Florida/Georgia Personal Injury & Workers Compensation

...aluation/reemployment assessment with a rehabilitation provider of its choosing. The purpose of this report was to recommend a cost-effective physical and vocational rehabilitation plan to assist Claimant in returning to suitable gainful employment. § 440.491(1)(e), Fla....

...To the contrary, the workers' compensation statutory scheme for the provision of reemployment/rehabilitation services to injured workers embraces and, in some instances requires that reemployment/rehabilitation services be provided by more than one individual. See § 440.491(4)(a)-(c), Fla....

...(2007) (stating that the carrier may require the claimant to receive a reemployment assessment with a qualified rehabilitation provider and, if provider recommends that claimant receive employment services, the carrier refer the claimant to a rehabilitation provider); see also § 440.491(5)(d), Fla....

...(2007) (explaining that if reemployment services have not been undertaken as prescribed by statute, the "provider, facility, or agency that performs a reemployment assessment shall not provide" reemployment services for "the employee it assesses"); § 440.491(6)(a), Fla....

...they are exempt from discovery. Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 110 (Fla. 1970). Here, the initial vocational provider furnished his initial reemployment assessment to Claimant and to the department within thirty days of its completion. § 440.491(4)(b), Fla....

...f Insured Services, ask us to reverse an order requiring them to pay temporary total disability benefits to Frederick Campbell, a former Ring Power employee, as a concomitant to his first twenty-six weeks in a rehabilitative training program. Citing section 440.491(6)(a), Florida Statutes (Supp.1994), the judge of compensation claims ordered the benefits, even though Mr....

...nd education which did not pay him wages. We affirm. In not revisiting a question the Legislature has now assigned to the Division of Workers' Compensation—"approv[ing] training and education or other vocational services for [an injured] employee," § 440.491(6)(a), Fla. Stat. (Supp.1994)—the judge of compensation claims recognized a jurisdictional change effected by section 440.491(6)(b), Florida Statutes (Supp.1994)....

...Under prior law, the Division merely proposed training and education which the judge of compensation claims could approve (or not). § 440.49(1)(a), Fla. Stat. (1993). Since January 1, 1994, however, the Division itself is authorized to "approve training and education or other vocational services for the employee." § 440.491(6)(a), Fla....

...A comparison of the present statute with its predecessor dispels any illusion that the judge of compensation claims retains jurisdiction over the determination of an injured worker's eligibility for training and education or other vocational services. Until section 440.491 was enacted, § 44, ch....

...Section 440.49(1)(d), Florida Statutes (1993), provided: Refusal to accept training and education as deemed necessary by the judge of compensation claims shall result in a 50-percent reduction in weekly compensation, including wage-loss benefits ... for ... the period of refusal. (Emphasis supplied.) Under section 440.491(6)(b), Florida Statutes (Supp.1994), however, this reduction in benefits is mandated for claimants who refuse training and education "that is recommended by the vocational evaluator and considered necessary by the division." Despite the Division's approval of a program of training and education for Mr. *205 Campbell, appellants argue that the statute does not require them to pay temporary total disability benefits during "the initial 26 week period ... for training and education." But section 440.491(6)(b), Florida Statutes (Supp....

...less, if such extended period is determined to be necessary and proper by a judge of compensation claims. However, a carrier or employer is not precluded from voluntarily paying additional temporary total disability compensation beyond that period. § 440.491(6)(b), Fla....

...�are sought by the injured employee and opposed by the employer does either have any right to a decision by the judge of compensation claims concerning "additional temporary total compensation while the employee receives ... training and education." § 440.491(6)(b), Fla....

...KAHN, J., dissents with written opinion. KAHN, Judge, dissenting. I am unable to find that the Florida Legislature intended to divest judges of compensation claims of the authority to decide entitlement to temporary total compensation when such is called for under section 440.491(6)(b), Florida Statutes (Supp.1994)....

...All of the physicians who offered opinions in this matter opined Claimant was permanently limited to sedentary or light work and could not return to his previous occupation. Instead of utilizing the reemployment and rehabilitation provisions mandated by section 440.491(1)-(9), Florida Statutes (2005), the E/C hired Richard Lopez, a vocational expert....

