Nicole Payne v. Allstaff Inc/Summit

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4650
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NICOLE PAYNE,
Appellant,
v.
ALLSTAFF INC/SUMMIT,
Appellees.
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On appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.
Date of Accident: January 20, 2017.
March 13, 2019
PER CURIAM.
In this workers’ compensation case, Claimant appeals the
Judge of Compensation Claims’ (JCC’s) order denying her claim
for temporary partial disability (TPD) benefits. The JCC gave
several reasons for his denial, including his finding that
Claimant’s disability and loss of wages were not caused by her
compensable workplace injury. Although the JCC appears to have
misconstrued the law on medical causation, we affirm because
Claimant ultimately did not satisfy her prima facie burden to
prove entitlement to TPD benefits.
In January 2017, Claimant developed a left shoulder rash that
she attributed to exposure to plastic at the workplace. The
Employer/Carrier (E/C) conditionally accepted compensability of
the rash under the pay-and-investigate provisions of section
440.20(4), Florida Statutes (2016). In early March 2017, the E/C
denied compensability when the treating physician opined that
Claimant was at maximum medical improvement from a rash that
had never been work-related in the first place. Based on previously
assigned work restrictions for the rash, Claimant subsequently
pursued claims for TPD benefits payable in January and February
2017.
TPD benefits under section 440.15(4)(a), Florida Statutes
(2016), are payable “only if overall maximum medical
improvement has not been reached and the medical conditions
resulting from the accident create restrictions on the injured
employee’s ability to return to work.” See Wyeth/Pharma Field
Sales v. Toscano, 40 So. 3d 795, 799 (Fla. 1st DCA 2010). As a
general rule, a claimant bears the burden of proving entitlement
to each requested workers’ compensation. See, e.g., Fitzgerald v.
Osceola Cty. Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008).
But under the express language of section 440.20(4), the E/C here
were obliged to provide “all benefits and compensation as if the
claim had been accepted as compensable” during the pay-and-
investigate period. Thus, Claimant met part of her burden to prove
entitlement to the claimed benefits: her rash must be considered a
compensable workplace injury through the date of the denial.
Because compensability was established by operation of
section 440.20(4), the JCC here erred as a matter of law to the
extent that he denied TPD benefits based on the medical evidence
that Claimant’s rash was never related to her employment.
Nevertheless, Claimant’s prima facie burden here also included
proof that her workplace injury caused a reduction of wages below
80% of her pre-injury average weekly wage. § 440.15(4)(a), Fla.
Stat. (2016). See, e.g., Toscano, 40 So. 3d at 799. As the JCC found,
Claimant provided only vague and unpersuasive testimony to
establish her post-injury wages and submitted no documentation.
Because the record contains no competent substantial evidence
demonstrating the requisite reduction of wages, Claimant cannot
satisfy her burden entitling her to the claimed benefits. For that
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reason, the JCC’s error as to section 440.20(4) is harmless, and the
benefits are properly denied. We, therefore, AFFIRM the order
below.
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 Kevin R. Gallagher of The Gallagher
Law Group, Fort Lauderdale, for Appellant.
H. George Kagan of H. George Kagan, P.A., Gulf Stream, for
Appellees.
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