harmoniously with each other, we conclude that a dispute that falls within the *99 scope of subsection 440.15(6) is outside the coverage of section 440.205....

...Piezo Technology and Professional Administrators. Montes de Oca at 259. The court in Montes de Oca rejected the plaintiff's claim and held that the plaintiff's dispute with the employer was within the jurisdiction of the Judge of Compensation Claims pursuant to section 440.15(6), Florida Statutes. The court also stated that: Plaintiff in essence asks us to expand the holding of Smith beyond retaliatory discharge so that in every case in which there is a dispute under Section 440.15(6), the employee would be allowed to file a companion civil action in Circuit Court alleging intimidation or coercion....

...t. [2] "Other benefits" has been construed to include insurance benefits, sick leave, vacation pay or other economic or fringe benefits "commonly associated" with employment. Juror 157 v. Corporate Defendant, 710 F.Supp. 324, 326 (M.D.Fla.1989). [3] Section 440.15(6), Florida Statutes (1993) provides: (6) Employee refuses employment.—If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of compensation claims such refusal is justifiable. See also section 440.15(7), Florida Statutes (1997), which provides: (7) Employee refuses employment.—If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any comp...

...Notwithstanding, he found that Peck suffered a compensable injury by accident which arose out of and in the course of employment on November 1, 1978. The deputy commissioner's recognition of the requirement of referencing a rating of permanent impairment to the AMA Guides, as provided by Section 440.15(3)(a)3, is consistent with the court's opinions in Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981) and Jamar Sportswear, Inc. v. Miller, 413 So.2d 811 (Fla. 1st DCA 1982). Section 440.15(3)(a)3 mandates the Division of Workers' Compensation of the Department of Labor and Employment Security to "establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientif...

...anguage of the amended statute, a number of our decisions, while sustaining awards not based on evidence reflecting the use of the guides, have nonetheless observed that such awards, entered on or after August 1, 1979, were "technical violations" of Section 440.15(3)(a)3....

...Snead, at 1017; Vannice Construction Co. v. Silverman, 419 So.2d 369 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So.2d 296, 297 (Fla. 1st DCA 1982). Although it does not appear from any of the above opinions whether the court was asked if Section 440.15(3)(a)3's provisions could be retrospectively applied to injuries which had occurred before the statute's effective date, the consequence of our decisions in Rohn and Jamar was to do just that, since they disapproved impairment ratings, not based on the guides, of injuries which had been sustained before August 1, 1979, the date Section 440.15(3)(a)3 became *1052 law. We now recede from Rohn and Jamar, as well as all other opinions of this court holding similarly, because they did not properly take into account the effective date the guides were required to be used. Section 440.15(3)(a)3's provision that permanent impairment ratings be based on objective standards first appears in Section 10, Chapter 79-40, Laws of Florida....

...." (e.s.) Section 127 applied Chapter 79-40 "to all claims for injury arising out of accidents occurring on or after July 1, 1979." During the 1979 legislative session, Chapter 79-40 was amended by Chapter 79-312. Although minor changes were made to Section 440.15(3)(a)3 by Section 8 of the act, the language arising from Chapter 79-40 remained intact in requiring the temporary use of the guides "[o]n the effective date of this act......

...ugust 1, 1979." Chapter 79-312, Sections 23, 25, Laws of Florida (e.s.). [1] Section 25 specifically narrowed the effective date to Sections 6-20 of Chapter 79-312. Significantly, Section 8 of the act comprises the permanent impairment provisions of Section 440.15(3)(a)3....

...are to be used in rating the degree of permanent impairment: They are to be used in "all claims for injury arising out of accidents occurring on or after August 1, 1979. " (e.s.) Unfortunately this declaration was not carried over in the language of Section 440.15(3)(a)3, as published in the compiled 1979 general statutes....

...action which is in excess of the authority granted it. Foley v. State, 50 So.2d 179, 184 (Fla. 1951); Jones v. Christina, 184 So.2d 181, 184 (Fla. 1966). We are confident that the purpose of the revisers in substituting the words "August 1, 1979" in Section 440.15(3)(a)3 for "the effective date of this act" was simply to reference *1053 the language of Section 8, Chapter 79-312, to that contained in Sections 23 and 25 of the act, describing the conditions under which the act was to take effect....

..."removing inconsistencies, redundancies and unnecessary repetitions ... ." In view of the unambiguous language employed in Section 127 of Chapter 79-40, and in Sections 23 and 25 of Chapter 79-312, we now hold that the reference to August 1, 1979 in Section 440.15(3)(a)3 requires that the temporary guides be used to gauge the degree of permanent impairment only as to claims for injury arising out of accidents occurring on or after August 1, 1979....

...THOMPSON and BOOTH, JJ., specially concur. WENTWORTH, J., dissents with opinion. THOMPSON, Judge, specially concurring. I concur in the result reached by the majority on the issue determined en banc and would recede from the prior decisions of this court which interpret § 440.15(3)(a)3., Fla....

...n would prevent the claimant from receiving benefits he was entitled to under the law in effect at the time of his injury. BOOTH, J., concurs. WENTWORTH, Judge, dissenting. I dissent, and would conclude that our earlier decisions correctly construed § 440.15(3)(a)3 as a burden of proof amendment uniformly applicable after August 1, 1979, to the longstanding problem of determination of permanent impairment for compensation purposes....

...was awarded temporary total disability benefits. We find that the judge did not err in failing to credit the employer/carrier with unemployment compensation received by the claimant because the question was not properly raised at the hearing level. Section 440.15(11), Florida Statutes (1977), provides that temporary total disability benefits must be reduced by the amount of unemployment compensation simultaneously received by the claimant. The unemployment compensation set-off, like the Social Security set-off under Section 440.15(10), Florida Statutes (1977), is self-executing, giving rise to a continuing right and responsibility on the part of carriers to compute the correct set-off at the time a payment of compensation is due....

...ision in the Florida Workers' Compensation Law which expressly authorizes such a comparison. Other evidence at the hearing established the necessary causal relationship between claimant's industrial injury and the resulting wage loss, as required by section 440.15(4), Florida Statutes....

...of Nassau County, 488 So.2d 871 (Fla. 1st DCA 1986), relied on by appellant, involve disputes concerning apportionment of compensation benefits due prior to MMI. Those benefits are specifically not apportionable as to a dispute between the carrier and employee pursuant to § 440.15(5), Fla....

...ts resulting from an industrial accident of June 20, 1980, and finding claimant entitled to a reasonable attorney's fee and costs. The employer/carrier contends that the deputy's finding that claimant did not voluntarily limit his income pursuant to Section 440.15(4)(b), Florida Statutes, is not supported by competent substantial evidence, and that the *397 deputy further erred in finding claimant's attorney entitled to a fee....

...The order failed to specify any reason for rejecting the uncontroverted testimony of claimant's physicians that he was "more than capable" of performing light work as a night watchman. [1] Therefore, the deputy's finding that claimant did not voluntarily limit his income pursuant to Section 440.15(4)(b), Florida Statutes, is not supported by competent substantial evidence and must be reversed....

...nt. The Judge of Compensation Claims (JCC) held that the claimant was entitled to PTD benefits on two alternative grounds. He determined that the job the claimant now holds is both sedentary and part-time, and thus is below the standard set forth in section 440.15(1)(b), Florida Statutes (1986), requiring the claimant to "establish that he is not able uninterruptedly to do even light work due to physical limitation" in order to be eligible for PTD benefits. Alternatively, the JCC held, the job claimant holds is sheltered and therefore not a bar to PTD benefits. Although the JCC erred in his interpretation of section 440.15(1)(b), Florida Statutes (1986), competent substantial evidence supports his holding that the claimant's current position is sheltered employment....

...eld part-time, non-sheltered, non-gratuitous employment, based upon conclusion that claimant had failed to demonstrate inability to work uninterruptedly). Moreover, the ability to engage in sedentary employment satisfies the statutory prohibition in section 440.15(1)(b) (1986) against awarding PTD benefits to one who is able to perform light work....

...Monroe received it. In short, she complied fully "with rules ... promulgated by the division prescribing the procedure and manner for requesting the [employee's] authorization [to release social security disability information] and for compliance by the employee." § 440.15(10)(c), Fla....

...Borden, Inc., 377 So.2d at 795; Fla. Power & Light, 377 So.2d at 57. The propriety of the offset on and after March 15, 1999, is not in question. Also on March 15, 1999, however, Publix and ITT claimed the right to recoup alleged overpayments under section 440.15(13), Florida Statutes (1997), which provides: If an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which she or he is not entitled, the employee is liable to re...

...the biweekly payment. (Emphasis supplied.) The judge of compensation claims concluded that Publix and ITT were entitled to offsets (and, as a corollary, that the claimant was not entitled to full indemnity benefits) beginning on April 9, 1998. Under section 440.15(13), Florida Statutes (1997), we have allowed recovery of overpayments of indemnity benefits made after January 1, 1994, including overpayments attributable to concurrent social security disability benefits where "the fact of the overpayments is not in dispute and there is no question as to the amount." Brown v....

...[1] Nor does the present case raise any *1252 question involving offsets asserted or taken against an award of back compensation payments. [2] Cf. South Fla. Water Mgmt. Dist. v. Ciacci, 647 So.2d 203, 205 (Fla. 1st DCA 1994). Cases decided before section 440.15(13), Florida Statutes (1997), took effect required the employer or its insurance carrier actually to assert—meaning in the ordinary case actually to take—a social security disability offset in order to perfect the right to do so. See Dep't of Transp. v. Lindsey, 383 So.2d 956, 958 (Fla. 1st DCA 1980) (holding that "[s]ection 440.15(10)(c) does not authorize entry of an order for the recovery of `excess' compensation benefits paid during a period in which the employer or carrier should have reduced them, on account of contemporaneous Social Security payments, but did not"); Bakery Prods....

...1st DCA 1979) (holding that "the off-set could be taken starting ... the date the carrier first exercised its right to the offset," but not before then retroactively, citing Beulah Baptist Church v. Brantley, IRC Order 2-3907 (Sept. 11, 1979)). This construction of Section 440.15(10), Florida Statutes (1997)—a provision which has not changed substantively since its amendment in 1977, see Ch. 77-290, § 4, at 1288, Laws of Fla.—is not incompatible with section 440.15(13)'s abolition of the presumption that excess indemnity payments are gratuities. See Brown, 689 So.2d at 333 ("At one time, the cases held that an unexplained overpayment of workers' compensation benefits should be presumed to have been an irrevocable gift to the employee who received the overpayment.") While section 440.15(13) has reversed the statutory presumption that an overpayment is a gratuity, it has not altered the mechanism specified in section 440.15(10) for perfecting entitlement to a social security disability offset. The cases construing section 440.15(10) to require taking the offset in order to perfect entitlement do not treat indemnity payments as gratuities....

...without intervention of a judge of industrial claims and without the delay and expense inevitably attending litigation. We see no reason to depart from this statutory model in this case of employer neglect of its own interests...." Lindsey, 383 So.2d at 958-59. Section 440.15(13) does not reject this judicial gloss on section 440.15(10). Thus definitively construed, section 440.15(10) requires the conclusion that a recipient of permanent total disability benefits is entitled to full benefits, the concurrent receipt of social security disability benefits notwithstanding, until the employer or carrier takes a soci...

...equest by the employer or carrier in the manner prescribed by such rules or if any employee who is receiving permanent total disability benefits refuses to apply for or cooperate with the employer or carrier in applying for social security benefits. § 440.15(1)(f)2.b., Fla....

by design, are to be paid in real time. See § 440.015, Fla. Stat.(2007) (“It is the intent of the Legislature

pensation Act. See Fla. Stat. § 440.015. Under the no-fault system created by the Act

...s 35% based solely upon loss of wage-earning capacity and that disability is 50% of the left leg after "considering all factors." The judge then makes the statement that: [T]his Court feels compelled to limit its award to the schedule set forth in F.S. 440.15(3)(b) in spite of the clear language of F.S. 440.15(3)(s) and the holding of the Supreme Court in Magic City Bottle & Supply Co....

...Lucie County Sheriff's Dep't, 599 So.2d 1353 (Fla. 1st DCA), rev. denied, 613 So.2d 6 (Fla. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2350, 124 L.Ed.2d 258 (1993), and Scotty's v. Jacoby, 611 So.2d 101 (Fla. 1st DCA 1992). In these cases, we held that under section 440.15(3)(b)2., Florida Statutes (1990 Supp.), a claimant's work search responsibility is now predicated upon actual notice, rather than solely upon notice given by the employer/carrier....

...Cruz, 658 So.2d 108, 110 (Fla. 1st DCA 1995) ("Where the employee's actual knowledge becomes an issue, the employer bears the burden of proving the employee's knowledge of all statutory requirements regarding the performance of a job search to avoid the obligation in section 440.15(3)(b)2")....

...The employer/carrier (E/C) appeal from a wage loss award to claimant. E/C's sole point is that there was no evidence of permanent impairment under the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides) under the provisions of Section 440.15(3)(a)3, Florida Statutes (1981), and there was no justification for the deputy commissioner to go outside the AMA Guides to find permanent impairment....

...I submit that it is not a static phenomenon. And therefore with soft tissue injuries, it doesn't truly address itself to the issue, because we are not talking about either disk lesions or fractures. In Quality Petroleum Corp. v. Mihm, 424 So.2d 112, 113 (Fla. 1st DCA 1982), we observed: Section 440.15(3), Fla....

...the only schedule authorized by the statute. Although we have held that the use of the AMA Guides in determining the existence of permanent anatomical impairment is mandatory by virtue of the legislature's use of the mandatory language contained in Section 440.15(3)(a)3, Decor Painting & Iowa Mutual Insurance Company v....

...We write to address the argument of the employer/carrier that the JCC improperly awarded disability benefits for a total of 108 weeks, exceeding the 104 week maximum allowed by statute. Even if the awards of temporary total disability benefits and temporary partial disability benefits exceed the total of 104 weeks allowed by section 440.15(2)(a), Florida Statutes (Supp.1994) and section 440.15(4)(b), Florida Statutes (Supp.1994), this error was not preserved for appellate review by the employer/carrier....

origin, age, handicap, or marital status") with § 440.015, Fla. Stat. (2006) (stating the legislative intent

...[1] Further reflection persuades us that Winter Garden Citrus was mistakenly reasoned *965 as to the proper commencement date for these benefits. As noted previously, the Winter Garden Citrus court stated that payment of the 5% supplement provided for in section 440.15(1)(e)(1), Florida Statutes (1987), would begin on January 1 of the year following claimant's reaching PTD status....

...reached MMI in the same year he had his industrial accident; in Winter Garden Citrus, however, claimant's injury occurred in the calendar year prior to the year in which MMI was reached. This distinction is significant when the statute is examined. Section 440.15(1)(e)(1) states in pertinent part: In case of permanent total disability ......

not an economic or administrative burden. See § 440.015, Fla. Stat. Under the JCC's logic, an E/C providing

...Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981) contains no support for the claimant's argument, for the carrier in that case denied that a compensable catastrophic injury, as defined by Section 440.15(2)(b), Florida Statutes (1979), occurred....

...m. In April of 2001, after learning of the benefits Mr. McDade had received by virtue of his City employment, the School District's servicing agent began to reduce his weekly workers' compensation benefits by 20 percent on the purported authority of section 440.15(13), Florida Statutes (2001) ("If an employee has received ....

...The Legislature has statutorily authorized offsets and reductions in several situations. See § 440.09(1)(d), Fla. Stat. (2004) (for accidents occurring in other jurisdictions); § 440.09(5), Fla. Stat. (2004) (for failure to use a safety appliance); § 440.15(4)(a), Fla. Stat. (2004) (for earned wages in cases of temporary partial disability); § 440.15(9), Fla. Stat. (2004) (for social security benefits); § 440.15(10), Fla....

consistent with the legislative intent expressed in section 440.015, that chapter 440 be interpreted "so as to

...ly caps those benefits when they exceed the maximum weekly compensation rate in effect at the time of payment...." Indeed, rather than capping the total of compensation benefits plus supplemental benefits at the claimant's AWW, as argued by the E/C, section 440.15(1)(e)1., Florida Statutes (1985), specifically provides that "[t]he weekly compensation payable and the additional benefits payable pursuant to this paragraph, when combined, shall not exceed the maximum weekly compensation rate in effect at the time of payment as determined pursuant to s....

...Freed on October 29, 1980, he determined that she had already reached MMI and that there was no medical reason why she should not return to work. Drs. Parr and Freed both testified that the coccyx is a vestigial anatomic structure and that its removal does not affect anatomic function. The law applicable to this case is Section 440.15(3)(b), Florida Statutes (1979): (b) Wage-Loss Benefits — 1....

...The only exceptions to this rule are where the scheduled injury causes disability or incapacity in some other part of the body, as set forth in Kashin v. Food Fair, 97 So.2d 609 (Fla. 1957), or where claimant's disability is total rather than partial so that § 440.15(3), Fla....

...Since taking the part-time employment, *368 Perez, a twenty-one year old bilingual who has two years of college training, has not sought a better position. Under the facts of this case, we agree with employer/carrier who contend that appellee has voluntarily limited his employment. Section 440.15(3)(b)2 provides that if an employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the wages he is able to earn after the date of maximum medical improvement shall be deemed to be the amoun...

...Consequently, the judge of industrial claims erred by failing to make an award according to whichever of appellant's disabilities is greater: his disability based on physical impairment, or his disability based on diminution of wage-earning capacity. § 440.15(3)(u), Florida Statutes (1977)....