...The JCC entered a final order on September 28, 2001, finding that the statutory maximum entitlement to 104 weeks of temporary indemnity benefits included 11 weeks of rehabilitative temporary total benefits which Claimant received after he reached MMI, pursuant to section 440.491. According to the JCC, Claimant was due 58 weeks of temporary partial benefits instead of the 69 weeks of temporary partial benefits he requested. Claimant appealed, claiming that the temporary rehabilitative benefits he received pursuant to section 440.491 should not be *488 included within the 104 weeks of temporary disability benefits, .as limited in section 440.15....

...As authority for this proposition, these cases rely on section 440.15(2)(a) and (4), which expressly limit the number of weeks a claimant may be awarded temporary benefits before reaching MMI. Here, however, Claimant received temporary rehabilitative benefits after reaching MMI, as specifically contemplated by section 440.491....

...Florida Statutes (2002), our standard of review is de novo. See e.g., Depart v. Macri, 902 So.2d 271 (Fla. 1st DCA 2005). That statute explicitly provides that the employer’s right to conduct vocational evaluations must be carried out pursuant to section 440.491, which specifies how a carrier may obtain a re-employment assessment for a claimant who has suffered catastrophic or serious injury, and then re-employment services if the rehabilitation provider recommends such services....

...mer *890 (4) The injured-employee seeks- (Type-or-nature of medically necessary attendant care-sought-)- (Justification for such-attendant care).- ^(K) Transportation and/or mileage costs $— = (L) Rehabilitative -temporary total compensation under section 440.491(6)(b), Florida Statutes, from tn .at a. rate of $ .. per week. In support thereof, the injured employee further states as-follows; = (I) The employee-ha-s-reached M-M-I- = (2) As-authorized under section-440.491(6)(a), -Florida Statutes, the division has approved the--injured employee for-training and education-to-obfaim suitable gainful employment and is receiving-suchrtraining and education-; = (3) (Optional) In addition-to-the temporary total-comp...

...The-injured-employee- seeks-(describe type or-nature ■ of medically necessary attendant-care-sought) ■_ JastiBcatio-n-for-such-attendant care. = (K) Transportation and/or-mileage, costs $ = 4L) Rehabilitative temporary-total- compensation under-seetion--440.491(6)(b), Florida Statutes, from . to at, a rate -of-$- per wreak — T-n support thereof, the injured employee-further states as follows: === (4) The employee has reaehed-M-ML = 42) As-authorized under section 440.491(6)(a-)¡-Florida-Statutes, the division has approved the injured empleyee-fer-training and-education to obtain-suitable gainful employment and ise?eeemng-such-training and education....

...are within a reasonable time. The injured employee seeks attendant care because _ Reimbursement of mileage to and from medical care providers in the amount of $_ (see attached mileage statement). ___ Rehabilitative Temporary Total Compensation under Section 440.491(6) (b), Florida Statutes, from_to_ at a rate of $_per week....

...The E/C had paid TTD benefits from August 23, 1999, to September 5, 1999, but contended that these benefits were an overpayment. The issue, at the hearing, included whether the claimant was entitled to rehabilitative TTD benefits or rehabilitative TPD benefits pursuant to section 440.491(6)(b), Florida Statutes (Supp.1996), from August 23 1999, to December 16,1999....

...In addition, the JCC held that the claimant did not request TPD benefits, and even if the claimant had, the claimant’s earnings and wages exceeded any entitlement to such benefits. The JCC, therefore, denied the claimant’s request for attorney’s fees, costs, interest and penalties. Section 440.491(6)(b), Florida Statutes, provides that: When it appears that an employee who has attained maximum medical improvement requires training and education to obtain suitable gainful employment, the employer shall pay the employee additiona...

...Division terminated its sponsorship of the claimant’s training and determined that the claimant had abandoned the training program as of October 8, 1999. Once the Division approved the claimant for the training program, the mandatory provision in section 440.491(6)(b), Florida Statutes, required the E/C to pay TTD benefits....

