Meghan Anderson v. Broward County Sheriff's Office and Gallagher Bassett Services, Inc. , 251 So. 3d 318 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5151
_____________________________
MEGHAN ANDERSON,
Appellant,
v.
BROWARD COUNTY SHERIFF'S
OFFICE and GALLAGHER
BASSETT SERVICES, INC.,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Lliana Forte, Judge.
Date of Accident: December 14, 2014.
July 25, 2018
PER CURIAM.
In this workers’ compensation appeal, Claimant challenges
the order issued by the Judge of Compensation Claims (JCC)
denying her request for a $2,000 advance pursuant to section
440.20(12)(c), Florida Statutes, because she failed to establish a
financial need for the advance. Claimant contends that, because
the stated purpose for the advance was to pay for an independent
medical examination (IME) in support of a pending claim for
continued medical treatment, the JCC should not have considered
her lack of financial need. As explained below, we disagree with
Claimant and affirm the order denying the advance.
Factual Background
Claimant is a deputy sheriff who suffered a compensable
injury in 2014. She was out of work for two two-week periods and
then on light duty for approximately nine months before
ultimately returning to full duty. She has at least a one percent
permanent impairment rating.
In July 2017, Claimant filed a petition for benefits seeking
continued medical care and a $2,000 advance. Several months
later, Claimant filed a separate motion for a $2,000 advance to pay
the expenses of an IME. At the hearing on the motion, Claimant
testified that her base salary was $75,000 per year, which she
augmented by overtime in the form of off-duty security details.
Claimant further testified that she was unable to work these
details during her various periods of being out of work or having
work restrictions, but she acknowledged that for the two years
preceding the petition, the only effect on her income was due to her
two pregnancies (she was on her second maternity leave at the
time of the hearing), not her work injury.
The employer/carrier opposed the request for an advance,
arguing among other things that Claimant did not show a financial
need for the advance. Claimant responded that she was not
required to prove financial need because she established eligibility
for an advance based on her impairment rating and the fact that
the purpose of the advance was to pay the expenses of an IME to
support her pending petition for benefits. The JCC rejected
Claimant’s “novel argument” and denied the motion for an advance
because she failed to present evidence that her income was
insufficient to pay for an IME nor did she otherwise demonstrate
a financial need for the advance.
Analysis
Orders concerning advances are typically reviewed for an
abuse of discretion. See ESIS/Ace Am. Ins. Co. v. Kuhn, 104 So.
3d 1111, 1113-14 (Fla. 1st DCA 2014). Here, however, because the
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issue before us – what a JCC may consider when deciding whether
to award an advance – is a legal one, our review is de novo. See
Lombardi v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA
2004) (holding statutory interpretation is subject to de novo
review).
Section 440.20(12)(c)2. provides:
In the event the claimant has not returned to the same or
equivalent employment with no substantial reduction in
wages or has suffered a substantial loss of earning capacity or
a physical impairment, actual or apparent:
* * *
2. An advance payment of compensation not in
excess of $2,000 may be ordered by any [JCC] . . .
after giving due consideration to the interests of the
person entitled thereto.
(emphasis added).
The purpose of this statute is to provide “a stopgap to help a
claimant avoid defaulting with creditors while awaiting the
potential distribution of workers' compensation benefits, when the
reduction in income is caused by the injury.” Bonner v. Miami
Dade Public Schools, 148 So. 3d 152, 153 (Fla. 1st DCA 2014). The
first paragraph of the statute sets forth the circumstances in which
a claimant is eligible for an advance and, in this case, there is no
dispute concerning Claimant’s eligibility because she has a
physical impairment as indicated by her impairment rating. Thus,
the question before us is whether, when “giving due consideration
to the interests of” an otherwise eligible claimant, a JCC may
consider a claimant’s financial need when the stated purpose for
the requested advance is to obtain an IME in furtherance of a
pending petition for benefits.
This court has previously required a claimant seeking an
advance to establish a “legitimate interest” or an “adequate
justification” along with evidence that the claimed need for the
advance has “some plausible nexus to [the] principal purpose” of
chapter 440, namely “to address medical and related financial
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needs arising from workplace injuries.” Kuhn, 104 So. 3d at 1114-
15. In Kuhn, the court explained that, to hold otherwise, would
“result in automatic $2000 advances from E/Cs to claimants
despite no connection to a pending claim for medical or related care
or even a demonstrated need for the funds.” Id. at 1114.
Claimant argues that her intent to use the requested advance
to obtain an IME in furtherance of her pending petition for benefits
satisfies the nexus requirement set forth in Kuhn. We agree with
this contention given that, in Taylor v. Air Canada, 136 So. 3d 786(Fla. 1st DCA 2014), the court held that using an advance to take
the deposition of a witness who may advance a claim’s
compensability satisfied this requirement. See also Hidden v. Day
& Zimmerman, 202 So. 3d 441, 443 (Fla. 1st DCA 2016)
(suggesting in dicta that a claimant could pursue an advance to
pay for an IME). But Claimant goes one step further, arguing that,
because she has satisfied the nexus requirement and the stated
purpose of the requested advance is to pay for litigation costs,
nothing further – particularly financial need – should be
considered. Claimant also suggests that Taylor supports this
argument. We disagree on both counts.
First, nothing in section 440.12(12)(c) supports the notion that
financial need should not be considered when the nexus
requirement is met. Although a claimant is “not required to live a
pauper’s life” to be eligible for an advance, Bonner, 148 So. 3d at
153, that does not mean that the JCC is precluded from
considering the claimant’s financial need (or lack thereof) when
determining whether to award an advance – even if the purpose of
the advance is to fund litigation costs. To hold otherwise would
frustrate the purpose of the advance statute and would contravene
the language in section 440.20(12)(c)2 that requires the JCC to
give “due consideration” to the “interests” of the claimant without
placing any limit on the type of interests that can be considered.
See Kuhn, 104 So. 3d at 1112-14 (holding that the award of an
advance to a claimant who “was current on all her financial
obligations and had no imminent need for the money” was
erroneous because “[t]o hold otherwise would result in automatic
$2000 advances from E/Cs to claimants despite no connection to a
pending claim for medical or related care or even a demonstrated
need for the funds.”) (emphasis added).
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Second, nothing in Taylor supports the notion that a request
for an advance to fund litigation costs precludes consideration of a
claimant’s financial need. Financial need was not an issue in
Taylor because the claimant in that case had a substantial
reduction in wages as a result of her alleged accident and injury
and an inability to return to work for an extended period of time.
See 136 So. 3d at 787. Here, by contrast, Claimant had no
reduction in her wages as a result of the work injury for at least
past two years preceding the motion for an advance. Thus, Taylor
is distinguishable and provides no support for the proposition that
the JCC is precluded from considering the claimant’s financial
need in circumstances such as this case. Indeed, we see no reason
why the claimant’s financial need (or lack thereof) should not be
considered when the purpose of an advance is to pay for litigation
costs rather than other expenses such as rent or utility bills.
Conclusion
Based on the foregoing, we hold that a JCC may consider a
claimant’s financial need for an advance pursuant to section
440.20(12)(c)2 even when the purpose of the advance is to pay for
expenses related to establishing compensability or entitlement to
benefits. Here, the JCC did just that in denying Claimant’s motion
for an advance. Accordingly, we affirm the JCC’s order.
AFFIRMED.
WETHERELL, ROWE, and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Bill McCabe, Longwood, and Robert Winess, Boca Raton, for
Appellant.
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Marybell Rajo of Pyszka, Blackmon, Levy, Kelley & Rajo, Fort
Lauderdale, for Appellees.
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