...SMITH, Jr., C.J., and SHIVERS and THOMPSON, JJ., concur. ON MOTION FOR REHEARING SHIVERS, Judge. Appellant contends that the instant case raises a question left unanswered by Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983). That question is whether section 440.15(3)(b)3.d., Florida Statutes (1979), which terminates workers' compensation wage-loss benefits at age 65 (age/wage-loss provision), is unconstitutional under the supremacy clause because it violates the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C....

...Florida law and the federal ADEA, no violation of the supremacy clause of the United States Constitution is involved. Accordingly, the motion for rehearing is DENIED. We certify, however, the following question to be of great public importance: DOES SECTION 440.15(3)(b)3.d., FLORIDA STATUTES (1979), VIOLATE THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION BECAUSE IT CONFLICTS WITH THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, 29 U.S.C....

...e statute involved age discrimination, it would still be authorized under § 623(f)(1) because "the differentiation is based on reasonable factors other than age," i.e., prevention of duplication of wage-loss benefits. 599 P.2d at 1037. We note that section 440.15(3)(b)3.d., Fla....

controlling since the apportionment statute (Fla. Stat. § 440,15(5)(c), F.S.A.) has been substantially altered

...1st DCA 1982), this court affirmed an award of temporary total disability benefits for a period of time during which claimant was in prison, finding the award was supported by competent, substantial evidence. However, Johnson is inapplicable to the instant case. In Johnson, the court noted that Section 440.15(9), Florida Statutes (1983) [now Section 440.15(8), Florida Statutes], applies to claimants who are permanently totally disabled (PTD). We note that Section 440.15(9), Florida Statutes (1983), which precludes compensation benefits to PTD claimants who are incarcerated unless the claimant has a person or persons dependent upon him, is not applicable here since at issue are TPD and wage-loss benefits. However, Sections 440.15(4)(a) and 440.15(3)(b)1., Florida Statutes, provide that TPD benefits and wage-loss benefits shall be based on actual wage loss, and the claimant has the burden of demonstrating inability to obtain employment or to earn as much as he earned at the time of his...

...e, and there is no showing that claimant's loss of income was caused by the industrial accident. We remand for the deputy commissioner to reconsider the award of benefits during the time claimant received benefits from another carrier. Both Sections 440.15(4)(a) and 440.15(3)(b)1 require benefits to be "based on actual wage loss." Since claimant was paid workers' compensation as a result of an industrial accident and those payments were in lieu of his wages (which would have been considered), the compensation benefits he received should be treated the same as wages....

...McTyre Trucking Co., Inc., 526 So.2d 739 (Fla. 1st DCA 1988). This requires an employer to "offer or furnish benefits when the employer knows, or reasonably should know from facts properly and diligently investigated, that such benefits are due." Id. at 741-42. Pursuant to section 440.15(3)(a), Florida Statutes (2005), once an employee reaches MMI, impairment benefits are due and payable within fourteen days after the carrier has knowledge of the impairment....

...If an employee has not been certified as having reached MMI before the expiration of ninety-eight weeks after the date temporary disability benefits begin to accrue, the E/C is obligated to notify the treating doctor of its obligation to certify a date of MMI and an impairment rating. § 440.15(3)(d)(2), Fla. Stat. (2005). An employer has the option, if necessary, of obtaining a date of MMI and a PIR from a doctor other than the employee's treating physician. See § 440.15(3)(d), Fla....

...A claimant has no legal means to enforce physician obligations or ascertain his or her permanent impairment. Indeed, permanent impairment benefits are designed to result in an automatic payment of benefits with no participation from the claimant. See § 440.15(3), Fla....

...physicians at Bascom Palmer. We decline to accept this contention, because the E/C would have garnered the information had it required authorized physicians to complete the necessary forms or obtained certification from an alternative physician. See § 440.15(3)(d), Fla....

...*874 Albert E. Harum, Jr., Miami, for appellant. Michael Fichtel of Adams, Kelley, Kronenberg & Kelley, Miami, for appellees. BARFIELD, Judge. The claimant in this workers' compensation case appeals an order approving a reduction of benefits under section 440.15(9), Florida Statutes (1982), based upon 80 percent of his average weekly wage....

...s are amended to provide for reduction or increase of the percentage of average current earnings, but he found that the record contained no evidence regarding the amount of the federal offset or showing an amendment to the Social Security law. Under section 440.15(9)(a), the employer/servicing agent's offset (based upon the amount by which the sum of the total benefits exceeds 80 percent of the AWW) could not be greater than the offset which the federal government would otherwise take (based upo...

...Hawkins, Senior Attorney, Tallahassee, for Florida Department of Labor and Employment Security, Division of Workers' Compensation, Amicus Curiae. SHAW, Justice. We have for review Barry v. Burdines, 667 So.2d 241 (Fla. 1st DCA 1995), wherein the district court certified: Whether Section 440.15(3)(b)4.d[.], Florida Statutes (1991), is subject to and comports with the requirements of Title I of the Americans with Disabilities Act? We have jurisdiction....

...1992, when he reached "maximum medical improvement." Barry returned to work in a limited capacity November 23, 1992, and began receiving wage-loss benefits for a period of seventy-eight weeks based on an impairment rating of nine percent *589 under section 440.15(3)(b)4.d., Florida Statutes (1991). [1] Barry filed this workers' compensation action claiming that section 440.15(3)(b)4.d....

...tes disabled individuals arbitrarily and deprives the disabled of an individualized assessment of their disabilities. The claims judge ruled against Barry and the district court affirmed, certifying the above question. The threshold issue is whether section 440.15(3)(b)4.d....

...Furthermore, the preemption clause within the ADA itself implies as much. See 42 U.S.C. § 12201(b) (Supp. III 1991). See also Harding v. Winn-Dixie Stores, Inc., 907 F.Supp. 386 (M.D.Fla.1995) (entitlement to workers' compensation benefits is subject to the ADA). Accordingly, we find that section 440.15(3)(b)4.d. is subject to the ADA. The next question is whether section 440.15(3)(b)4.d....

...cost to the employer. See § 440.015, Fla.Stat. (1991). The FWCA imposes no barriers such as those mentioned above in Griggs, and the criteria employed by the FWCA are not inadequate, arbitrary, or discriminatory. The impairment system set forth in section 440.15(3)(b)4.d. is a fair and efficient method for handling the large volume of workers' compensation claims filed in this state, and the assessment procedure is sufficiently individualized to satisfy the ADA. We conclude that section 440.15(3)(b)4.d. comports with the ADA. In addressing Barry's claim that the ADA preempts section 440.15(3)(b)4.d., this Court need look only to the language of the ADA itself, which provides that the ADA shall not be construed as invalidating any federal or state law that provides equal or greater protection. See 42 U.S.C. § 12201(b) (Supp. III *590 1991). In light of our finding that section 440.15(3)(b)4.d....

...III 1991); 29 C.F.R. §§ 1630.1, 1630.5, 1630.7 (1995). He has shown neither. We answer the certified question in the affirmative and approve Barry. It is so ordered. KOGAN, C.J., and OVERTON, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 440.15(3)(b)4.d., Florida Statutes (1991), provides in part: d....

...catastrophic loss award. The claimant was injured on 8 July 1985. The deputy awarded catastrophic loss benefits for 26 weeks beginning 10 December 1985. As we recently observed in Occidental Chemical Co. v. Howard, 508 So.2d 466 (Fla. 1st DCA 1987), section 440.15(2)(b), Florida Statutes, expressly provides that catastrophic loss benefits may in no event extend beyond six months from the date of injury....

...ss appellants. PER CURIAM. This workers' compensation case raises questions concerning the computation of wage-loss benefits for a worker who suffered a compensable accident on February 26, 1990. McCarthy's employer and the employer's carrier invoke section 440.15(3)(b)5, Florida Statutes (1991), which provides that the right to wage-loss benefits shall terminate altogether, if the claimant voluntarily limits his income on three occasions within a two-year period....

...McCarthy contends that the judge of compensation claims did in fact permanently foreclose wage-loss benefits, albeit erroneously, and also erred in finding that he voluntarily limited his income between February 21, 1992, and December 25, 1992. Citing section 440.15(3)(b)2, Florida Statutes (1991), he argues that earnings could not lawfully be imputed to him so as to diminish benefits, absent proof of actual job openings within his restrictions and within reasonable geographic proximity. We conclude that the judge of compensation claims properly applied section 440.15(3)(b)2, Florida Statutes (1991), and properly refrained from applying section 440.15(3)(b)5, Florida Statutes (1991)....

...1960), while no party has a vested right in any particular procedure, including the allocation of the burden of proof. See Litvin v. St. Lucie County Sheriff's Dept., 599 So.2d 1353 (Fla. 1st DCA 1992); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), rev. denied, 458 So.2d 271 (Fla. 1984). Both subsections of section 440.15(3)(b), Florida Statutes (1991) took effect on July 1, 1990. Ch. 91-1, § 18, at 61, 63, Laws of Fla. We conclude that the changes to section 440.15(3)(b)2 effected by chapter 91-1, § 18, at 61, Laws of Florida [1] , insofar as they relate to the method by which the employer and the employer's carrier are entitled to prove voluntary limitation of income, constitute a procedural am...

...after July 1, 1990, the effective date of the amendment, including claims by claimants who were injured prior to that date. See Litvin v. St. Lucie County Sheriff's Dept., 599 So.2d 1353, 1355 (Fla. 1st DCA 1992). On the other hand, the amendment to section 440.15(3)(b)5, Florida Statutes [2] , which chapter 91-1, § 18, at 63, Laws of Florida accomplishes, creates a new substantive requirement that may truncate a claimant's entitlement to receive wage-loss benefits, and thus should not be applied retroactively....

...1st DCA 1991); Ralston Purina Co. v. Byers, 457 So.2d 1138 (Fla. 1st DCA 1984); Recon Paving, Inc. v. Cook, 439 So.2d 1019, 1021 (Fla. 1st DCA 1983). We conclude that the judge of compensation claims was under no obligation to make findings of fact under section 440.15(3)(b)5, Florida Statutes (1991), because the statute afforded no basis, at the time of his injury, for permanently barring McCarthy's receipt of wage-loss benefits....

...92, and that "deemed earnings" should be imputed in the amount specified for that period. [3] The parties' other arguments are without merit. The order of the judge of compensation claims is affirmed. BOOTH, MICKLE and BENTON, JJ., concur. NOTES [1] Section 440.15(3)(b)2, Florida Statutes (1991), advanced by McCarthy, provides that: beginning on the 13th week after the employee has attained maximum medical improvement, if an employee does not obtain and maintain employment, the employer may show...

...h case the amount the employee is able to earn may be deemed to be the amount the judge of compensation claims finds the employee could earn in such jobs. The amount shall be applied against the next three biweekly payments. (Emphasis supplied.) [2] Section 440.15(3)(b)5, Florida Statutes (1991), relied upon by the employer and its carrier, provides in pertinent part that: the right to wage-loss benefits shall terminate if, within a 2-year period, there are three occurrences of any of the following incidents: .......

...(Emphasis supplied.) [3] The order recites that "jobs were available within the claimant's restrictions that would pay between $5.00 and $6.00 an hour." This finding is supported by competent substantial evidence and is a sufficient foundation under the 1991 version of section 440.15(3)(b)3, Florida Statutes, for the judge's order imputing income to McCarthy of $200.00 per week for the period February 21, 1992, through December 25, 1992, the last date reflected on McCarthy's wage-loss forms.

...On cross-appeal, claimant raises three issues: (1) whether the JCC erred in applying the "deemed earnings" provision to claimant's wage-loss benefits; (2) whether the JCC erred in applying the deemed earnings provision after applying the notice provision for a work search under the 1990 version of section 440.15, Florida Statutes, when claimant was injured in February of 1990; and (3) whether the JCC erred in allowing social security retirement benefits to offset a retroactive award of wage-loss benefits to claimant....

...ings provision. In order for the deemed earnings provision to apply, the employee must have voluntarily limited his income, failed to accept employment commensurate with his abilities, or have been terminated from employment by his own misconduct. §§ 440.15(3)(b)2 and (4)(b), Fla....

...accordance with the above-cited authorities. On remand, we remind the JCC that the amount of deemed earnings is the amount that would have been earned if the employee had not limited his income, not the amount claimant voluntarily decides to earn. §§ 440.15(3)(b)2 and 440.15(4)(b), Fla....

...ment benefits, even though the E/C did not assert the right to offset until the pretrial stipulation on March 24, 1992. We hold the JCC erred. This court previously held in Horton v. Martin Memorial Hospital, 610 So.2d 1352 (Fla. 1st DCA 1992), that section 440.15(9)(c), Florida Statutes, [3] does not authorize entry of an order for recovery of excess compensation benefits paid during a period in which the E/C should have reduced them on account of contemporaneous social security payments, but did not....

...Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980). The right to offset may not be exercised retroactively, and an E/C may reduce compensation benefits to account for social security benefits only prospectively, as of the date it exercises their right under section 440.15(9)(c)....

...NOTES [1] Claimant planned to earn the maximum amount permitted by law ($124 per week) and still receive social security retirement benefits. [2] There is no evidence that claimant had been terminated from employment by his own misconduct. [3] Formerly section 440.15(10)(c), Florida Statutes.

...District Court of Appeal of Florida, First District. July 16, 1982. Rehearing Denied August 20, 1982. Barry M. Salzman, St. Petersburg, for appellant. Kathleen R. Hudson, St. Petersburg, for appellees. PER CURIAM. In this workers' compensation appeal the claimant argues that Section 440.15(3)(a)3, Florida Statutes (1979), as implemented by Section 440.15(3)(b)1, denies substantive due process of law because it restricts the evaluation of permanent physical impairment to the American Medical Association's Guides to the Evaluation of Permanent Impairment....

...Based on his own experience as an orthopedic surgeon and upon an alternative guideline, Dr. Sullivan opined that the claimant had a thirty percent (30%) permanent partial impairment rating as a result of his knee injury. Since this particular injury (a knee joint injury) is covered by the Guides, Sections 440.15(3)(a)3 and 440.15(3)(b)1, Florida Statutes (1979), are constitutional as applied....

...Staver of Staver & Associates, Orlando, for Appellants. D. Paul McCaskill, Orlando, for Appellee. Randy D. Ellison, West Palm Beach, for Amicus Curiae Academy of Florida Trial Lawyers. PER CURIAM. This case involves the social security disability offset authorized in section 440.15(10), Florida Statutes (Supp.1994), and the benefit cap arising under section 440.20(14), Florida Statutes (Supp.1994), as interpreted by the Florida Supreme Court in Escambia County Sheriff's Dep't v....

...Lab. [1] The E/C sought to offset claimant's workers' compensation benefits paid and payable by approximately $151.90 per month, the amount that the three benefits exceed the claimant's $1,118 monthly AWW. Dixon successfully replied that based upon section 440.15(10), the cap should be 80 percent of his ACE, or $1,666.40, which would yield no offset to *639 the E/C because this amount surpasses his monthly AWW of $1,118. The E/C contends on appeal that Grice is controlling and allows offsets for combined benefits in excess of 100 percent of AWW. Dixon argues that section 440.15(10) controls and that Grice did not address this issue....

...fits overpassing his AWW. Nevertheless, because Grice did not address this issue, we question whether its holding is applicable to cases such as that on appeal in which the claimant's ACE exceed his AWW. Our concern arises from the clear language of section 440.15(10), which expressly prohibits an E/C from reducing workers' compensation benefits to a greater extent than the Social Security Administration could reduce SSD benefits under 42 U.S.C. section 424a, as well as the historical application of the SSD offset. Section 440.15(10)(a), Florida Statutes (Supp.1994), provides, in pertinent part, as follows: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...such month, and (4) such periodic benefits payable (and actually paid) for such month to *640 such individual under such law or plans, exceeds ... (5) 80 per centum of his "average current earnings[.]" We agree with Dixon that the clear language of section 440.15(10), when coupled with 42 U.S.C....

...a state workers' compensation SSD offset provision, to take an offset to the extent that combined SSD and workers' compensation benefits exceeded 80 percent of the worker's ACE. In 1973, Florida amended its workers' compensation law to allow, under section 440.15(10), E/Cs instead of the Social Security Administration to take the SSD offset....

...teral sources, as expressed in Grice, can be applied so as to limit a claimant's total benefits to 100 percent of his or her AWW regardless of the claimant's ACE. It is clear that if the only two benefits involved were workers' compensation and SSD, section 440.15(10) would apply and the E/C would be entitled to an SSD offset based on the greater of 80 percent of ACE or AWW....

...In a situation involving benefits in addition to compensation and SSD, if application of the 100 percent AWW cap arising under section 440.20(14) appears to reduce total benefits to less than 80 percent of a worker's ACE, such reduction of workers' compensation benefits appears to violate section 440.15(10), as well as 42 U.S.C....

...loss benefits. He asserts that the deputy commissioner (dc) erred by failing to include in the determination of his AWW the value of employer-provided transportation. He also contends that the dc improperly applied the "deemed earnings" provision of section 440.15(3)(b)2, Florida Statutes (1981), in calculating his wage loss....

...Davis of Fowler, White, Gillen, Boggs, Villareal and Banker, Tampa, for appellants. George J. Adler, P.A., Orlando, for appellee. ERVIN, Judge. The appellant employer/carrier (e/c) appeals the final order of the deputy commissioner (dc), arguing that Section 440.15(3)(b)3.a., Florida Statutes (1986), statutorily bars an award of wage-loss benefits for the period following the claimant's release from incarceration....