...the claimant had abandoned the approved program as' of October 8, 1999. The Division’s termination of its sponsorship of the claimant’s education and training program — making the claimant ineligible for continued receipt of TTD benefits under section 440.491(6)(b)j Florida Statutes-was agency action of which the claimant failed to seek a section 120.57 hearing or any relief under the Administrative Procedure Act below....

...Therefore, the E/C cannot raise this issue before the JCC. *1186 The claimant also argues that he is entitled to TPD benefits from August 28, 1999, through October 8, 1999. We note that the claimant only requested rehabilitative TTD benefits and made no specific claim for TPD benefits. Section 440.491(6)(b), Florida Statutes, does not authorize the payment of TPD benefits while the claimant participates in an approved training and education program....

...easonable time. (1) The injured employee seeks. (Type or nature of medically necessary attendant care sought). (Justification for such attendant care). (K) Transportation and/or mileage costs $_. (L) Rehabilitative temporary total compensation under section 440.491(6)(b), Florida Statutes, from to at a rate of $ per week. In support thereof, the injured employee further states as follows: _ (1) The employee has reached MMI. _ (2) As authorized under section 440.491(6)(a), Florida Statutes, the division has approved the injured employee for training and education to obtain suitable gainful employment and is receiving such training and education....

...ble time. The injured employee seeks (describe type or nature of medically necessary attendant care sought) *688 Justification for such attendant care. (K) Transportation and/or mileage costs $_. (L) Rehabilitative temporary total compensation under section 440.491(6)(b), Florida Statutes, from to at a rate of $ per week. In support thereof, the injured employee further states as follows: _(1) The employee has reached MMI. _(2) As authorized under section 440.491(6)(a), Florida Statutes, the division has approved the injured employee for training and education to obtain suitable gainful employment and is receiving such training and education....

purpose of a reemployment assessment pursuant to section 440.491, Florida Statutes (1997). We affirm. Because

...e order under review and that the order also had no legally binding effect on the parties, we vacate the JCC’s order determining that the employer/carrier was entitled to a vocational evaluation of the claimant pursuant to section 440.15(l)(e) and section 440.491, Florida Statutes (1997)....

...come or benefits for over a year, and claimant and her husband lost their home through foreclosure and had been required to move to New York to live with their oldest son. For the reasons argued by the claimant, the JCC granted the motion to strike. Section 440.491(9), Florida Statutes (1999) provides that the JCC may not adjudicate a claimant as PTD “until or unless the carrier is given the opportunity to provide a reemployment assessment.” Thus, the employer/servicing agent argue, it was e...

...quest for the appointment of an emergency medical ad-visor pursuant to section 440.13(9)(c) made during or at the eve of trial. See also Amendments to the Florida Rules of Workers’ Compensation Procedure, 795 So.2d 863 (Fla.2000). Similarly, while section 440.491(9) contains no time limitations in seeking a re-employment assessment, when the facts known at the time of the pretrial conference show that it is reasonably likely that a re-employment assessment would be relevant and material, the employer/servicing agent must make the request for the assessment in a timely manner to provide an opportunity for the claimant to obtain a vocational expert prior to the merits hearing. We do not read section 440.491(9) “as allowing a party to disrupt the orderly and efficient trial of a workers’ compensation case,” Gonzalez, 719 So.2d at 357 , by waiting until the “eleventh hour” to request a re-employment assessment....

...orth in the order on review, that this court’s opinion in Eckert did not preclude the E/C from scheduling and obtaining a vocational evaluation of claimant. Claimant has correctly pointed out in his petition that, under sections 440.15(l)(e)l. and 440.491, Florida Statutes, as they existed prior to 2003, the E/C did not have the statutory authority to independently require a claimant to submit to a vocational evaluation; instead, the provisions, when read together, only provided the E/C with t...

