Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1766 _____________________________ INTAL CONSTRUCTION, INC./ZURICH NORTH AMERICA, Appellants, v. MOISES MANCERA, Appellee. _____________________________ On appeal from an order of the Office of the Judges of Compensation Claims. Iliana Forte, Judge. Date of Accident: December 11, 2018. March 31, 2021 PER CURIAM. The Employer/Carrier (E/C) challenges an order of the Judge of Compensation Claims (JCC) awarding retroactive temporary partial disability (TPD) benefits to Moises Mancera (Claimant). The E/C raises several arguments for reversal, but we write only to address the argument that the JCC’s factual basis for the retroactive TPD award is ambiguous. We affirm all other issues without further discussion. Facts Claimant, a construction worker, hit his head on a metal beam, lost consciousness, and fell inside the bucket of a boom lifter when a forklift struck the boom lifter from below. The E/C accepted compensability of a workplace injury and authorized medical care. The accepted injuries included the left ankle, left shoulder, neck, and head. Claimant received conservative care for his complaints of pain from various physicians and was assigned light duty work restrictions. In August 2019, Claimant’s orthopedic surgeon placed him at maximum medical improvement (MMI) from his ankle injury and assigned a zero percent permanent impairment rating. The E/C paid Claimant TPD benefits until all authorized medical providers had released Claimant to full duty work. In November 2019, Claimant filed a petition for benefits (PFB) seeking retroactive TPD benefits. To support his request, Claimant submitted the expert medical opinion of his independent medical examiner, Dr. Katzell. He also submitted, over the E/C’s objection, medical records from Dr. Murray at MD Now. Dr. Murray’s first report, filed February 15, 2019, only recommended a transfer of care to an orthopedist and a neurologist. But his second report (DWC-25), filed March 17, 2020, recommended a transfer of care to an orthopedist for left knee and left shoulder pain, asserted that Claimant was not at MMI, and assigned work restrictions. In response, the E/C acknowledged that Claimant was not at overall MMI from his compensable injuries to his neck and left shoulder but asserted that no retroactive TPD benefits were due because he had been released to full duty work. Yet, based on a finding that Claimant was not “capable of engaging in regular work regarding his neck and shoulder injuries,” the JCC granted the claim for TPD benefits from July 9, 2019, to the present. Analysis 2 The standard of review for an award of TPD benefits is competent, substantial evidence. Fardella v. Genesis Health, Inc., 917 So. 2d 276, 277 (Fla. 1st DCA 2005). Under section 440.15(4)(a), Florida Statutes (2018), TPD benefits are payable only “if overall [MMI] 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, e.g., Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795, 799 (Fla. 1st DCA 2010); see also § 440.02(13), Fla. Stat. (2018) (defining “disability”). Medical evidence is necessary to support an award of TPD benefits. See Massey Servs., Inc. v. Knox, 131 So. 3d 797 (Fla. 1st DCA 2013). But here, the JCC’s factual finding of medical restrictions based on the medical evidence is ambiguous. The JCC stated in the order on appeal that she accepted Dr. Katzell’s opinion that Claimant is restricted to sedentary work. But this is not an accurate characterization of Dr. Katzell’s opinion. Dr. Katzell concluded that Claimant is not at MMI from injuries to his shoulder, lower back, and left knee and that Claimant is restricted to sedentary work. That said, neither the lower back nor the left knee is an accepted compensable injury. And Dr. Katzell did not address any restriction attributable solely to the compensable shoulder injury. For these reasons, Dr. Katzell’s opinion is not competent, substantial evidence of medical restrictions for Claimant’s compensable workplace injuries. The JCC also discussed Dr. Murray’s reports when she awarded Claimant retroactive TPD benefits. Although the JCC acknowledged that there were unexplained differences between the reports and found that there was no evidence the reports had been altered, she did not make any attempt to reconcile those differences. See Landmark Towers, LLC v. Ibarguen, 954 So. 2d 43, 44−45 (Fla. 1st DCA 2007) (holding that a JCC may resolve conflicts in the evidence). Instead, the JCC merely noted that the E/C did not argue “any irregularity” with the DWC-25 and accepted the form’s medical directions. She found that the DWC- 25 form “continues the Claimant on physical therapy, refers the Claimant to an orthopedist, provides work restrictions for the left 3 ankle, back of head, neck and left shoulder and finds the Claimant is not at MMI.” Because the DWC-25 identifies work restrictions limited to the accepted compensable injuries, this form may have provided competent, substantial evidence to support an award of TPD benefits. But the language in the order on appeal calls into doubt whether the JCC relied on this form. Even if we were to assume the JCC relied on the DWC-25, this report alone does not show that the assigned work restrictions are retroactive. See Knox, 131 So. 3d at 797 (reversing retroactive award of TPD benefits because no medical evidence established work restrictions during that time). Claimant asserts that we should affirm the order on appeal because “reasonable inferences” from the earlier medical reports show that he has continuously been subject to work restrictions for the accepted compensable injuries. But those reports document work restrictions assigned only for the compensable left ankle and head injuries, which were arguably rescinded by subsequent treating providers. Considering the conflicting medical evidence on that issue as well as the JCC’s apparent reliance on restrictions for the neck and shoulder, we are reluctant to draw any inferences that have never been acknowledged by the JCC. Because the JCC’s findings of work restrictions based on the medical evidence are ambiguous and insufficient to support an award of TPD benefits, we AFFIRM in part and REVERSE in part. The case is REMANDED for further proceedings and clarification in accordance with this opinion. ROWE, MAKAR, and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Rosalind Milian of MKRS Law, P.L., Coral Gables, for Appellants. 4 Michael J. Winer of Winer Law Group, P.A., Tampa, and Randall T. Porcher of Morgan & Morgan, Tallahassee, for Appellee. 5