...5, but denied them for the period of time that claimant was incarcerated and therefore unable to conduct a work search. [1] The e/c contends that the award of wage-loss benefits for the period following the claimant's incarceration is improper under Section 440.15(3)(b)3.a., which provides: *1266 3....

...if a claimant fails to establish his entitlement to wage-loss benefits for any reason, he cannot, for purposes of the statute, be considered as one for whom "wage-loss benefits shall have been payable." One's entitlement to wage-loss benefits under section 440.15(3)(b)1 is determined by comparing the amount of income a claimant is able to obtain after reaching MMI with his pre-injury earnings. The purpose of the subsection is to compensate for the injury, while not overcompensating a claimant who is able to secure adequate earnings. [2] A reasonable interpretation of the statutory language, referring to benefits "payable", found in section 440.15(3)(b)3.a....

...stitutionality. See City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984). We recognize that the above construction may not be consistent with the legislative *1267 purpose. As originally enacted by Chapter 79-40, § 10, Laws of Florida, section 440.15(3)(b)3....

...ond the worker's control preclude him from conducting an adequate work search or otherwise establishing his entitlement to wage-loss benefits, is, as previously observed, fraught with serious constitutional impediments. Accordingly, we conclude that section 440.15(3)(b)3.a., which terminates the right to wage-loss benefits after the passage of the requisite two-year statutory period unless during such time wage-loss benefits were payable for three consecutive months, can mean only that such bene...

...income. In so holding, we do not say that the employee's burden of establishing his entitlement to wage-loss in a given case, by failing to conduct a job search or otherwise, is now lessened. We say only that in order for the statutory limitation of section 440.15(3)(b)3.a....

...owski, Herzog, Butler, and Gokel, The 1979 Florida Workers' Compensation Reform: Back to Basics, Fla.St.U.L.Rev. 640, 651 (1979) (footnote omitted). [3] Following the submission of the initial briefs of the parties, addressed to the statutory bar of section 440.15(3)(b)3.a., we asked the parties to brief and orally argue the constitutionality of the statute, directed specifically to the questions of whether the statute has the effect of barring one's right to access to courts, or whether it impl...

reemployment at a reasonable cost to the employer." § 440.015, Fla.Stat. (Supp.1994). Thus, our workers' compensation

...out any evidentiary basis. Upon the filing of Santos' claim requesting a determination of the proper offset amount, it was incumbent upon the JCC to take evidence from the e/c in support of the appropriateness of any amount taken, in accordance with section 440.15(9), Florida Statutes....

...Rudicell, Florida Dept. of Labor and Employment Sec., Tallahassee, for appellee. ZEHMER, Judge. Claimant, Mary Shipp, appeals the deputy commissioner's order denying her claim for additional weekly compensation benefits (supplemental benefits) under section 440.15(1)(e)1, Florida Statutes (1981)....

...ity until the expiration of Employee's life." The Florida Workers' Compensation Trust Fund was not a party to these settlement agreements. Prior to the approval of the joint stipulation, claimant had been receiving supplemental benefits, pursuant to section 440.15(1)(e)1, Florida Statutes (Supp....

...benefits of a `washout' settlement, and on the other hand, still maintain the right to receive continued payments of supplemental benefits. It is not within the province of the undersigned to comment upon the wisdom of those provisions contained in Section 440.15(1)(e)1, Florida Statutes, which provide that the supplemental benefits shall be terminated upon the entry of a `washout' settlement, however, the undersigned does believe that it is his duty to rule on this case in accordance with the intent of that provision. Therefore, when considering the overall effect of the agreements entered into by the parties, and the apparent intent of Section 440.15(1)(e)1, Florida Statutes, the Fund did have the right to terminate the claimant's supplemental benefits....

...We concur with the deputy commissioner that the joint petition stipulation concerning medical benefits and the oral stipulation regarding permanent total disability benefits constitute a washout settlement of Shipp's claim, which also terminated claimant's right to continue receiving supplemental benefits. Section 440.15(1)(e)1, Florida Statutes (1981), provides: In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, and for which the liability of the employer for compensation has not been discharged under the provisions of s....

...ent and that no modification should be allowed under section 440.28, Florida Statutes (1981). See section 440.20(12)(a), Florida Statutes (1981), and J.F. Hoff Electric Co. v. Powell, 10 F.L.W. 2624 (Fla. 1st DCA Nov. 22, 1985). Claimant argues that section 440.15(1)(e)1 applies only to "washouts" occurring between June 30, 1955, and October 1, 1974....

...age 65. We affirm. During the attorneys' fee hearing before the JCC, a dispute arose regarding the calculation of benefits and the applicability of this court's statements in Burger King Corp. v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997), concerning section 440.15(1)(e)1., Florida Statutes. Section 440.15(1)(e)1., Florida Statutes (1993), provides that entitlement to permanent total disability (PTD) supplemental benefits "shall cease at age 62 if the employee is eligible for social security benefits under 42 U.S.C....

...ge difference of the parties at the time of the award." The JCC thus found that the value of supplemental benefits after age 65 should not be included in the calculation of benefits secured and awarded fees accordingly. We agree. *52 As noted above, section 440.15(1)(e)1....

...Lauderdale, for Appellant. Robert L. Bamdas of Kelley, Kronenberg, Kelley, Gilmartin & Fichtel, West Palm Beach, for Appellees. BARFIELD, Judge. The claimant seeks review of a workers' compensation order determining that the employer/carrier (E/C) were entitled, under section 440.15(10)(a), Florida Statutes, to take an offset of the permanent total disability (PTD) benefits paid him based upon the amount of Social Security disability benefits he was receiving at the time of his compensable accident in 1983....

...Taylor, dissenting). The temporary total disability benefits awarded properly from September 4 to October 21, 1980 should be calculated in accord with this opinion. In determining whether claimant is eligible for any partial wage-loss benefits under Section 440.15(4), the deputy should use the same recalculated average wage....

...Court of Appeal in Alderman v. Florida Plastering, 748 So.2d 1038 (Fla. 1st DCA 1998): WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)(1), FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? We have jurisdiction....

...Competent substantial evidence supports the JCC's finding that Claimant reached MMI on September 13, 2008. Therefore, competent substantial evidence supports the JCC's denial of TPD benefits from that point through the date of the final hearing. See § 440.15(2)(a), Fla....

...1st DCA 1988), for the rule which has been applied when MMI from an initial compensable injury precedes a second compensable aggravating accident: Since apportionment of claims for temporary disability, medical benefits, and wage-loss benefits is barred by statute, § 440.15(5)(a), ......

...Porter Plastics has a viable defense to the claim. At page 1197 the opinion concludes that earlier cited cases relying on Russell House Movers, Inc. v. Nolin, 210 So.2d 859 (Fla. 1968), plainly were "not intended to preclude ... the consideration of section 440.15(5)(a) in disputes involving multiple carriers" when a subsequent accident has impacted a prior permanent condition. The concurring opinion recites the history of section 440.15(5)(a), formerly 440.02(18), and references Nolin's conclusion of "no logical reason to treat preexisting disability from injury any differently from pre-existing disability resulting from disease or other congenital defect." Cf....

comprehensive scheme constructed by the Legislature. See § 440.015, Fla. Stat. (2007). Rather, the exclusive remedies

...E/C began payment of permanent total disability and supplemental benefits when Claimant was 64 *732 years old. At age 65, the Social Security Administration converted Claimant's disability benefits to retirement benefits. At this same time, E/C terminated payment of supplemental benefits, citing section 440.15(1)(e)1, Florida Statutes (1991), as authority. The JCC found that E/C had correctly ceased payment of supplemental benefits. We disagree, and reverse the JCC's order. As we explained in Burger King Corp. v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997), the unambiguous language of section 440.15(1)(e)1, Florida Statutes, requires that prior to cessation of entitlement to supplemental benefits, a claimant must be eligible for both retirement and disability benefits under the Social Security Act....

...MILLS and THOMPSON, JJ., concur. ON MOTION FOR REHEARING OR CLARIFICATION WENTWORTH, Judge. Motion for rehearing is denied. The award of scheduled benefits is affirmed because the evidence permits a conclusion that only an arm impairment resulted from claimant's shoulder injury. § 440.15(3), Florida Statutes....

...laws provided for the workers' compensation benefits to be reduced when the worker also received Social Security disability benefits, and the state's law so provided on February 18, 1981. Florida Statutes contain a reverse offset provision; however, § 440.15(10)(c) provides that reverse offset does not apply (and no workers' compensation benefits are reduced by Florida) until the SSA determines the amount payable to the employee and the employee has begun receiving such Social Security benefit payments. Fla. Stat. § 440.15(10)(c) (2001). Florida's reverse offset provisions apply until the month the recipient attains age 62. Id. at § 440.15(10)(a)....

...rity's adjudication because Florida would not have taken an offset during that period; and (2) to the period following the month an individual attains age 62, when Florida's reverse offset would cease to apply. See 42 U.S.C. § 424a; Fla. Stat. Ann. § 440.15(10)(a) and (c)....

...Essentially, the SSA is permitted to take an offset pursuant to federal law if a reverse offset does not apply until a benefits recipient reaches age 65. 42 U.S.C. § 424a(a). In Florida, the reverse offset applies until Plaintiff reaches age 62. Fla.Stat. § 440.15(10)....

...isability of the body as a whole. However, the evidence does support the finding that the claimant sustained a permanent disability to his ankle. It is apparent that an ankle injury could be interpreted as either a foot injury or a leg injury. Since Section 440.15(3), Florida Statutes (1973) addresses injuries for the loss of a foot or loss of a leg but makes no mention of loss of an ankle, the JIC should have awarded claimant the most favorable remedy, disability for loss of a foot....

...r concurrent employment as a domestic servant in private homes. They further contend that the finding of a 10% permanent partial disability of the body as a whole is in error because the Deputy Commissioner failed to apply the deduction provision of Section 440.15(5)(c), Florida Statutes....

...basis for allowing increased compensation not properly supported by the law." (opinion at p. 292) Concerning the employer/carrier's argument that the Deputy Commissioner ignored the applicability of merger in this case and the deduction provision of Section 440.15(5)(c), we note the language of the Deputy Commissioner in his order that: Consistent with the medical opinions of Dr....

...f this accident, and that he felt as a result of all of claimant's conditions she had a 10 to 15% permanent partial disability of the body as a whole. Nevertheless, we disagree that this evidence requires a finding of merger and the applicability of Section 440.15(5)(c). We agree with claimant that the controlling provision of Section 440.15(5)(c) is the last sentence which states: However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury or occupational disease if the previous disability had not existed....

...We have for review a decision ruling upon the following two questions *1068 certified to be of great public importance: [1] WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)1, FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? WHEN CALCULATING THE OFFSETS FOR SOCIAL SECURITY DISABILITY AND DISABILITY RETIREMENT BENEFITS PURSUANT TO ESCAMBIA COUNTY SHERIFF'S DEPARTMENT V....

...However, the deputy concluded that the compensation rate should not be increased by the insurance payments. He also held that no penalties should be assessed. The ruling on Reese's compensation rate must be reversed because of the mandatory language of Section 440.15(2)(a), Florida Statutes (1977) that "60 percent of the average weekly wages shall be paid to the employee" during the period of temporary total disability....

...Claimant appeals both of these rulings. Our affirmance of the first ruling requires little discussion, as we recently decided this precise issue. In Burks v. Day's Harvesting, Inc. and Crims, Inc., 597 So.2d 858 (Fla. 1st DCA 1992), we held that: [S]ection 440.15(9)(a) does allow the E/C to take an offset for social security disability benefits attributable to a prior physical condition, when the evidence shows that the claimant was already receiving such social security disability benefits at the time of the compensable injury....

...ility benefits due from the date of eligibility, and commenced paying regular monthly disability benefits. We affirmed the ruling that the employer could not retroactively set off such benefits against workers' compensation benefits, explaining: ... Section 440.15(10)(c) [Florida Statutes (1979)] does not authorize entry of an order for the recovery of "excess" compensation benefits paid during a period in which the employer or carrier should have reduced them, on account of contemporaneous Social Security payments, *1355 but did not....

...We stated: To that extent, the Deputy erred, because the right to setoff may not be exercised retroactively. The carrier may reduce compensation payments to account for social security benefits only prospectively, as of the date it exercises its right under Section 440.15(10), Florida Statutes (1977)....

...On that date, Employer and Carrier administratively changed his status to PTD and began paying him PTD benefits less an offset for the disability benefits he was receiving from Social Security. Thus, December 11, 1990, was the first date Employer and Carrier exercised their right under section 440.15 to take a social security offset against benefits being paid....

...ant's own evidence affirmatively showed there was no change of condition either in terms of physical condition or wage earning capacity. The order denying claimant's petition for modification is AFFIRMED. WENTWORTH and ZEHMER, JJ., concur. NOTES [1] Section 440.15(3)(u), Florida Statutes (1977), provides that "disability" means either physical impairment or diminution of wage earning capacity, whichever is greater.

...Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants. John Marshall Kest of Wooten, Honeywell, Kest & Martinez, Orlando, for appellee. THOMPSON, Judge. This is an appeal from a compensation order awarding wage loss benefits pursuant to § 440.15(3)(b), Fla....

...austive job search and was unable to obtain employment within her limitations, thereby proving her total disability. H.S. Camp & Sons v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984). Contrary to appellants' assertions, we find that the 1990 amendment to section 440.15(1)(b) requiring a 100 mile work search is not applicable. See GCC Beverages v. Simmons, 571 So.2d 59 (Fla. 1st DCA 1990) (1990 amendment to section 440.15(3)(b)2....

...Williamson of Barrs, Williamson & Levens, Tampa, for appellee. PER CURIAM. The primary issue in this workers' compensation appeal is whether the Guides to the Evaluation of Permanent Impairment (AMA Guides) is a mandatory schedule upon which the finding of permanent impairment under Section 440.15(3)(a)3, Florida Statutes (1979), must be based in this case....

...ry basis upon which to measure appellant's entitlement to wage loss benefits, which are intended to compensate the claimant for actual wage loss resulting from a permanent impairment. R.E. Dailey Company v. Dorman, 509 So.2d 377 (Fla. 1st DCA 1987); Section 440.15(3)(b)....

...n Act, under which the amount of compensation payable to a claimant who had suffered permanent partial disability in a compensable accident was in most cases directly determined by the percentage of disability attributable to the compensable injury. § 440.15(3), Florida Statutes (1977)....

reemployment at a reasonable cost to the employer.” § 440.015 (emphasis added). And chapter 440 sets forth a

...JOANOS, Chief Judge. The employer and carrier in this workers' compensation case appeal an order of the judge of compensation claims denying unilateral application of a social security disability setoff. Employer and carrier contend the setoff provision of section 440.15(9), Florida Statutes, is mandatory and self-executing, and authorizes employer/carrier to take a unilateral setoff for social security benefits....

...yment of $30.77 for the permanent total disability award. Claimant filed a claim to enforce the full amount of the 1986 compensation award. Employer/carrier defended on the ground that the social security setoff was taken properly in accordance with section 440.15(10) [now (9)], Florida Statutes (Supp....

...ly. The judge of compensation claims found that without a modification order, employer/carrier were without authority to reduce claimant's permanent total disability payments, and granted the claim for enforcement of the 1986 compensation order. The section 440.15(9)(a) [formerly subsection (10)(a)] social security offset is mandatory, if the combined workers' compensation and social security benefits exceed eighty percent of the worker's salary....

...ulation of the amount of the setoff, but concluded that this possible benefit to the employee would not outweigh the additional expense and delay it would impose upon the employer. 543 So.2d at 1255-1256. The court held that "the setoff provision in section 440.15(9) is self-executing in nature and therefore, can be taken unilaterally by the employer." 543 So.2d at 1256....

...440.09, contains the following general and basic provision: “Compensation shall be payable under this Act in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment.” But the Act has a specific provision relating to hernia in Section 440.15, F.S....

...So neither of those cases sustains the holding of the Commission in this case, or of the circuit court which *818 affirmed it; nor can such action be upheld by this Court unless we disregard the safeguards which the Legislature saw fit to throw around hernia claims in paragraph 6 of Section 440.15, Fla....

...rom the guardianship account. Finally, we turn to that portion of the order which directed that the award of attendant care benefits would be reduced by the amount of the permanent total disability benefits. Permanent total disability benefits under Section 440.15(1), Florida Statutes (1989), and attendant care benefits under Section 440.13(2), Florida Statutes (1989), serve entirely different purposes....

...He found Joyner entitled to wage loss and medical benefits at Nationwide's expense from MMI and ordered Nationwide to reimburse Aetna for benefits paid by Aetna after MMI. He ordered Nationwide to pay Joyner's attorney's fees. Nationwide argues apportionment is barred by Section 440.15(5)(a), Florida Statutes (1981). Consequently, it contends, Aetna's liability for temporary disability and medical benefits prior to MMI necessarily established Aetna's liability for benefits following MMI. Although Section 440.15(5)(a) bars apportionment of temporary disability, medical, and wage loss benefits between a claimant and an employer/carrier, it does not apply to liability disputes between carriers....

...3d DCA 1983); Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969); Phoenix Assurance Co. of New York v. Merritt, 160 So.2d 552 (Fla. 2d DCA 1963), cert. denied, 168 So.2d 147 (Fla. 1964), notwithstanding the appellant-carrier's contention that under Section 440.15(1)(d), it was justified in unilaterally suspending compensation to the claimant where subsequent to the entry of the order the claimant had become rehabilitated to the extent that his earnings from employment disentitled the claimant to either compensation payments or any wage loss benefits under Section 440.15(3)(b)....