...at 1189-90 . As the court explained in Eckert , Whatever right section 440.15(l)(e)l grants to the employer and carrier with regard to conducting “vocational evaluations or testing,” the statute expressly requires that that right be exercised pursuant to section 440.491. Thus, section 440.491 controls the manner of conducting re-employment assessments and vocational evaluations, and that statute clearly gives only the Division the authority to schedule a vocational evaluation. § 440.491(6)(a), Fla. Stat. (1999). Under subsection (6)(a) to section 440.491, while the carrier has the right to make a referral for vocational screening, the carrier does not have the right to schedule a claimant to undergo vocational evaluation....

...rmine whether an employee should be referred for a vocational evaluation. Id. at 1190. However, as the E/C have pointed out in their response to the petition, the Legislature amended section 440.15(l)(e)l. in 2003 to delete the phrase “pursuant to s. 440.491,” which the court in Eckert had specifically relied on in concluding that only the Division had the authority to schedule a vocational evaluation of a particular claimant....

...effective October 1, 2003, to provide that the carrier has the right to conduct such annual testing by a *753 rehabilitation provider of .the carrier’s choice.... [T]he amendment repeals the requirement that vocational testing be done pursuant to § 440.491, Fla. Stat. Since it was the reference to § 440.491, Fla....

...Arguably petitioner should have sought review of the JCC's order by appeal. See Flowers v. Above-All-Roofing, Inc., 737 So.2d 594, 595 (Fla. 1st DCA 1999) (reviewing by appeal an order determining that the E/C were "entitled to a vocational evaluation of the claimant pursuant to section 440.15(l)(e) and section 440.491, Florida Statutes (1997)”); Barnett Bank of Volusia County v....

...Statutes (Supp.1994)”); see also Lockheed Space Operations v. Langworthy, 686 So.2d 665, 666 (Fla. 1st DCA 1996) (reviewing by appeal an order denying the E/C's "motion to compel claimant ... to participate in a reemployment assessment pursuant to section 440.491(4)(Supp.l994)”) (footnote omitted)....

...Lockheed Space Operations and Aetna Life and Casualty Company (employer and carrier respectively, hereinafter e/c), appeal an order of the Judge of Compensation Claims (JCC) denying their motion to compel claimant Bettie Langworthy to participate in a reemployment assessment [1] pursuant to section 440.491(4)(Supp.1994)....

...She reached maximum medical improvement (MMI) in 1993. Since that time she has been employed part-time and receiving wage loss benefits. The e/c believe Ms. Langworthy is underemployed, and sent her a letter requesting her participation in a reemployment assessment pursuant to section 440.491(4), Florida Statutes (Supp.1994). Ms. Langworthy refused to attend, and the e/c moved to compel her participation. The JCC denied the motion to compel, ruling that section 440.491(4) cannot be applied retroactively to this claimant. As the basis for his ruling, the JCC reasoned that section 440.491(4) shifts the cost of providing rehabilitation back to the employer/carrier, and is therefore substantive. The issue in this case is whether section 440.491(4) is substantive or procedural. We conclude that section 440.491(4)(Supp.1994) is procedural and, accordingly, we reverse....

...If that was the determining factor, the JCC would have erred in concluding that the rights of the e/c had been substantively altered by returning to the law as it existed at the time of the claimant's injury. However, this case does not involve the question of shifting the cost of rehabilitation. Subsection 440.491(4)(a) provides, in pertinent part: "The carrier may require the employee to receive a reemployment assessment as it considers appropriate...." The provision at issue in this case is merely an assessment, an evaluative tool made available to the e/c at their own cost but also at their own option....

...al diagnosis, treatment, and prognosis; includes conferences with the employer, physician, and claimant; and recommends a cost-effective physical and vocational rehabilitation plan to assist the employee in returning to suitable gainful employment." § 440.491(1)(d), Fla....

...Eckert, appeals an order of the Judge of Compensation Claims (JCC) granting the motion of the employer/carrier, Publix Supermarkets, Inc. and Specialty Risk Services, Inc., ap-pellees, to compel Eckert to attend a vocational evaluation. Finding that the statutory preconditions of section 440.491(6)(a), Florida Statutes (1999) for obtaining a vocational evaluation were not met, we reverse....