...BK-284: We reverse the order awarding PTD benefits, finding that there is no competent, substantial evidence to support the award of PTD. PTD compensation cannot be awarded if a claimant is "engaged in or is physically capable of engaging in gainful employment... ." Section 440.15(1)(b), Florida Statutes....

...g compensation order or to resolve factual disputes between the parties. Benedict v. Executive Risk Consultants, Inc., 616 So.2d 525 (Fla. 4th DCA 1993); Venne v. Kleuver, 435 So.2d 350 (Fla. 3d DCA 1983) rev. denied, 443 So.2d 979 (Fla.1984). Under section 440.15(10), Florida Statutes (1995), Promo Graphics was authorized unilaterally to reduce Mr....

...On appeal, the employee urged that the employer had no authority to reduce the amount of the payment indicated in the compensation order without prior approval from the workers' compensation court. The supreme court disagreed, explaining that such setoffs were mandatory under both the United States Code and section 440.15. The court reasoned that, "[s]ince both the Florida employer and the Social Security Administration rely on the same information in determining the applicability of the setoff," the setoff provision in section 440.15(10) is self-executing and can be applied unilaterally by the employer....

...shall not be issued ... to enforce the terms of such order.... The issue is whether Promo Graphics defaulted on its obligation to make payments under the terms of the compensation order, thereby invoking the circuit court's Rule nisi jurisdiction. Under section 440.15(10), Florida Statutes (1995), Promo Graphics was authorized unilaterally to reduce Mr....

...On appeal, the employee urged that the employer had no authority to reduce the amount of the payment indicated in the compensation order without prior approval from the workers' compensation court. The supreme court disagreed, explaining that such setoffs were mandatory under both federal law and section 440.15. The court reasoned that, "[s]ince both the Florida employer and the Social Security Administration rely upon the same information in determining the applicability of the setoff," the setoff provision in section 440.15 is self-executing and can be unilaterally applied by the employer....

...unts deducted by the carrier are improper, a Rule nisi, with its attendant remedies, should be available to the injured worker to obtain payment. The fact that these issues are arcane does not equate to lack of subject matter jurisdiction. NOTES [1] Section 440.15(10) was enacted to prevent an injured worker from receiving windfall benefits from the receipt of both social security benefits and workers' compensation benefits....

...Williams, was temporarily unable to work because of injuries that miscreants maliciously or intentionally inflicted when he sought to apprehend them. He appeals an order refusing to decide his claim against the City of Fort Walton Beach for the "full pay status" contemplated by section 440.15(11), Florida Statutes (1991)....

...[1] The order on appeal determined the claim "to be outside the jurisdiction of the Judge of Compensation Claims." We affirm. Mr. Williams' entitlement to temporary total workers' compensation disability benefits—at sixty-six and two-thirds per cent of average weekly wages—is not in dispute. § 440.15(2), Fla.Stat....

...intentional injuries sustained in the course and scope of their employment, they receive the equivalent of their full salaries. "Full pay status" also presumably entails benefits incident to full-time employment, including ongoing accrual of leave. Section 440.15(11), Florida Statutes (1991), provides: FULL-PAY STATUS FOR CERTAIN LAW ENFORCEMENT OFFICERS.— Any law enforcement officer as defined in s....

...Insofar as pertinent here, law enforcement officers maliciously or intentionally injured while employed by the State of Florida differ from other state employees only in that their leave balances are not reduced if it is determined they are able to resume their duties. Properly understood, section 440.15(11), Florida Statutes (1991), operates as a limitation on compensation benefits rather than as authorization for the judge of compensation claims to adjudicate questions pertinent only to other aspects of the employment relationship. The first four subsections of section 440.15, Florida Statutes (1991)(" Compensation for disability ") authorize different types of benefit payments, [3] to be sure....

...al rights, even though the value of those rights may have to be measured by comparison to worker's compensation benefits." Rudolph v. Miami Dolphins, Ltd., 447 So.2d 284 (Fla. 1st DCA 1983). Affirmed. BARFIELD, C.J., and ERVIN, J., concur. NOTES [1] Section 440.15(11), Florida Statutes (1991), was renumbered as section 440.15(12), Florida Statutes (Supp.1994). Ch. 93-415, § 20, at 131, Laws of Fla. The parties' stipulation refers to section 440.15(12)....

...Betts, 407 So.2d 377 (Fla. 1st DCA 1981). The City has paid workers' compensation benefits in full in the present case. The claimant contends that the judge of compensation claims should award "full pay status" in addition to the benefits paid pursuant to section 440.15(2), Florida Statutes (1991), and does not contend that other benefits have been misapplied. [3] Section 440.15(1), Florida Statutes (1991), authorizes benefits in cases of permanent total disability; subsection (2) authorizes benefits in cases of temporary total disability; subsection (3) establishes impairment and wage-loss benefits for claimants with certain permanent impairments; subsection (4) provides for benefits in cases of temporary partial disability; and subsection (5) addresses apportionment of benefits in cases of subsequent injuries. [4] Section 440.15(6), Florida Statutes (1991), denies compensation to injured employees who unjustifiably refuse suitable employment; subsection (7) limits temporary partial disability benefits for employees who leave employment without complying with c...

...1st DCA), petition for review denied, 451 So.2d 850 (Fla. 1984). The 1979 amendment to the statute relating to permanent disability now requires that the determination of the existence and degree of permanent impairment be based upon medically or scientifically demonstrable findings. Section 440.15(3)(a)(3), Fla....

...her the JCC erred in denying temporary total disability (TTD) and/or temporary partial disability (TPD) benefits for the period of October 20, 1992, through December 7, 1992; and (2) whether the JCC erred in applying the deemed earnings provision of section 440.15, Florida Statutes, against the claimant's entitlement to TPD benefits after January 31, 1993....

...h January 31, 1993. Nevertheless, because the JCC made no findings regarding her entitlement to benefits for the period in question, we must remand. The second issue raised on cross-appeal involves the application of the deemed earnings provision of section 440.15(4)(b), Florida Statutes, to the claimant's entitlement to TPD benefits after January 31, 1993, and until July 15, 1993, the date of the hearing....

...The JCC determined that the claimant met her initial burden of showing a causal relationship and specifically found that she was entitled to temporary partial compensation from February 1, 1993, through July 15, 1993, the date of the hearing. The JCC then applied the deemed earnings provision of section 440.15(4)(b) as an offset against her entitlement to benefits because no medical verification existed as to total disability after January 31, 1993, and the claimant's failure to work 20 hours per week constituted voluntary limitation of income....

...the employee was able to earn for such period ... is the amount which would have been earned if the employee had not limited his income or failed to accept appropriate employment or had not been terminated from employment due to his own misconduct." § 440.15(4)(b), Fla....

...e claimant refused to work or voluntarily limited her income. Albertson's, Inc. v. Natale, 555 So.2d 946, 949 (Fla. 1st DCA 1990); see Church's Fried Chicken v. Maloney, 599 So.2d 706, 710 (Fla. 1st DCA 1992) (construing deemed earnings provision in section 440.15(3)(b); E/C has burden to show "appropriate employment was available and claimant refused an available job within his restrictions during the relevant period of the award")....

...ry partial disability, or permanent wage loss benefits, evaluation and treatment through a rehabilitation program, and costs and attorney's fees. Employer and carrier acknowledge that they owe claimant temporary total disability benefits pursuant to section 440.15(2), *400 Florida Statutes (1987), from May through August of 1987, so the order must be reversed to the extent that it denies temporary total disability benefits for that period....

...Claimant requested either temporary partial disability benefits (temporary wage loss benefits) [2] or permanent wage loss benefits [3] as an alternative to temporary total disability or permanent total disability benefits. To be entitled to temporary partial disability benefits pursuant to section 440.15(4), an injured employee must have partially recovered his ability to work but must not have reached maximum medical improvement....

...O'Blocki, 496 So.2d 947 (Fla. 1st DCA 1986). An injured employee who has reached maximum medical improvement and is suffering from a permanent impairment, but is only partially disabled from working, may be entitled to permanent wage loss benefits pursuant to section 440.15(3)(b)....

...es (Casa Colina), and to pay claimant temporary total disability benefits until he completed the Casa Colina treatment and continuing thereafter so long as he remained temporarily totally disabled. Employer and carrier did not appeal this order. [2] § 440.15(4)(a), Fla. Stat. (1987). Temporary partial disability benefits are based on actual wage loss suffered during the period of such temporary disability. [3] Wage loss benefits pursuant to section 440.15(3)(b) may be referred to as "permanent" be cause the claimant receiving such benefits must have reached maximum medical improvement with some permanent impairment....

...ith vocational factors.” Although LaPointe applied the pre-1994 version of the PTD statute, we have acknowledged that the prior case law is instructive because the current PTD statute is similar. Ferrell Gas, 982 So.2d at 37 . Under the version of section 440.15(l)(b) applicable to this 2004 date of accident, a claimant not presumptively PTD based on a listed injury “must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” § 440.15(l)(b), Fla....

...Grice. In fact, there is statutory authority suggesting that supplemental benefits should be excluded from the cap because supplemental benefits are capped not at the claimant's average weekly wage, but at the higher maximum compensation rate under section 440.15(1)(f)1, Florida Statutes (1995). To subject supplemental benefits to the Grice cap would render section 440.15(1)(f)1 meaningless....

...the date of the Grice decision. He asserts that the employer and servicing agent were limited to taking the offset prospectively from October 15, 1999, the date on which they first asserted the right to take it. We reject this position. Pursuant to section 440.15(13), Florida Statutes (1995), a claimant is required to repay any benefit to which he or she is not entitled. Based on that statute, we have held that an employer and carrier are entitled to take a Grice offset retroactively to May 1, 1997. Pickard, 778 So.2d at 301; Santa Rosa County Sch. Bd. v. Howard, 745 So.2d 1132 (Fla. 1st DCA 1999). Section 440.15(10)(c), Florida Statutes (1995), addresses only social security offsets. It does not apply to Grice offsets. There is no other statutory authority which suggests that section 440.15(13) does not apply in situations such as this....

...ew of the evidence adopted by the majority. I would affirm the JCC's conclusion that the hernia surgery and period of temporary total disability while claimant was recuperating from such surgery were not caused by the incident in question. NOTES [1] Section 440.15(5)(a), Florida Statutes (1989), precludes apportionment of medical and temporary disability benefits....

...o do, we certify to the supreme court the same question that we certified in that case: WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFFSET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)1, FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? [*] In addition, we certify the following question, as one of great public importance: WHEN C...

...IV. For the foregoing reasons, the decision of the judge of compensation claims is affirmed. AFFIRMED. BARFIELD, C.J. and BENTON, J., CONCUR. NOTES [*] Because the claimant in this case was injured in 1987, the 1987 version of sections 440.20(15) and 440.15(1)(e)1, rather than the 1985 version, applies....

...When calculating the offset, a claimant's initial compensation rate and PTD supplemental benefits should be considered. Because the JCC's offset calculation fails to include the amount of PTD supplemental benefits to which claimant was first entitled in 1989 under section 440.15(1)(e)1, Florida Statutes (Supp.1986), we reverse the order only to such extent and remand with directions to recalculate the offset by including the 1989 supplemental benefit in the calculation....

...irement, and PTD benefits based on the 100 percent AWW cap at the July 3, 197, hearing. In accordance with the Grice decision, the E/C in the present case would be entitled to an offset only from the time it was first asserted. Nevertheless, because section 440.15(13), Florida Statutes (Supp.1994), was amended to require claimant to repay any benefit to which he or she is not entitled, and Grice provided the necessary authority for applying the 100 percent AWW cap and resultant offset to the com...

...Christopher B. Young, St. Petersburg, for Appellant. Daniel J. Ewin, of Dubbeld & Kaelber, P.A., St. Petersburg, for Appellees. *126 KAHN, J. In this case, the Judge of Compensation Claims (JCC) denied claimant's petition for impairment benefits under section 440.15(3)(a), Florida Statutes (1999), because claimant had not yet reached maximum medical improvement (MMI) for her psychiatric condition and had received only 36 weeks of temporary disability benefits. Contrary to claimant's arguments on appeal, the JCC's order follows both the workers' compensation statutes and our previous decisions. Section 440.15(3)(a)3., Florida Statutes (1999), states that an "employee's entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits." Section 440.15(3)(a)4....

...ensation Claims ("JCC"). The employer and carrier (E/C) paid claimant temporary disability benefits from the date of his injury, July 7, 1998, to the date he reached maximum medical improvement ("MMI") for his physical conditions, April 8, 1999. See § 440.15(2), Fla. Stat. (Supp.1998). After claimant reached physical MMI, E/C paid him permanent impairment benefits. See § 440.15(3), Fla....

...Accordingly, we affirm in part and reverse in part, and certify the following question: WHERE AN EMPLOYER TAKES A WORKERS' COMPENSATION OFF-SET UNDER SECTION 440.20(15), FLORIDA STATUTES (1985), AND INITIALLY INCLUDES SUPPLEMENTAL BENEFITS PAID UNDER SECTION 440.15(1)(e)(1), FLORIDA STATUTES (1985), IS THE EMPLOYER ENTITLED TO RECALCULATE THE OFFSET BASED ON THE YEARLY 5% INCREASE IN SUPPLEMENTAL BENEFITS? BOOTH, BENTON and PADOVANO, JJ., concur.

...Santos Garcia suffered an industrial injury on July 5, 1990, and reached maximum medical improvement (MMI) on November 21, 1990. He has performed an unsuccessful search for employment, which the carrier has not questioned. The carrier calculated Garcia's wage-loss benefits based on section 440.15(3)(b), Florida Statutes (Supp....

...1990), which states that wage-loss benefits "shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages and other remuneration the employee is able to earn after reaching maximum medical improvement." Prior to the amendment of the statute in 1990, section 440.15(3)(b), Florida Statutes (1989) provided that wage-loss benefits equal 95% of the difference between 85% of the average weekly wage and any post-MMI earnings. The judge of compensation claims approved the carrier's application of section 440.15(3)(b), Florida Statutes (Supp....

...al session to address the constitutional problems of the 1990 Act. The legislature corrected the single subject problem by separating the law into two distinct bills and reenacting both laws. [*] The legislature expressly provided that the 1991 Act, section 440.15(3)(b), Florida Statutes (1991), would be applied retroactively to July 1, 1990, the original effective date of the 1990 Act....

...We answer the first certified question in the affirmative, and therefore we do not reach the second question regarding the constitutionality of the retroactivity provision in the 1991 Act. Given our holding in Scanlan, we approve the district court's decision to apply section 440.15(3)(b), Florida Statutes (Supp....

...event or exposure. Thus, the claimant was entitled to the presumption that his PVD was caused by his occupation as a firefighter. PTD Benefits A claimant is entitled to PTD benefits only if he can show that he has suffered a catastrophic injury. See § 440.15(1)(b), Fla....

...July 3, 1974. III. Whether the Judge of Industrial Claims erred in awarding permanent disability to the right hand where injury was confined to the right thumb, a scheduled member for which permanent disability benefits are exclusively prescribed by § 440.15(3)(f), Fla....

...Thus, the effect of the injury on the hand would have been covered by the scheduled compensation. The Judge of Industrial Claims should have limited the disability rating to the scheduled compensation for disability of the thumb itself as prescribed by § 440.15(3), Fla....

...The second point raised by the carrier is whether the deputy commissioner erred in awarding compensation for a 50% permanent partial disability which was not based on the American Medical Association's Guides to the Evaluation of Permanent Impairment as required by section 440.15(3)(a)(3), Florida Statutes (1979). We agree that the deputy's ruling on this point was error. The order shows that the award was based on physical impairment alone, not loss of wage earning capacity. Section 440.15(3)(a)(3) requires that the Guides be used to determine the percentage of physical impairment....

...He concluded that she had voluntarily limited her income, that she is capable of earning $4.00 per hour or $160 per week, and that she should be paid temporary partial disability benefits based upon a deemed earning capacity of that amount, pursuant to Section 440.15(3)(b)2, Florida Statutes....

...*860 Further, the deputy commissioner's application of "deemed earnings" for the period after September 1987 was improper since the unrefuted medical evidence established that appellant was unable to work after that time due to her unrelated vertigo condition. Application of the deemed earning provision of 440.15(3)(b)2 is limited to those situations in which the employee "voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities." See Brookings v....

...SCHOOL BOARD OF NASSAU COUNTY and American Guaranty and Liability, Appellees. No. BH-161. District Court of Appeal of Florida, First District. May 13, 1986. *872 Jack W. Bettman, Jacksonville, for appellants. M. Wayne Myers, of Coker, Myers and Schickel, Jacksonville, for appellees. BARFIELD, Judge. Appellants assert that section 440.15(5), Florida Statutes (1979), as interpreted by this court in Structural Systems, Inc....

...the claimant engineering a windfall by reaching a washout settlement with the carrier at risk at the time of the second accident and then proceeding successfully against the carrier at risk at the time of the prior compensable accident. We construe section 440.15(5) to require the carrier at risk at the time of the accident to either controvert the claim as noncompensable or to pay all temporary disability and medical benefits due before MMI....

...Structural Systems contains language to the effect that the 1979 amendments made changes which prohibit apportionment between carriers. This language is erroneous and totally unnecessary to the result reached in Structural Systems, and should be disregarded. The deputy commissioner's order, finding that section 440.15(5) does not bar apportionment of benefits in liability disputes between two carriers, is AFFIRMED....