...eriod during which the Claimant continues to refuse to appear. In the motion, the employer/carrier asserted that it had scheduled a vocational evaluation for the claimant pursuant to section 440.15(l)(e)l. In response, the claimant argued that under section 440.491(6)(a) the employer/carrier was not permitted to mandate a vocational evaluation....

...Claimant appealed. This court has stayed the JCC’s order until issuance of the mandate in this case. Section 440.15(l)(e)l, Florida Statutes (1999), provides that “[t]he employer’s or carrier’s right to conduct vocational evaluations or testing pursuant to s. 440.491, continues” even after an employee has been accepted or adjudicated as entitled to PTD benefits under the Workers’ Compensation Act....

...Pelle, 684 So.2d 311, 312 (Fla. 1st DCA 1996). This provision has been described as “an investigatory tool for determining the status of the claimant and assisting in the goal of returning injured workers to full employment.” Id. As provided in section 440.491(2), it is the intent of section 440.491 to set forth certain analytic devices to be used to predict the scope of an employee’s long term disability and to provide re-employment services to an employee in order to assist the employee in returning to work as soon as is medically feasible. Both section 440.15(l)(e)l and section 440.491(4) were enacted as part of the 1994 Amendments to the Workers’ Compensation Act....

...use these provisions have been determined to have effected only a procedural change in the law and not a substantive change. See Lockheed Space Operations v. Langworthy, 686 So.2d 665, 666-67 (Fla. 1st DCA 1996); Pelle, 684 So.2d at 312 . Similarly, section 440.491(6) also effected only a procedural change. Id. Included within section 440.491 are provisions governing “re-employment assessments,” in section 440.491(4), and “vocational evaluations,” in section 440.491(6)....

...al diagnosis, treatment, and prognosis; includes, conferences with the employer, physician, and claimant; and recommends a cost-effective physical and vocational rehabilitation plan to assist the employee in returning to suitable gainful employment. Section 440.491(1) (d), Florida Statutes (1999)....

...A “vocational evaluation” is defined as, [A] review of the employee’s physical and intellectual capabilities, his or her aptitudes and achievements, and his or her work related behaviors to identify the most cost-effective means toward the employee’s return to suitable gainful employment. Section 440.491(1) (h), Florida Statutes (1999). Under section 440.491(4)(a) and (b), a carrier may require an employee to receive a “re-employment assessment” when it considers such to be appropriate and “shall authorize only a qualified rehabilitation provider to provide that re-employment assessment.” Under section 440.491(6)(a), an employer or a carrier is not granted the authority to require an employee to undergo a “vocational evaluation.” Rather, under this subsection, a carrier may refer an employee to the Division of Workers’ Compensation of...

...The evaluator’s job is to decide if training and education is appropriate. Once assigned, the evaluator has 30 days to submit the results to the Division, employer, and employee, (citation omitted). Id. at § 17.05[1]. We conclude that section 440.15(l)(e)l was written to ensure that section 440.491 applied to PTD claimants- as well as claimants suffering temporary total disability, temporary partial disability or wage loss. See § 440.491(3)(a). Whatever right section 440.15(l)(e)l grants to the employer and carrier with regard to conducting “vocational evaluations or testing,” the statute expressly requires that that right be exercised pursuant to section 440.491. Thus, section 440.491 controls the manner of conducting re-employment assessments and vocational evaluations, and that statute clearly gives only the Division the authority to schedule a vocational evaluation. § 440.491(6)(a), Fla.Stat. (1999). Under subsection (6)(a) to section 440.491, while the carrier has the right to make a referral for vocational screening, the carrier does not have the right to schedule a claimant to undergo vocational evaluation....

...ine whether an employee should be referred for a vocational evaluation. Thus, here, before the employer/carrier could file a motion to compel a vocational evaluation before the JCC, the employer/carrier was required to show that the preconditions of section 440.491(6)(a) were met....

...rred in entering an order compelling claimant to undergo a vocational evaluation. Accordingly, the JCC’s order is REVERSED. Our reversal is without prejudice to the employer/carrier’s requesting a re-employment assessment under the provisions of section 440.491(4), Florida Statutes (1999)....