...Mary O'Neil seeks review of the decision from the District Court of Appeal, First District, in O'Neil v. Department of Transportation, 442 So.2d 961, 963 (Fla. 1st DCA 1983), which certified the following question to be of great public importance: Does Section 440.15(3)(b)3.d., Florida Statutes (1979), violate the supremacy clause of the United States Constitution because it conflicts with the Federal Age Discrimination in Employment Act, 29 U.S.C....

...lated injuries occurring on May 17, 1980. The deputy commissioner denied her request for permanent total disability benefits finding no competent or substantial evidence of the claimant's inability to return to work. The commissioner also found that section 440.15 precludes the recovery of wage loss benefits when the claimant is over the age of 65 and is receiving social security benefits....

...1st DCA 1983). The district court's decision in Sasso was subsequently approved by this Court in Sasso v. Ram Property Management, 452 So.2d 932, 934 (Fla.), appeal dismissed, ___ U.S. ___, 105 S.Ct. 498, 83 L.Ed.2d 391 (1984). In that case, we held that section 440.15(3)(b)3.d. did not deny access to the courts or unconstitutionally discriminate on the basis of age. On rehearing, the First District, in the present case, also held that section 440.15(3)(b)3.d....

...here, the benefits are not paid by the state unless a government body is the self-insured employer. See § 440.38(1). Wage loss benefits, which are at issue here, are paid solely and directly by the employer/insurance carrier to the employee. See §§ 440.15(3)(b) and 440.20(4)....

...n-employer, furnishes benefits, the costs of the benefits and the administration of the system are assessed against self-insured employers and insurance carriers. Such payments by the division are made from separately administered trust funds. See §§ 440.15(1)(e), 440.49(2)(h), 440.50, 440.51, Fla....

...In Sasso v. Ram Property Management, 452 So.2d 932 (Fla.), appeal dismissed, ___ U.S. ___, 105 S.Ct. 498, 83 L.Ed.2d 391 (1984), we approved the district court's decision in Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), which held that section 440.15(3)(b)3.d., Florida Statutes (1979), did not deny access to the courts or unconstitutionally discriminate on the basis of age....

...This reasoning is faulty on two counts. First, it suggests that the state, as an employer, could evade EEOC v. Wyoming and the ADEA by enacting a statute based on its police power. Second, it suggests that the police power of the state is exempted from the supremacy clause. If section 440.15(3)(b)3.d....

...Jurisdiction is hereby reserved to consider an application for a fee under F.S. 440.34(3)(b). After careful consideration of the record, we conclude that the findings of fact are supported by competent substantial evidence and that the conclusions of law accord with section 440.15, Florida Statutes (1987), and the relevant court decisions construing and applying chapter 440....

...Rule 38F-3.0191(9), Florida Administrative Code (2001), in pertinent part, provides: The carrier may require information from the employee concerning the employee's receipt of wages, unemployment compensation benefits, or Social Security benefits by sending the employee a copy of Form DWC-19, pursuant to Section 440.15(8), (10) and (11), F.S.......

...Background Claimant suffered a compensable injury on March 6, 2003, which resulted in a 24% permanent impairment rating. Claimant filed petitions for benefits seeking supplemental income benefits (a form of wage loss benefit payable to injured workers who, inter alia, sustain a permanent impairment of 20% or greater). See § 440.15(3)(a)-(d), Fla....

...The JCC, although finding Claimant suffered a 24% permanent impairment and sustained injuries which prevented Claimant from performing his prior job, denied supplemental benefits because Claimant failed to demonstrate a good faith job search, as required by section 440.15(3)(b)1.c., Florida Statutes (2002)....

...See, e.g., Sanchez v. Howard Johnson, 661 So.2d 379 (Fla. 1st DCA 1995). We have yet to address, however, the burden of persuasion concerning the notice requirements pertaining to an employee's entitlement to supplemental income benefits pursuant to section 440.15(3)(b), Florida Statutes (2002)....

...required, whether he has been advised by the employer, carrier, servicing agent, or his attorney, shall result in benefits not being payable during the time that the employee fails to timely file his request for wage loss and the job search reports. § 440.15(3)(b)2., Fla....

...ob search requirement. See Kilbourne & Sons v. Kilbourne, 677 So.2d 855, 858 (Fla. 1st DCA 1995); see also Marbury v. Holiday Inn, 660 So.2d 799, 800 (Fla. 1st DCA 1995). The statutory provision at issue here relates to supplemental income benefits. § 440.15(3)(b), Fla....

...for all months for which the employee was not provided the form. Payment shall be computed as if the employee had $0 earnings. The Carrier may later obtain repayment of any overpayment in accordance with paragraph (3)(d) of this rule and pursuant to s. 440.15(13), F.S....

simplified this court’s job by specifying in section 440.015, Florida Statutes (2006), that “[i]t is the

...Burke, of Pitts, Eubanks, Ross & Rumberger, Orlando, for respondents. ENGLAND, Justice. By petition for the writ of certiorari we have before us for review an order of the Industrial Relations Commission dismissing a claim for rehabilitation benefits made by John M. Keith. The claim was made pursuant to Section 440.15(2)(b), Florida States (1975), which in relevant part provides that "Temporary total disability ......

...dustrial claims which had granted rehabilitation benefits, on the ground that the judge lacked jurisdiction to award benefits without the participation of the Department of Commerce's division of labor. We affirm the Commission's order of dismissal. Section 440.15(2)(a) provides that 60% of average weekly wages shall be paid during a period of temporary total disability. Section 440.15(2)(b) indicates that the period during which temporary total disability benefits may be paid shall include, so far as is relevant here, the period during which an employee is receiving training or education under a prescribed rehabilitation program....

...It is this last provision which is troublesome. Petitioner Keith argues that since the division is not an indispensable party when no "claim" is made against the fund, the term must mean a claim for the payment of vocational rehabilitation benefits as provided in Section 440.15(2)(b)....

...Appellee's job search was inadequate and his flat refusal to return to work for Lawhon, based on his unfounded speculation that he would be subjected to safety hazards, was unjustified and amounted to voluntarily limiting his income, as proscribed by Section 440.15(4)(b), Florida Statutes (1981)....

...AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur. NOTES [1] This inquiry is more appropriate for issues of apportionment, upon which Claimant does not carry the burden and which were not before the JCC. See § 440.15(5)(b), Fla....

...medical records and documents as untimely and unauthenticated. The JCC overruled the objection on the basis that reports of authorized treating physicians may come 1 Accordingly, she is no longer eligible for wage-loss benefits under section 440.15, Florida Statutes. 2 Due to pending PFB, no issue existed as to jurisdiction of the JCC to consider the motion. 2 into evidence pursuant to “F.S....

PARIENTE, J. In this case, we consider the constitutionality of -section 440.15(2)(a), Florida Statutes (2009) — part of the state’s workers’ compensation law — -which cuts off disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement....

...In Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management, 122 So.3d 440, 442 (Fla. 1st DCA 2013), ah en banc majority of the First District Court of Appeal valiantly attempted to save the statute from unconstitutionality by interpreting section 440.15(2)(a) so that the severely injured worker who can no longer, receive temporary total disability benefits, but who-is not yet eligible for permanent total disability benefits, would not be cut off from compensation after 104 weeks....

...raint and effectively rewrite the enactment.”). We accordingly quash the First District’s decision. Consistent with the views of both the petitioner, Bradley Westphal, and the principal respondent, the City of. St. Pe-tersburg,, we conclude that section 440.15(2)(a) of the workers’ compensation law is plainly .written and therefore does not permit this Court to resort to rules of statutory construction....

...maximum number of weeks allowed [104 weeks], or the employee reaches the date of maximum medical improvement, whichever occurs.earlier, temporary disability benefits shall cease and the injured worker’s permanent impairment shall be determined.” § 440.15(2)(a), Fla....

...The stated legislative intent of the workers’ compensation law is to “assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. (2009). Section 440.15(2)(a), however, operates in the opposite manner....

...However, we conclude that this unconstitutional limitation on temporary total disability benefits does not render the entire workers’ compensation system invalid. 2 Rather, we employ the remedy of statutory revival and direct that the limitation in the workers’ compensation law preceding the 1994 amendments to section 440.15(2)(a) is revived, which provides for temporary total disability benefits not to exceed 260 weeks— five years of eligibility rather than only two years, a limitation we previously held “passes constitutional muster.” Martinez, 582 So.2d at 1172 ....

...t to the workers’ compensation law set forth in chapter 440, Florida Statutes (2009). Specifically, the City of St. Peters-burg began to provide both indemnity benefits, in the form of temporary total disability benefits pursuant ' to section *316 440.15(2), Florida Statutes, and medical benefits. Under section 440.15(2)(a), entitlement to temporary total disability benefits ends when a totally disabled injured worker reaches the date of máximum' medical improvement or after 104 weeks, whichever occurs earlier. § 440.15(2)(a), Fla....

...In an attempt -to replace his pre-injury wages of approximately $1,500 per week that he was losing because -of his injuries, West-phal filed.a-petition for benefits, claiming either further temporary disability or permanent total disability pursuant to section 440.15(1), Florida Statutes (2009)....

...The First District panel applied its decision prospectively and instructed the JCC to grant Westphal additional temporary total disability benefits, not to exceed 260 weeks, as would have been provided under the relevant statutory provisions in effect before the 1994 Amendment of section 440.15(2)(a), limiting eligibility for temporary total disability benefits to a maximum of 104 weeks....

...ary total' disability benefits, whichever occurs earlier, and that the doctor' must assign an impairment rating as part of this evaluation. Westphal, 122 So.3d at 444 . The First District construed the use of the phrase “permanent impairment” in section 440.15(2)(a) to signify that the worker has attained maximum medical improvement....

...owers, due process, and the principle of stare decisis. The State, which is .also a respondent, agrees that the previous interpretation of the First District in Hadley and Oswald is correct, but argues that the First District’s new construction of section 440.15(2)(a) is a reasonable alternative interpretation if this Court is inclined to declare the 104-week limitation on temporary total disability benefits .to be invalid as a denial of access to courts. Westphal, however, argues that there is no judicial fix and that the 104-week ' limitation in section 440.15(2)(a), as applied to him and others similarly situated, is an unconstitutional denial of access to courts. We thus begin our analysis by interpreting section 440.15 to determine if the First District’s en banc opinion — eliminating the’statutory gap — provides a permissible statutory construction, or if the First District’s prior opinions in Hadley and Oswald — recognizing the statutory gap created by the Legislature — provided the correct interpretation....

...West-phal and other similarly situated severely injured workers, is unconstitutional. Concluding that the statute, as applied, violates the access to courts provision of the Florida Constitution, we conclude by considering the appropriate remedy. A. Section 440.15, Florida Statutes Section 440.15, Florida Statutes (2009), governs the payment of disability benefits to injured workers. As of the 1968 adoption of the Florida Constitution, permanent total disability benefits were determined “in accordance with the facts,” and the term “maximum medical improvement” was not included in the workers’ compensation law. § 440.15(1), Fla....

...the injury. Indeed, in 1969, this Court noted that “[t]he date of maximum medical improvement marks the end of temporary disability and the beginning of permanent disability.” Corral v. McCrory Carp., 228 So.2d 900, 903 (Fla.1969). At that time, section 440.15(2) provided for the payment of temporary total disability benefits for a duration not to exceed 350 weeks. § 440.15(2), Fla....

...sonable medical probability.” § 440.02(22), Fla. Stat. (1979). That statutory definition has remained unchanged to this day. In 1990, the Legislature reduced the duration of’temporary total disability benefits from 35Ó weeks to 260 weeks. *319 § 440.15(2), Fla. Stat. (1990). Then, just four years later, and as part of an- extensive statutory overhaul, the Legislature further reduced the duration of temporary total disability benefits from 260 weeks to 104 weeks. § 440.15(2)(a), Fla. Stat. (1994). Accordingly, in 2009, at the time of the events giving rise to this case, section 440.15(1) provided in part: (a) In case of total disability adjudged to be permanent, 66 % percent of the average weekly wages shall be paid to the employee during the continuance of such total disability....

...In no other case may permanent total disability be awarded. Under the plain language of this provision, permanent total disability benefits are expressly limited to “claimants with' catastrophic injuries or claimants who are incapable of engaging in employment.” § 440.15(l)(b), Fla. Stat. (2009). “In no other case may permanent total disability be awarded.” Id. ,. Section 440.15(2)(a), which governs temporary total disability benefits, provided in part as follows: Subject to ■ subsection (7), in case of disability total in character but temporary in quality, 66 % percent of the average weekly wages shall be...

...mployee reaches [maximum medical improvement] or after the expiration of temporary benefits, whichever occurs ear *320 lier,’ and' continuing for a period determined by the employee’s percentage of impairment,” Hadley, 78 So.3d at 624 (quoting § 440.15(3)(g), Fla. Stat.). As the First District recognized in Had-ley, “[t]hfe statutory scheme in section 440.15 works seamlessly when the injured employee reaches [maximum medical improvement] prior to the expiration of the 104 weeks of temporary disability benefits.” Id., But where “the employee is not at [maximum medical improvement] at th...

...m medical improvement].” Id. Analyzing these statutory provisions, and in an apparent effort to avoid the statutory gap, the’First District in West-phal ultimately concluded that the Legislature’s use of the term “permanent impairment” iii section 440.15(2)(a)' signifies that the disabled worker has attained maximum medical improvement by operation of law....

...f temporary benefits but also that total disability will be existing after the date of maximum medical improvement” in order to be eligible to receive permanent total disability benefits. 710 So.2d at 98 (internal. citation omitted). Specifically, section 440.15(2)(a) requires an injured worker’s “permanent impairment,” 5 as opposed to permanent total disability, to be determined. In addition, section 440.15(3), which pertains to “permanent impairment benefits,” is the only section that discusses an “evaluation” for permanent impairment of the employee, with entitlement to such benefits to commence the day after the employee reache...

...In comparing the rights of a worker such as Westphal injured on the job today with those of a worker injured in 1968, the extent of the changes in the workers’ compensation system is dramatic. A worker injured in 1968 was entitled to receive temporary total disability benefits for up to 350 weeks. See § 440.15(2), Fla....

...hat the injured worker pay a medical copayment after reaching maximum medical improvement. See §§ 440.09(1), 440.13(14)(c), Fla. Stat. (2009). The current law also allows for apportionment of all medical costs based on a preexisting condition. See § 440.15(5), Fla....

...would be unconstitutional.” B.H. v. State, 645 So.2d 987, 995 (Fla.1994). We therefore conclude that the proper remedy is the revival of the pre-1994 statute that provided for a limita-tion of 260 weeks of temporary total disability benefits. See § 440.15(2)(a), Fla....

...ence between a period of only two years (104 weeks) and five years (260 weeks) is significant as it relates to the time it takes a worker to attain maximum medical improvement. III. CONCLUSION For all the reasons explained, .in this opinion, we hold section 440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to Westphal ánd all others similarly situated, as a denial of access to courts under article I, section 21, of the Florida Constitution....

...wer that question in the negative. . To the extent Justice Lewis’s concurring in result opinion suggests as a remedy that chapter 440 should be ''invalidated where defec- • tive,” the remedy of invalidating other sections in chapter 440 beyond section 440.15(2)(a) is not properly before us....

...even though it may be difficult to determine the amount of aggravation and acceleration of disability. See United Electric Company v. Myers, Fla., 134 So.2d 7. We have noted that the deputy based his failure to apportion in part on the provisions of Section 440.15(5) (c) holding that the claimant was not, prior to his last injury, disabled, and that therefore the provisions of Section 440.15(5) (c) were not applicable....

...We reverse in part the award of TTD benefits challenged on the third point, for the reasons that follow. The E/C contends that the award of TTD benefits contravenes section 440.093(3), which reads: Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensa-ble mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries, which shall be included in the period of 104 weeks as provided in s. 440.15(2) and (4)....

...1st DCA 2008) (holding that, in construing statute, courts must first look to its plain language). The JCC drew a contrast between the operative language in section 440.093(3) — “in no event shall [the benefits] be paid for more than 6 months after [the date of physical MMI]” — and the operative language in section 440.15(2), which limits catastrophic TTD benefits by stating they “must not extend beyond 6 months from the date of accident” and which the JCC concluded was “a clear consecutive month calendar period limitation.” But to us the two st...

...“months” in contradistinction to the use of the word “weeks” in other statutes. Cf., e.g., Auman v. Leverock’s Seafood House, 997 So.2d 476, 478 (Fla. 1st DCA 2008) (reaffirming that 104-week cap on temporary disability benefits, found in section 440.15, Florida Statutes, creates “bank” from which benefits are drawn and calculated cumulatively)....

...Malone, West Palm Beach, for appellant. Janis Brustares Keyser of Reid & Ricca, P.A., West Palm Beach, for appellees. PER CURIAM. This cause is before us on appeal from a workers' compensation order in which wage-loss benefits were reduced pursuant to the "deemed earnings" provision of Section 440.15(3)(b)2, Florida Statutes....

...The set-off should be derived by subtracting from that total *710 80 percent of the average weekly wage, or $608.84, resulting in a weekly set-off of $51.18. That sum should then be deducted from the "actual compensation rate" (defined by the judge of compensation claims as the sum authorized by section 440.15(1)(a), Florida Statutes (Supp.1994), to be paid in the case of permanent and total disability, or 66 2/3 percent of the average weekly wage) of $507.37, resulting in a figure of $456.19, to which should be added the supplemental benefits for 1998 of $88.80, resulting in a total adjusted weekly payment of $544.99. However, because the maximum compensation rate authorized by statute for 1998 was $492.00, the judge of compensation claims concluded that the claimant's weekly compensation was limited to that amount. This appeal follows. Section 440.15(10)(a), Florida Statutes (Supp.1994), provides, in pertinent part: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...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. Stat. (1993). Because section 440.15(10)(a) states in relatively clear language that the social security offset is to be applied against the "[w]eekly compensation benefits" to which the claimant would otherwise be entitled, the employer and servicing agent correctly subt...

...otherwise... ." We find that the record lacks any competent substantial evidence to support *811 the temporary total disability award, and that the deputy erred in awarding such benefits. The circumstances would apparently require the application of § 440.15(4)(b), Florida Statutes (1980), as to "deemed" earning ability upon a claimant's voluntary limitation of income, and on remand the deputy should consider the applicability and effect of this provision....

...Maureen Emmet-Miller and Peter H. Dubbeld of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellees. ROBERT P. SMITH, Jr., Chief Judge. Morrow appeals from a deputy commissioner's order finding that after Morrow reached age 62, the employer and carrier were entitled under section 440.15(3)(b)4, Florida Statutes (1979), to reduce by half the permanent wage-loss benefits otherwise payable....

...nullified by another Florida statute, and approved the offset for social security retirement benefits received without passing on Morrow's constitutional questions. We affirm the deputy's order and, in doing so, reject the constitutional challenge. Section 440.15(3)(b)4 provides: When the injured employee reaches age 62, wage-loss benefits shall be reduced by the total amount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee's wage-loss benefits....

...Fort Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982); Robbins v. Rophie Shoes, Inc., 413 So.2d 839 (Fla. 1st DCA 1982); Jack Eckerd Corp. v. Coker, 411 So.2d 1026 (Fla. 1st DCA 1982). We first take up Morrow's contention that the reduction in wage-loss benefits authorized by section 440.15(3)(b)4 is in conflict with, or rendered inapplicable by, section 440.15(10)(a), Florida Statutes (1979), which is set out below....

...§ 423 shall be reduced, so that the total sum payable "to the employee and his dependents" under chapter 440 and, had the employee not been entitled to chapter 440 benefits, under 42 U.S.C. §§ 423 and 402, "does not exceed 80 percent of the employee's average weekly wage." Sec. 440.15(10)(a). The qualifying language in section 440.15(10)(a), which Morrow relies on to nullify the setoff prescribed by section 440.15(3)(b)4, concludes with this sentence: This reduction of compensation benefits shall not be applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years. Sec. 440.15(10)(a). The title to section 440.15(10) refers to "EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER [440] AND FEDERAL *1232 OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE ACT." Thus Morrow urges that the title's reference to "OLD-AGE" and the text's unqualified reference to 42 U.S.C. § 402, entitled "Old-age and survivors insurance benefits," define the scope of the qualification made by the concluding sentence of section 440.15(10)(a). Those references then cancel, so Morrow argues, the reduction in chapter 440 benefits authorized either by section 440.15(3)(b)4 or section 440.15(10)(a) if the claimant is, at age 62 or beyond, receiving either social security retirement benefits or social security disability benefits in addition to chapter 440 wage-loss benefits. Any conflict in the statutes, Morrow argues, should be resolved in the injured worker's favor. We agree with the deputy that there is no conflict in the statutes and that the concluding sentence of section 440.15(10)(a) does not restore to wage-loss claimants over age 62 the reduction specified by section 440.15(3)(b)4. The reduction in Morrow's wage-loss benefits required by section 440.15(3)(b)4 is keyed to his receipt of social security retirement benefits payable under 42 U.S.C. § 402. On the other hand, section 440.15(10)(a), containing the sentence relied on to cancel that reduction, pertains not to retirement but to social security disability benefits....

...mpensation law, so reducing workers' compensation payments to employees who also are receiving social security disability benefits. 42 U.S.C. § 424a (d). The Florida statute exercising that option, and giving employers and carriers this benefit, is section 440.15(10). See American Bankers Insurance Co. v. Little, 393 So.2d 1063 (Fla. 1980). Thus, because the setoff provisions of section 440.15(10)(a) parallel those of 42 U.S.C. § 424a, we regard the reference to 42 U.S.C. § 402 and to the "FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE ACT," in Florida Statute 440.15(10), as a reference to social security disability benefits payable under 42 U.S.C. §§ 402 and 423, not as a reference to retirement benefits payable under § 402. The disability benefits thus provided are subject to the offset of section 440.15(10). Modern Plating Co. v. Whitton, 394 So.2d 515 (Fla. 1st DCA 1981), pet. for rev. den., 402 So.2d 614 (Fla. 1981). The only reduction of compensation that ends at age 62 by virtue of section 440.15(10), relied on here by Morrow, is the offset for receipt of federal disability benefits....

...1st DCA 1983), this court recently sustained, as against constitutional contentions similar to those made here by Morrow against the age-62 diminution of chapter 440 benefits, the provision in chapter 440 terminating certain classes of benefits at age 65. That decision controls this one. Section 440.15(3)(b)4 is not unconstitutional. AFFIRMED. MILLS and NIMMONS, JJ., concur. *1233 Note: NIMMONS, J., did not participate in the oral argument of this case but has reviewed the recording of those proceedings. NOTES [1] Sec. 440.15(10) provides in part: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...Under the statute in effect on the date of the accident, wage-loss benefits are barred if sought for periods more than two years after the last day of the month in which maximum medical improvement has been attained, unless wage-loss benefits were payable for three consecutive months during that two-year period. § 440.15(3)(b)3.a., Florida Statutes (1987)....

...Once a claim for wage-loss benefits is statutorily barred, setting another maximum medical improvement date does not revive or reestablish entitlement to benefits. Further, although we recognize that a claimant may have more than one MMI date, neither section 440.15(3)(b)3 nor the case law interpreting that section provides for any of the time limitations in subsection (3)(b)3 to be reactivated if the claimant does reach a subsequent point of MMI. Accordingly, we reverse the JCC's award of wage-loss benefits from December 17, 1987 and continuing, on the basis that the award is barred by section 440.15(3)(b) 3.a., Florida Statutes (1979)....

...92, is in the record. [9] Since maximum medical improvement was attained on June 22, 1992, the two-year period began on July 1, 1992, the first "time subsequent to the month when the injured employee reaches the date of maximum medical improvement." § 440.15(3)(b)3.a., Fla....

...1st DCA 1982); H.S. Camp & Sons v. Flynn, 450 So.2d 577, 580, note 3 (Fla. 1st DCA 1984). Although the award in this case is based upon the medical evidence of total psychiatric impairment, it clearly is not an award for total permanent impairment because § 440.15(3)(a), Florida Statutes, limits impairment awards to other defined losses not including total physical or psychiatric impairment....

...See also, as to apportionment issues different from those in Goldsmith, the decision in Flagship National Bank, et al. v. Hinkle, et al., 479 So.2d 828 (Fla. 1st DCA 1985), stating "we hold that the 1979 amendments transferring the statutory language prohibiting apportionment from section 440.02(18) to section 440.15(5) did not alter the prior substantive law......

...In the order denying benefits, the judge noted that given claimant's average intelligence and excellent reading skills, he would be an excellent candidate for "true rehabilitation" as opposed to the job placement assistance which employer/carrier provided. Under the provisions of section 440.15(1)(b), Florida Statutes, "no compensation shall be payable ......

...Petersburg, for Appellants. Brian J. Anthony of Hughes, Rardon, Rodriguez & Anthony, P.A., Tampa, for Appellee. PER CURIAM. In this workers' compensation case, Inverness Healthcare Center and CSSC Beverly Enterprises Unit appeal an order recalculating the offset under section 440.15(9)(a), Florida Statutes (1989)....

...We reverse because the deputy's finding of a permanent physical impairment is not supported by competent substantial evidence. In Trindade v. Abbey Road Beef 'N Booze, 443 So.2d 1007, 1012 (Fla. 1st DCA 1983), we held: [F]or purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the [AMA] Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the...

...*1241 although application of a prescribed guide remains obligatory to the extent feasible. With or without a guide, the statute requires that impairment shall be based on "medically demonstrable" findings and "generally accepted medical standards." § 440.15(3)(a)3, Florida Statutes....

...specific purpose of preventing such manifestations, as for instance the medication in this case given to prevent acute spasm. A compelling reason for concluding that the deputy's finding here is one resting on "medically demonstrable" [6] evidence, § 440.15(3)(a), Florida Statutes, and for concluding that the impairment opinion of the primary doctor is not one based on bare unverified subjective complaints, is the fact that the doctor monitored claimant's chronic complaints of pain, stiffness and other symptoms over an extended period of two years....

...e weekly wage (AWW) the e/c's past weekly contribution to her retirement program even though she is now retired and drawing retirement benefits. In her cross appeal, the claimant alleges that the dc erred by invoking the deemed earnings provision of section 440.15(3)(b)(2), Florida Statutes (1987), upon his finding that she voluntarily limited her income by opting for voluntary retirement and limiting her work search....

...th the $36.13 addition to AWW and its resultant increase in wage loss benefits, we would observe that such an argument is irrelevant to an AWW computation under section 440.14(3), but may have some application if we were dealing with wage loss under section 440.15(3)(b) and (2)....

...Finally, a written program was approved by the carrier and implemented. We cannot agree with the carrier's position that the benefits should not be paid during this process. Section 440.49(1)(e) provides that: temporary disability benefits paid pursuant to § 440.15(2)(a) and (4) shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving training or education under a rehabilitation program pursuant to paragraphs (1)(a) and (d)....

...to take a social security offset against wage-loss benefits paid, pursuant to this court's holding in Good Housekeeping Gas Co. v. Kitler, 492 So.2d 700 (Fla. 1st DCA 1986). In that case, it was held that, since wage-loss benefits were paid monthly, section 440.15(9)(a), Florida Statutes (1985), [1] which applied only to weekly workers' compensation benefits, did not authorize the taking of a social security offset against wage-loss paid to a claimant. Effective October 1, 1989, the Legislature amended section 440.15(3)(b)1, Florida Statutes, to provide that wage-loss benefits would be based on an employee's average weekly, rather than monthly, wages....

...nt. Claimant subsequently filed a claim for the unpaid balance of his wage-loss benefits, arguing that the social security offset was improper. After a hearing on that issue, the JCC entered an order finding (1) that the October 1, 1989 amendment to section 440.15(3)(b)1 "created a new offset with the result that there was a reduction in the aggregate of claimant's total workers' compensation and social security benefits due and payable"; (2) that, as a result, the rule set out in American Bankers Insurance Co....

...1980) was not applicable; and (3) that claimant was entitled to the balance of wage-loss benefits underpaid as a result of the improperly taken offset. We agree with each of these findings. In American Bankers, supra, the Florida Supreme Court considered the retroactivity of a 1973 amendment to section 440.15(10), *290 Florida Statutes, which created the right of an employer to offset workers' compensation disability payments by the amount of an injured employee's weekly federal social security disability payment....

...ng that the employee would not receive a decrease in benefits due to double offsetting by both the E/C and the Social Security Administration. The question raised in American Bankers, then, was whether the retroactive application of the amendment to section 440.15(10) would impair the claimants' substantive rights existing at the time of their injuries....

...tain total dollar amount in combined state and federal disability payments and neither has demonstrated that he or she has suffered any diminution of those benefits by reason of the subsequent enactment and implementation of the offset authorized by section 440.15(10)....

...ed right that an injured employee has as a result of his or her disability. 393 So.2d at 1065. (emphasis supplied) In Ralston Purina Company v. Byers, 457 So.2d 1138 (Fla. 1st DCA 1984), this court considered the retroactivity of a 1983 amendment to section 440.15(3)(b)4, Florida Statutes, which, for the first time, allowed persons 65 years of age and over and eligible for social security retirement benefits to also obtain wage-loss benefits, but which provided for a social security setoff....

...This court held that the amendment clearly altered the E/C's liability and could not be characterized as "relatively minor" and, therefore, found the statutory change to be substantive in nature and not retroactively applicable. In the instant case, the amendment to section 440.15(3)(b)1, changing wage-loss benefits from monthly to weekly, has the effect of creating, for the first time, the E/C's right to a social security set-off against wage-loss benefits paid to an injured employee....

...s on the unpaid wage-loss benefits — will not be addressed on appeal since appellee has not filed a cross appeal in this case. Nealy v. City of West Palm Beach, 442 So.2d 273 (Fla. 1st DCA 1983). AFFIRMED. ZEHMER and WEBSTER, JJ., concur. NOTES [1] Section 440.15(9)(a), Florida Statutes (1985), provides as follows: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...ts in a greater degree of permanent disability than would otherwise follow from the subsequent injury; without at the same time imposing an unjust burden to pay such compensation upon the employer in whose employ the subsequent injury occurred. F.S. § 440.15(5)(d) 6(a), F.S.A., provides as follows: “a....

...For the foregoing reasons, respondent’s motions must be and the same are hereby granted. The petition for writ of certio-rari is dismissed. STURGIS, C. J., and CARROLL, DONALD K., J., concur. . See also: Florida Constitution, Art. V, § 26(10), F.S.A. . F.S. § 440.15(5) (d), F.S.A. . F.S. § 440.15(5) (d) 6, par. b, F.S.A. . F.S. § 440.15(5) (d) 1, F.S.A....

...e decree rendered the matter res judicata. The court concluded that the prior decree had been predicated on a different cause of action ("indignities to the person"). Here the two causes of action are even more distinct. The original claim was under section 440.15, Florida Statutes, while the claim that gave rise to the present appeal arises under section 440.21, Florida Statutes....

...Petersburg, for appellant. Ellen H. Lorenzen, of Whalen & Morlan, Tampa, for appellees. SHIVERS, Judge. The claimant in this workers' compensation case appeals an order awarding temporary wage-loss benefits based on the "deemed earnings" provision of section 440.15(4)(b), Florida Statutes, rather than on actual lost wages....

...We approved the wage-loss award, holding that claimant's change in employment status was due to his industrial injury and that the question of causal relationship between the compensable injury and loss of wages was controlled by Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982). Section 440.15(3)(b)2, Florida Statutes (1984 Supp.) (as amended by chapter 83-505, Laws of Florida), became effective June 30, 1983, and provides in part: It shall also be the burden of the employee to show that his inability to obtain employment or...

...ing a change in employment status due to a compensable injury and that he had engaged in an adequate and good faith attempt to secure employment commensurate with his abilities. Regency Inn v. Johnson, 422 So.2d 870. Construing the 1983 amendment to section 440.15(3)(b)2, we held in City of Clermont v....

...tringent burden of proof required by the amended statute as construed in City of Clermont v. Rumph . We conclude, however, that the evidence in the record was sufficient to establish the necessary causal relationship. Claimant's initial burden under section 440.15(3)(b)2, as amended, was to present evidence which reasonably permitted the conclusion that claimant's physical limitation was an element in the causal chain resulting in or contributing to his wage loss....

...everal months that he worked on a particular transaction, rather than placing all income from the commission in the month of its actual receipt. The answer to this question rests primarily on the interpretation to be given the word "earn" as used in section 440.15(3)(b)2....

...income received during the applicable month. This is contrary to what this court, indeed this very panel, said when these parties were previously before us in National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984): [A] careful reading of § 440.15(3)(b) shows that the comparison to be made is between an employee's pre-injury average monthly wage and the salary and other remuneration the employee is "able to earn " after reaching maximum medical improvement "as compared on a monthly b...

...The JCC ruled that future benefits were to be paid pursuant to the dictates of Grice, and that any previous offsets that could have been taken were administratively waived. We find no abuse of discretion in this ruling. In affirming this point, we are aware of the provisions of section 440.15(13), Florida Statutes (Supp.1994), making an employee liable for any overpayments of indemnity benefits and allowing the employer/carrier to recover the overpayments by reducing compensation payments by 20 percent....

...1st DCA 1997), wherein an employer/carrier was permitted to reduce compensation benefits to recover an overpayment caused by the employer/carrier's failure to apply the social security disability offset back to January 1, 1994, the effective date of section 440.15(13)....

...In Grice, the only funds within the employer's control that could be reduced were workers' compensation benefits, since the state of Florida paid the disability retirement and the federal government paid the social security disability. Moreover, the employer in Grice was entitled to a social security disability offset under section 440.15(9), Florida Statutes (1985), which specifically allows a reduction of workers' compensation payments by the amount of social security disability paid. In the instant case, Lombardi does not receive social security disability benefits; therefore, the E/SA is not entitled to the offset authorized in section 440.15(10), Florida Statutes (1993)....

...The deputy made no finding as to whether a second accident in fact occurred. However, the record supports a determination that if a second injury occurred, Porter Plastics is subject to liability. Since apportionment *1339 of claims for temporary disability, medical benefits, and wage-loss benefits is barred by statute, § 440.15(5)(a), Hayward Trucking, Inc....

...rier's failure to advise him of his rights and responsibilities, the primary argument advanced in the initial brief and the reply brief is that claimant should be awarded temporary partial wage-loss benefits based on the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1981), for the December 18, 1981, through August 31, 1987, time period....

...mination that benefits should be calculated on the basis of deemed earnings. In the circumstances, we find there has been an implicit waiver of possible entitlement to wage-loss benefits based upon actual earnings. The "deemed earnings" provision of section 440.15(4)(b), Florida Statutes (1981), states in part: In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to ea...

...n Management Corp. v. Waters, 508 So.2d 763 (Fla. 1st DCA 1987). In other words, in those months in which an employee's actions can be viewed as a voluntary limitation of income, the employee is still entitled to the benefit of deemed earnings under section 440.15(4)(b), Florida Statutes....

...lems. His opinion was amply predicated upon his medical reports from 1985 and 1986, in which he continually stated that his impression was that the back pain, eventually diagnosed as a herniated lumbar disc, resulted from the right patella fracture. Section 440.15(1)(b), Florida Statutes (1983), provides that permanent total disability benefits are not awardable "if the employee is engaged in, or is physically capable of engaging in, gainful employment." The section provides that it is the claim...

workers' compensation system be efficient. See § 440.015, Fla. Stat. (2000). The Legislature also intends

...He contends that the amount is too low because the social security offset is too high. Specifically, he argues that the judge of compensation claims erred in calculating the social security offset by including supplemental benefits as "compensation benefits." § 440.15(9)(a), Fla. Stat. (1991) (now codified as § 440.15(10)(a), Fla....

...Jackson began receiving social security disability benefits in the amount of $165.23 per week. The Social Security Administration calculated his average current earnings as $377.67 per week. By this time, his workers' compensation supplemental benefits had grown to $30.40 per week. See § 440.15(1)(e)1., Fla....

...multiplied by the number of calendar years since the date of injury"). When his social security disability benefits started, Hochadel and its insurance carrier began taking a $96.18 weekly offset against Mr. Jackson's compensation benefits pursuant to section 440.15(9)....

...(now codified as § 440.20(14), Fla. Stat. (2000)), or Escambia County Sheriff's Department v. Grice, 692 So.2d 896 (Fla.1997). See also Barragan v. City of Miami, 545 So.2d 252, 255 (Fla.1989). As Grice makes clear, the social security offset under section 440.15(9)(a) is different and distinct from the offset allowed under section 440.20(15)....

...Servs., 767 So.2d 443, 445 (Fla.2000) (describing the interpretation in Grice "of section 440.20(15) to mean that a claimant may not receive in excess of 100 percent of his or her [average weekly wage as] a judicial interpretation of an ambiguous statute"). Concerned here only with section 440.15(9)(a) and the social security *670 offset it creates, we do not address whether or not supplemental benefits should be included in calculating the Grice offset....

...are not included when computing the 80 percent limitation, we cannot extend those holdings to exclude supplemental benefits from calculation of those benefits subject to that limitation. That relief must come from the legislature." (Footnote omitted.)). Section 440.15(9)(a), Florida Statutes (1991) (now codified as section 440.15(10)(a), Florida Statutes (2000)), describes the procedure for calculating the social security offset, as follows: Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C....

...t than such benefits would have otherwise been reduced under 42 U.S.C. s. 424(a) [limiting any reduction in social security disability benefits to eighty percent of average current earnings]. (Emphasis supplied.) See generally Hunt, 677 So.2d at 66. Section 440.15(1)(e)1., Florida Statutes (1991) (now codified as section 440.15(1)(f)1., Florida Statutes *671 (2000)), defines supplemental benefits as "weekly compensation benefits": In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, and for which the liabil...

...s. 440.12(2). (Emphasis supplied.) These provisions make clear that supplemental benefits are to be included in calculating the social security offset. See Hyatt v. Larson Dairy, Inc., 589 So.2d 367, 368 (Fla. 1st DCA 1991); Hooks, 515 So.2d at 295. Section 440.15(1)(e)1. designates supplemental benefits "weekly compensation benefits," while section 440.15(9)(a) includes "compensation benefits payable under this chapter" in describing the method for calculating the offset. "Supplemental benefits are compensation payments provided under section 440.15(1)(e)1 ......

...Although the supreme court has not decided the point, the First District has decided that supplemental benefits payable when an injured worker becomes entitled to permanent total disability benefits are "compensation benefits payable under this chapter." § 440.15(9)(a), Fla....

...The parties had stipulated to an average weekly wage of $132.50. At the hearing, appellee testified that she received $257 per month in social security benefits. The deputy commissioner found that she received $250 per month in social security benefits. Section 440.15(10), Florida Statutes, provides that weekly compensation payable to a claimant, when combined with the social security disability benefits, cannot exceed 80% of the employee's average weekly wage....

...ompensation benefits in excess of 80% of her average weekly wage. We reverse the award of $79.50 temporary total disability benefits and remand *280 for entry of an award of temporary total disability benefits which comports with the requirements of § 440.15(10)....

...an appropriate fee to claimant's attorney. REVERSED AND REMANDED. LARRY G. SMITH and McCORD, JJ., concur. NOTES [1] The claim was a non-specific "shotgun" form, simply claiming "... all compensation benefits to which he may be entitled pursuant to F.S. 440.15."

appears to be working precisely as intended. See § 440.015, Fla. Stat. (2011) (explaining that Workers’ Compensation

...ling to cooperate with vocational rehabilition and (3) there is no causal relationship between Genevish's injury and inability to find employment. The primary issue before the Court is Genevish's entitlement to recover wage loss benefits pursuant to § 440.15(3)(b)....

...red worker such as the claimant in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation. In affirming the deputy's conclusion that the claimant in the present case met the burden which § 440.15(3)(b)(2), as amended, imposes, we find that consideration was properly given to the fact that claimant's industrial injury displaced him from his employment; that the employer refused to rehire claimant; and that claimant in good faith perf...

...Borrerro assigned a 1% impairment rating to the body as a whole pursuant to the AMA Guides. Cf. Morrison & Knudsen/American Bridge Div. and CNA v. Scott, 423 So.2d 463 (Fla. 1st DCA 1982) (error to award wage-loss benefits based on permanent impairment rating not determined in accordance with AMA Guides pursuant to section 440.15(3)(a), F.S.) The evidence supporting the 1% impairment rating was not based solely on claimant's verbal complaints. Test results demonstrated a disparity in grip strength between claimant's left hand (110) and the injured right hand (85). Section 440.15(3)(b), Florida Statutes (1986 Supp.), governs wage-loss benefits for an "injured worker who suffers any permanent impairment." See Davis v....

...t condition, while the progress of the injury not realized or anticipated might, at a later time, develop into a different condition). Turning to the second issue raised — the denial of supplemental benefits from the date of MMI — we affirm. Under Section 440.15(1)(e)1, Florida Statutes (Supp....

...lly entitled to a modification based upon a change in conditions, an issue which yet remains to be determined. AFFIRMED in part, and REVERSED and REMANDED for further proceedings consistent with this opinion. JOANOS and MINER, JJ., concur. NOTES [1] Section 440.15(1)(e)1 provides: In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, and for which the liability of the employer for compensation has not been discharged under the provisions of s....

(1993), A Summary (Oct. 21, 1993). Further, section 440.015, Florida Statutes, which provides the legislative

...Challenging this award, the E/C argue that even though Claimant did not learn of the available job until August 23, nevertheless the fact that Claimant conducted a job search shows that he necessarily had actual knowledge of his responsibility to do so, and that the statutory language in the amendment to subsection 440.15(3)(b)(2), Florida Statutes, effective July 1, 1990, [2] (which the parties agree is applicable to the period of wage loss here involved) requires reversal of this award....

...Duck Key Marina, Inc., 602 So.2d 677 (Fla. 1st DCA 1992), neither will we infer from a silent record actual knowledge of the statutory requirements for a valid work search. Merely looking for work does not establish actual knowledge of the requirements of subsection 440.15(3)(b)(2) that the employee in good faith look for a minimum of five jobs within the employee's limitations in each biweekly period and submit wage-loss forms and job-search forms to the employer within 14 days after benefits are due. When the Legislature amended subsection 440.15(3)(b)(2) to read "after the employee has knowledge that a job search is required," it gave some relief to the employer from its failure to give the statutory notice required by section 440.185 as construed by this court in DeFrees v....

...he work search requirements. Where the employee's actual knowledge becomes an issue, the employer bears the burden of proving the employee's knowledge of all statutory requirements regarding the performance of a job search to avoid the obligation in section 440.15(3)(b)(2). When the Legislature amended subsection 440.15(3)(b)(2), it did not delete from the act the provisions of subsection 440.185(2), Florida Statutes (1991), requiring an employer, within seven days after an employee's injury, to notify the employee in writing of the obligations that must be satisfied in order to establish entitlement to wage-loss benefits....

...t. Although the judge characterized this wage loss as a "temporary partial disability period," this characterization is obviously incorrect. Since no party has raised any issue regarding this error, we shall treat this award as wage loss pursuant to section 440.15(3)(b), Florida Statutes (1991)....

...On February 4, 1984, claimant was injured in a work-related accident. Claimant was accepted as permanently and totally disabled and has been receiving the maximum compensation rate allowable since the *754 date of the accident. In addition, claimant receives the five-percent supplemental benefit paid pursuant to section 440.15(1)(e)1, Florida Statutes (1983)....

...On June 25, 1990, claimant filed a claim for benefits, asserting that he was entitled to the previously-reduced workers' compensation benefits pursuant to Barragan, supra . At final hearing, the E/C argued that the supplemental benefits paid pursuant to section 440.15(1)(e)1, Florida Statutes (1983), should be added to the permanent total disability and pension benefits, but the sum cannot exceed the average monthly wage cap as set forth in Barragan....

...ceeds the employee's average monthly wage. [emphasis added] Section 440.02(6), Florida Statutes (1983), provides in pertinent part: "Compensation" means the money allowance payable to an employee or to his dependents as provided for in this chapter. Section 440.15(1)(e)1, Florida Statutes (1983), states in pertinent part: In case of permanent total disability resulting from injuries which occurred subsequent to June 30, 1955, ... the injured employee shall receive from the division additional weekly compensation benefits equal to 5 percent of the injured employee's weekly compensation rate. [emphasis added] Supplemental benefits are compensation payments provided under section 440.15(1)(e)1, Florida Statutes (1983), and should have been considered as part of claimant's total compensation payments in calculating the offset....

...ERVIN, J., dissents with written opinion. ERVIN, Judge, dissenting. In reversing the judge of compensation claims' (JCC's) refusal to include supplemental benefits in the calculation of claimant's average monthly wage, the majority does not discuss what effect Section 440.15(12), Florida Statutes (Supp....

...Because claimant's injury occurred after June 30, 1955 and before July 1, 1984, the supplemental benefits paid to him were not paid by the employer, but rather by the Division of Workers' Compensation out of the Workers' Compensation Administration Trust Fund. Section 440.15(1)(e)1, Fla....

...1st DCA), review denied sub nom., City of Miami v. Ogle, 606 So.2d 1164 (Fla. 1992), and City of Daytona Beach v. Amsel, 585 So.2d 1044 (Fla. 1st DCA 1991), that Barragan is to be given retroactive application as of the date the invalid municipal ordinance became effective. Moreover, section 440.15(12) should be considered a remedial statute and should for that reason be applied retroactively....

...1st DCA 1987), the issue before the court was whether supplemental benefits were subject to the cap of the statutory social security offset, limiting the combined payments of workers' compensation and social security disability benefits to no more than 80 percent of an employee's average monthly wage, as provided in Section 440.15(10), Florida Statutes (Supp....

...for more than 175 weeks before being entitled to reimbursement for temporary disability and remedial medical benefits previously paid pursuant to section 440.13; and (2) it was error to disallow reimbursement for wage loss benefits, paid pursuant to section 440.15(3)(b) during the first six months after the claimant reached maximum medical improvement with a permanent impairment, for the sole reason that the carrier subsequently agreed to accept the claimant's entitlement to permanent total disability benefits under section 440.15(1) retroactive to the date of maximum medical improvement....

...temporary total disability benefits had been suspended as of May 30, 1985, because the claimant had reached maximum medical improvement on that date. As a result of the claimant's unsuccessful work searches, permanent wage loss benefits pursuant to section 440.15(3)(b) were paid each month until December 20, 1985, when the carrier filed another BCL-4 form reporting that it had accepted the claimant as entitled to permanent total disability benefits pursuant to section 440.15(1), retroactive *484 to May 7, 1985....

...ly and substantially greater disability" simply means that a merger under this subparagraph cannot be established until the employer or carrier has actually made some payment of the described permanent benefits [either for permanent impairment under section 440.15(3)(a), wage loss under section 440.15(3)(b), or PTD under section 440.15(1)] on account of a demonstrated increased disability attributable to the combined effect of both permanent impairments....

...for entitlement to reimbursement by the Fund. Subsection 440.49(2)(c)1 authorizes reimbursement, subject to the limitations in 440.49(2)(f), for 60 percent of all permanent impairment benefits which the employer has been required to pay pursuant to section 440.15(3)(a), provided that the subsequent permanent impairment from the industrial accident has "merged," as statutorily defined, with the preexisting permanent physical impairment to cause permanent impairment....

...essarily include excess compensation. Subsection 440.49(2)(c)2 authorizes reimbursement, subject to the same limitations in paragraph (f), for 60 percent of all compensation for wage loss which the employer has been required to provide pursuant to s 440.15(3)(b) during the first 5 years after the date of maximum medical improvement and for 75 percent of all compensation for wage loss which the employer has been required to provide after the 5-year period following the date of maximum medical imp...

...ry and remedial benefits previously paid by an employer and carrier immediately upon the determination that a merger of permanent conditions as defined in subsection 440.49(2)(b)2 has occurred and caused permanent total disability, as provided in subsection 440.15(1)....

...section 440.49(2)(a) to "interpret eligibility requirements liberally," it also would operate to cause employers to defer accepting injured employees as PTD since, as the appealed order recognizes, payment of permanent wage loss benefits pursuant to section 440.15(3)(b) would give rise to an immediate right of reimbursement for previously paid temporary benefits....

...These critically distinguishing facts make the holding of that case inapplicable to the issues presented in the case now before us. We next address the ruling that no permanent wage loss benefits were paid because the carrier had retroactively accepted the claimant as PTD after paying wage loss benefits pursuant to section 440.15(3)(b) for a period of over six months....

...act is that they did not and no claim was filed by the claimant objecting to this decision. We find nothing in chapter 440, and more specifically nothing in section 440.49(2), that requires the reclassification of wage loss benefits paid pursuant to section 440.15(3)(b) to PTD benefits under section 440.15(1) simply because the employer and carrier subsequently agreed to accept the claimant as PTD retroactively....

...Appellants, employer/carrier, appeal the judge of compensation claims' order awarding benefits to appellee. We reverse and remand. As appellants correctly assert, the order on appeal is facially incorrect in its award of temporary partial disability benefits for a period in excess of five years, in contravention of section 440.15(4)(c), Florida Statutes....

biweekly installments or as otherwise provided in § 440.15.” § 440.20(2), Fla. Stat. (1997). For example

...mployment. Claimant's employment history includes five months of employment which followed the December 8, 1986 date of MMI. The finding that claimant's successful postinjury employment was not sheltered is dispositive of his claim for PTD benefits. Section 440.15(1)(b), Florida Statutes, provides in pertinent part: [N]o compensation shall be payable under paragraph (a) [pertaining to PTD benefits] if the employee is engaged in, or is physically capable of engaging in, gainful employment; and th...

...Okeelanta and Alexis conceded that, for the periods of September 26, 1996, through October 9, 1996; November 21, 1996, through December 4, 1996; and January 3, 1997, through January 30, 1997, Mr. Olavarria submitted timely requests for wage loss benefits. See § 440.15(3)(b)2, Fla....

...His industrial accident caused serious injuries that led to restrictions on the kind of work he could perform. Although the judge of compensation claims found that Okeelanta had offered Mr. Olavarria employment within his medical restrictions for the aforementioned periods, see § 440.15(3)(b)5 b, Fla....

...rdale, for Appellees. BENTON, J. Sara Styles appeals the decision of the judge of compensation claims determining her date of injury to be April 14, 1992, instead of March 8, 1988, for purposes of calculating supplemental benefits in accordance with section 440.15(1)(e), Florida Statutes....

...440.20(12), the injured employee shall receive additional weekly compensation benefits equal to 5 percent of his weekly compensation rate, as established pursuant to the law in effect on the date of his injury, multiplied *213 by the number of calendar years since the date of injury. § 440.15(1)(e), Fla....

...ry." The date of accident determines the substantive law applicable in workers' compensation cases. See, e.g., Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996); Paulk v. Sch. Bd., 615 So.2d 260, 261 (Fla. 1st DCA 1993). The language of section 440.15(1)(e) did not change between March 8, 1988, and April 14, 1992....

...Although here, as in Higgins, only one employer is involved, the Higgins "second employer" analysis supports the view that the date of injury on which the claimant's average weekly wage was higher should also be deemed the "date of injury" for purposes of section 440.15(1)(e)....

...1st DCA 1999). These purposes would not be well served by a statutory construction permitting an employer to choose one date for calculating basic compensation benefits and another, more recent date for calculating supplemental benefits in accordance with section 440.15(1)(e)....

...a medical basis at the time of hearing and for twenty months prior thereto, would, once achieving MMI, have the physical capacity to engage in sedentary work or greater, and thus require vocational testimony to establish his entitlement to PTD. See § 440.15(l)(b)5., Fla....

...is also premature. Nevertheless, to the extent the JCC relied on the opinion of the neuropsychologist to determine the existence or extent of Claimant’s permanent impairment, we modify the order by quashing any findings based on such reliance. See § 440.15(3)(b), Fla....

...the merits. Based on the foregoing, we reverse the JCC's award of PTD benefits and remand for the JCC to make findings regarding Claimant's entitlement to PTD benefits from the date they were terminated forward applying the substantive provisions of section 440.15, Florida Statutes (1983)....

...[1] Nor is there any evidence in the record of some intervening circumstance that affected the compensable nature of claimant's condition. Accordingly, we REVERSE the JCC's order and REMAND for further proceedings. WEBSTER and BENTON, JJ., concur. NOTES [1] Section 440.15(5)(b), Florida Statutes (2001), which addresses apportionment, provides: If a compensable permanent impairment, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger w...

...issioner (deputy) erred in awarding temporary total disability (TTD) benefits, in awarding wage loss benefits, and in awarding taxable costs to claimant. We agree with the E/C and reverse on all three points. The claimant argues on cross-appeal that § 440.15(3), Fla....

...Accordingly, the deputy erred in awarding claimant wage loss benefits based on his finding of permanent anatomic impairment. See Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982); Paradise Fruit Company v. Floyd, No. AF-493 (Fla. 1st DCA August 31, 1982) [7 FLW 1899]. The claimant argues on cross-appeal that § 440.15(3), Fla. Stat. (1979) is unconstitutional. This court held in Rhaney v. Dobbs House , that § 440.15(3) was constitutional....

...ffect on an earlier date.) Notwithstanding this evidence, however, claimant was not paid impairment benefits for her low-back injury until July 23, 2002. Thus, it would appear that claimant is entitled to penalties and interest for late payment. See § 440.15(3)(a)1 (providing that "[o]nce the employee has reached the date of maximum medical improvement, impairment benefits are due and payable within 20 days after the carrier has knowledge of the impairment"); § 440.20(6) & (8) (addressing liability for penalties and interest, respectively), Fla....

...In this workers' compensation case, the employer appeals the Judge of Compensation Claims' (JCC) order which held that, because Claimant's average current earnings (ACE) were greater than his average weekly wage (AWW), the amount of the employer's Social Security Disability (SSD) offset was improper, and conflicted with section 440.15(9) [1] , Florida Statutes (1991)....

...alculated the offset. A final hearing was held and, after considering testimony, documentary evidence, and arguments of counsel, the JCC entered an order finding, in pertinent part, that the employer's use of Grice in calculating the offset violated section 440.15(9), Florida Statutes, and was contrary to Dixon v....

...Federal law permits an employer to offset workers' compensation payments up to the amount of SSD benefits the claimant is receiving, but prohibits the offset from decreasing the claimant's total *138 benefit below 80% of his monthly AWW or 80% of his monthly ACE, whichever is greater. See § 440.15(9)(a), Fla....

...When reading Dixon, Grice , and the relevant statutes in tandem, a claimant's SSD benefit may be offset, but only to the extent it does not reduce total benefits to less than 100% of the claimant's monthly AWW ( Grice ) or 80% of his monthly ACE ( Dixon ), whichever is greater. See §§ 440.15(10)(a), and 440.20(15), Fla....

...The employer correctly calculated its offset pursuant to the formula provided in Grice, and provided Claimant with 100% of his AWW. The JCC's order is REVERSED and the case REMANDED for entry of an order consistent with this opinion. BENTON and PADOVANO, JJ., concur. NOTES [1] Currently, section 440.15(10), Florida Statutes (2004)....

...he issue of whether the E/C acted reasonably in continuing to investigate a PTD claim. The "statutory duties and obligations pertinent to" a PTD claim differ significantly from the obligations surrounding, for instance, a claim for medical benefits. Section 440.15(1)(b), Fla....

...yable [for PTD] if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation." § 440.15(1)(b), Fla....

...nefits. They find inconsistency in opinions of this court dealing with this subject. What the e/c characterize as conflict in our opinions is, we believe, not conflict at all but rather confusion attributable to the wording of the wage loss statute. Section 440.15(3)(b), Florida Statutes (1985), provides in pertinent part: 1....

...s inability to obtain work was due to physical disability related to the industrial accident." 446 So.2d at 243. It is a permanent impairment rating, not the existence of physician-imposed restrictions, that is prerequisite to a wage loss claim. See section 440.15(3)(b)1, Florida Statutes (1985)....

...The only stated basis for the reversal was the absence of "physical restrictions" on the claimant. [3] We note that the legislature appears to have resolved this confusion in the 1989 amendments. Although not applicable to the instant case, the following amendment to section 440.15(3)(b)1 suggests that henceforth the existence of physical restrictions will be a prerequisite to a wage loss claim: Each injured worker who suffers a any permanent impairment, which permanent impairment is determined pursuant to the sc...

question to be of great public importance: Does Section 440.15(3)(b)3.d., Florida Statutes (1979) violate

...lity of the body as a whole. The sole question for our determination is whether independent, simultaneous injuries to two body members, which would be considered as scheduled injuries if they occurred separately, may be treated under Florida Statute § 440.15(3)(u), F.S.A., as an injury to the body as a whole? The issue is one of first impression in Florida. The Legislature has provided guidance by way of Florida Statute § 440.15(5)(c), F.S.A., which states: "(5) Subsequent Injury....

...1962). The merged injury would then justify a disability award based upon a rating of the body as a whole. Sharer v. Hotel Corp. of America, supra ; Davis v. Okeelanta Sugar Refinery, Inc., 147 So.2d 513 (Fla. 1962). (Both Sharer and Davis cite to F.S. § 440.15(5)(d)....

..."This Court has consistently construed the Workmen's Compensation Law liberally in order to accomplish the beneficent purposes and objectives implicit in legislation of this type." Wick Roofing Co. v. Curtis, 110 So.2d 385, 387 (Fla. 1959); Sharer v. Hotel Corp. of America, supra . The schedule in F.S. § 440.15, F.S.A., should not be applied with remorseless and inflexible precision when there is, as in this case, competent substantial evidence that would warrant a rating under F.S. § 440.15(3)(u), F.S.A., "other cases." This policy is exemplified in Kashin v....

...However, the policy expressed by those cases is not easily distinguishable from this case. Secondly, we do not feel that the Legislature meant "torso" when it said "body as a whole" but instead meant to recognize that some injuries simply may not fit in the schedule set forth in F.S. § 440.15, F.S.A....

...ct and hold accordingly. We agree with the respondents when they cite Little River Bank and Trust Co. v. Neal, 154 So.2d 809 (Fla. 1963) for the proposition that the Legislature considered all of the variables when it proscribed the schedule in F.S. § 440.15, F.S.A., and that administrative agencies and courts are bound to follow the statute. Where the injury is restricted to what F.S. § 440.15, F.S.A., describes in terms of scheduled injuries, the JIC must follow the statute....

...But where, as here, the injury is not specifically covered, and where the JIC has competent substantial evidence to find that the injury has affected the body as a whole, the JIC should so find. *645 In connection with this point it should be noted that F.S. § 440.15(3)(d), F.S.A., refers to "foot lost", the singular and not the plural....

...olphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), a case in which this Court approved the award of a fee under the subject statutory section where the employer/carrier denied that the claimant sustained a catastrophic injury (under F.S. 440.15(2)(b)) although admitting that a noncatastrophic compensable injury had occurred....

...Moreover, the JCC's order reflects he accepted an orthopedist's medical opinion that claimant was at MMI with an impairment rating of either 12 percent or 14 percent, entitling claimant to a total of 36 weeks or 42 weeks of impairment benefits, respectively. See § 440.15(3)(a)3.a., Fla....

...y from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability." City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 97 (Fla. 1st DCA 1998) (quotation omitted). See also § 440.15(2)-(3), Fla....

...1st DCA 1998), but provide that a permanently injured claimant can begin receiving permanent impairment benefits upon the expiration of 104 weeks, even if maximum medical improvement has not been attained. See Ch. 93-415, § 20, at 120, 128, Laws of Fla. (amending § 440.15(2), (4), Fla. Stat. (1993)). Unless the date of maximum medical improvement has already been reached, the injured employee's condition is to be evaluated six weeks before temporary benefits expire, so that an impairment rating can be assigned. See § 440.15(3)(a)(4.), Fla....

..."Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker's permanent impairment shall be determined." § 440.15(2)(a), Fla....

...ome degree, by way of aggravation or acceleration, to claimant's temporary disability and medical needs. Apportionment issues, other than division between carriers, appear to be premature absent any determination of a permanent disability claim. See section 440.15(5)(a), Florida Statutes....

...Jacqui Charbonneau of Danielson, Clarke & Pumpain, West Palm Beach, and Diane H. Tutt, Ft. Lauderdale, for appellees. PER CURIAM. Mr. Burks, the claimant in a workers' compensation proceeding, presents two issues for our review. The first issue poses the question, novel in Florida law, of whether section 440.15(9)(a), Florida Statutes (1989), allows the employer/carrier (E/C) to take an offset against compensation benefits, otherwise payable, owing to the claimant's receipt of federal social security disability benefits in cases where the cla...

...The major issue tried before the judge of compensation claims (JCC) involved the E/C's entitlement to take a social security offset. [2] As to this issue, the JCC found as follows: The Employer/Carrier is entitled to take [sic] social security offset based on Florida Statute 440.15....

...would have otherwise been reduced under 42 U.S.C. s. 424(a). This reduction of compensation benefits is not applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years. § 440.15(9)(a), Fla....

...Burks argues that since Congress intended to allow such trial work periods, the Florida Legislature could not have, contrariwise, enacted a statute that would penalize someone who is willing to test employability and wage earning capacity. Furthermore, argues appellant, the language of section 440.15(9)(a), Florida Statutes, triggers the offset only as to one "who becomes eligible" for disability benefits, and accordingly, one who is already entitled to such benefits prior to the compensable injury does not suffer the offset. Burks candidly admits, however, that the statutory language "becomes entitled" is not completely clear, perhaps because the legislature never envisioned the present factual situation. Acknowledging the close question, we find that section 440.15(9)(a) does allow the E/C to take an offset for social security disability benefits attributable to a prior physical condition, when the evidence shows that the claimant was already receiving such social security disability benefits at the time of the compensable injury. Section 424a of the federal act was enacted to prevent claimants from receiving "windfall" benefits. Department of Public Health, Division of Risk Management v. Wilcox, 543 So.2d 1253, 1255 (Fla. 1989). Construing section 440.15(9)(a) in a like manner, we hold that the offset may be taken when the claimant is receiving social security disability benefits even if the claimant started receiving social security disability benefits before the industrial accident o...

of the Florida Workers' Compensation Law. See § 440.015, Fla. Stat. (2006) ("It is the specific intent

...William Allen, Jr., of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee. WIGGINTON, Judge. Appellants, employer/carrier, appeal the deputy commissioner's order awarding to appellee permanent total disability benefits and catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981)....

...After surgery, appellee's arm was in a cast until approximately April 13, 1982. Thereafter, appellee's condition did not improve and by June, 1982, the treating physician determined that the surgery had been unsuccessful. The deputy commissioner found that appellee is entitled to catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981), for the maximum of six months due to the total loss of use of his *570 right arm. The testimony of the treating physician, as well as that of appellee, supports a conclusion that for the six month period following his accident, appellee was totally unable to use his arm to perform any function in an industrial setting. Section 440.15(2)(b), Florida Statutes (1981), provides in pertinent part: Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic d...

...his arm in an industrial setting for several months. Compare Santiago v. Orr Industries, Inc., 407 So.2d 1026 (Fla. 1st DCA 1981). See also Van Eyk v. R.N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979), in which the court noted that section 440.15(2) refers to temporary, not permanent, total disability. The above authorities support our conclusion that a finding of total loss of use of an arm due to temporary damage to the nervous system, as a result of surgery necessitated by an industrial injury, is an adequate ground for recovery pursuant to section 440.15(2)(b)....

...ared without any precipitating exertion on the claimant’s part. The carrier accepted responsibility for repair of that hernia, but the claimant refused to undergo surgery to repair it. Claim was filed for bene *746 fits outside the hernia statute, § 440.15(6) (f)....

...the lower part of a previous incision. Dr. Dickey recommended that this blow-out hernia be repaired by an additional one or two wire sutures. The claimant again refused to undergo surgery and filed petition for modification asking for benefits under § 440.15(3) (u), Florida Statutes, F.S.A. A hearing was held by the deputy commissioner, who on November 10, 1960, entered an order finding that the claimant’s refusal to undergo further surgery was not unreasonable, and that the claim was governed by § 440.15(3) (u), Florida Statutes, F.S.A....

...a hernia as a direct result of an industrial accident in the course of his employment and undergoes four unsuccessful surgical operations for the hernias and, in addition, surgery for the removal of a testicle, should he be awarded disability under § 440.15(6), Florida Statutes, F.S.A. (hernia section), or § 440.15(3) (u), Florida Statutes, F.S.A. (loss of wage-earning capacity section) ? The answer to the question presented turns on the interpretation of the cited statutes. We initiate this opinion by quoting the pertinent part of said statutes as follows: 440.15(6) (f) “All hernia, inguinal, femoral, or otherwise, so proved to be the result of an injury by accident arising out of and in the course of the employment, shall be treated at the expense of the employer in a surgical manner by radical operation....

...If, however, it is shown that the employee had some chronic disease, or is otherwise in such physical condition that the commission considers it unsafe for the employee to undergo said operation, the compensation shall be paid as otherwise provided in subsection (4) of § 440.15, but not for exceeding thirty weeks. Compensation shall be allowed for temporary total disability as provided by subsection (2) of this section for such disability before the operation.” *747 § 440.15(3) (u) “Other cases: In all other cases in this class of disability the compensation shall be sixty per cent of the injured employee’s average weekly wage for such number of weeks as the injured employee’s percentage of disability is...

...roven past unsuccessful results. The Deputy Commissioner finds that the claimant’s refusal to undergo surgery for a fifth (5th) time was not unreasonable.” This was the order which on appeal was reversed by the full commission on the theory that § 440.15(6) (f), the hernia statute, is all inclusive and controls the remedy for hernia....

...e, I think he could get a good result. Whether it would relieve his pain or not would have to be determined after the surgery. It would be a gamble in that sense.” The deputy commissioner rejected the idea the claimant’s remedy was controlled by § 440.15(6) (f), Florida Statutes, F.S.A., but held rather that it was controlled by § 440.15(3) (u), Florida Statutes, F.S.A., having to do with the loss of wage earning capacity....

..., and while they have to do with what might be called kindred aspect, not in point with the case at bar, they do not militate against being persuasive of the claimant’s contention. In the Crosby case, supra, we said that “it should be noted that section 440.15(6), supra, does not, in terms, preclude a person who suffers from a herniated condition from recovering compensation when that condition is aggravated by a subsequent accident....

...sation as for a ‘hernia resulting from injury by an accident,’ and leaves such employee to his remedy under section 440.02(19), Florida Statutes 1951, F.S.A. * * In this connection, it is pertinent to direct attention to the liberal exception to § 440.15(6) (f), supra, which provides: “If, however, it is shown that the employee had some chronic disease, or is otherwise in such physical condition that the commission considers it unsafe for the employee to undergo said operation, the compensation shall be paid as otherwise provided in subsection (4) of § 440.15, but not for exceeding thirty weeks.” There is evidence in the record contrary to that of Dr....

...His reasons are detailed in his order and we think contemplated by the words “or is otherwise in such physical condition that the commission considers it unsafe for the employee to undergo said operation, the compensation shall be paid as otherwise provided in subsection (4) of § 440.15, F.S., but not for exceeding thirty weeks.” *749 The full commission did not agree with the deputy commissioner on this point hut the deputy commissioner had the claimant before him, saw the witnesses testify, was familiar with the applic...

...Our review of an order granting such a motion is de novo. See Moya v. Trucks & Parts of Tampa, Inc., 130 So.3d 719, 721 (Fla. 1st DCA 2013). This litigation began when Claimant filed a petition for benefits seeking payment of impairment income benefits at the correct rate. Section 440.15(3)(c), Florida Statutes (2013), provides: Impairment income benefits are paid biweekly at the rate of 75 percent of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefits under s....

...1st DCA 1997). See also Belam Fla. Corp. v. Dardy, 397 So.2d 756, 758 (Fla. 1st DCA 1981) (holding "any overpayment of compensation is a gratuity in the absence of a finding that a reasonable basis exists for the overpayment") (emphasis omitted). "While section 440.15(13) has reversed the statutory presumption that an overpayment is a gratuity, it has not altered the mechanism specified in section 440.15(10) for perfecting entitlement to a social security disability offset." Monroe v....

...Asked to execute a Request for Social Security Disability Benefit Information (a DWC-14 form), she did so promptly on March 25, 1998, authorizing the Social Security Administration to release any information it had to her former employer and its servicing agent. See § 440.15(10)(c), Fla....

...eir intention to take not only an offset going forward, but also an additional deduction to recoup past overpayments: twenty percent of each biweekly permanent total disability benefits check until the putative overpayment was recovered in full. See § 440.15(12), Fla....

...We also agree that the evidence supports the deputy's denial of PTD benefits, because the record fails to show that claimant met the statutory standard required for an award of PTD benefits: that she was "not able uninterruptedly to do even light work due to physical limitation." § 440.15(1)(b), Fla....

...aimant had sustained some degree of impairment. To be entitled to permanent WL benefits, the injured worker is only required to establish that he or she suffered any PI pursuant to generally accepted medical standards for determining impairment. See § 440.15(3)(b)1, Fla....

...arning capacity, or (2) the total of the scheduled injuries, plus injury to the anatomical body as a whole, not resulting from the scheduled injury. Finally, the deputy must award benefits based upon whichever of those two determinations is greater. Section 440.15(3)(u), Florida Statutes (1975); Siver v....