Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2854 _____________________________ NANCY PANNELL, Appellant/Cross-Appellee, v. ESCAMBIA COUNTY SCHOOL DISTRICT and RISK MANAGEMENT SERVICES, INC., Appellees/Cross-Appellants. _____________________________ On appeal from an order of the Judge of Compensation Claims. Nolan S. Winn, Judge. Date of Accident: August 31, 1999. April 15, 2020 DUNCAN, J. SCOTT, ASSOCIATE JUDGE. In this workers’ compensation case, Appellant/Cross- Appellee, the claimant below (Claimant), appeals the Judge of Compensation Claims’ (JCC’s) order denying her claim for permanent total disability (PTD) benefits. Appellees, the employer/carrier/servicing agent (E/C), cross-appeal the JCC’s award of temporary total disability (TTD) benefits and supplemental income benefits. For the reasons explained below, we reverse the JCC’s denial of PTD benefits and entitlement to penalties, interest, costs, and attorney’s fees. We affirm the issues on cross-appeal without further comment. 1 Background This is a twenty-year-old workers’ compensation claim, and therefore it is unsurprising that the medical and procedural history leading up to the final hearing is extensive. But, because this case turns on purely legal issues, it is unnecessary to duplicate the JCC’s commendable effort in summarizing the evidence. Instead, the focus here is on the relevant undisputed facts that apply to the legal errors. During the proceedings below, the parties stipulated that Claimant sustained compensable injuries to her neck, back, and right shoulder, and that Claimant sustained a psychiatric injury as a result of the accident, resulting in depression. The E/C continued to provide medical care for Claimant’s compensable conditions through the date of the final hearing, which occurred in April 2018. Claimant previously successfully petitioned for disability retirement via the Florida Retirement System in June 2003, listing conditions that pre-existed her workplace injuries. Upon retirement, Claimant was forty-nine years old. She turned fifty the following year. The E/C ceased paying TTD in January 2002 when Claimant had exhausted her 104 weeks of eligibility for these benefits. Claimant was not yet at overall maximum medical improvement (MMI) at that time. However, in 2017 (fourteen years post- retirement), in the wake of the Florida Supreme Court’s decision in Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016), the E/C paid additional TTD benefits for the period February 20, 2002, through April 9, 2003. 2 Although assigned permanent 1 Our reversal on the PTD issue and affirmance on the issues raised in the cross-appeal render moot Claimant’s separate issue on appeal concerning temporary partial disability benefits. 2 The court in Westphal held that the 104-week statutory cap on temporary benefits in effect at the time was unconstitutional 2 impairment ratings for some of her injuries in 2003, Claimant did not reach overall MMI until May 27, 2011. Nevertheless, the JCC found that the parties agreed Claimant would have reached “statutory MMI based upon 260 weeks of [TTD] benefits being exhausted” as of December 30, 2004. In 2017, Claimant (by that time 62 years old) filed petitions for benefits seeking, inter alia, TTD benefits from January 1, 2002, and PTD benefits from November 10, 2004 (as amended at the final hearing). The JCC ultimately awarded TTD from April 10, 2003, through December 30, 2004 (resulting in Claimant receiving 260 weeks of TTD), but denied all PTD benefits. The JCC’s grounds for denying PTD are discussed below. The JCC’s Order Applying the 1999 version of section 440.15(1), Florida Statutes, the JCC explained that entitlement to PTD benefits required Claimant to prove she suffered a “catastrophic injury” as defined in section 440.02(37)(f), Florida Statutes. 3 This in turn required applying a five-step analysis. See Butler v. City of Jacksonville, 980 So. 2d 1250 (Fla. 1st DCA 2008). This test asks: 1) is claimant performing substantial gainful activity; 2) does claimant have a severe impairment; 3) does claimant’s severe impairment meet or equal an impairment specifically listed in 20 C.F.R., part 404, Subpart P, Appendix 1; 4) can claimant perform his/her past relevant work; and 5) based on claimant’s age, education, and work experience, can claimant perform other similar work found in significant numbers in the national economy? Id. at 1252. and reinstituted the 260-week limit from the pre-1994 version of the statute. 194 So. 3d at 327. 3 A catastrophic injury is defined as any injury that would qualify a claimant to receive social security disability benefits under the Social Security Act as it existed on July 1, 1992. See § 440.02(37)(f), Fla. Stat. (1999). 3 The JCC found that Claimant satisfied steps one, two, and four, but not step three. 4 Thus, to qualify for PTD, Claimant had to satisfy step five. The JCC determined that Claimant did not, explaining as follows: Timing is of particular importance with regards to step 5. Claimant’s date of birth is 05-04-54. As . . . Claimant’s vocational expert testified, age is a crucial factor in a social security disability determination. In fact, both vocational experts agree that in 2003 when Claimant retired at the age of 49, as transferable skills are irrelevant prior to age 50, Claimant was not at that time disabled. Both also agree such finding would change on 05-04-04 when Claimant turned 50 simply due to the mere passage of time and Claimant simply reaching the age of 50 despite the fact all of her then treating physicians . . . had released her to return to sedentary work. In other words, simply due to the passage of time, Claimant would suddenly be deemed disabled and unemployable as she would have no transferable skills from her previous work as a school bus driver or a school bus aide. In other words, according to both vocational experts, when Claimant retired in 2003 for reasons totally unrelated to the industrial accident and the injuries sustained therein, she was employable and not disabled. I find therefore as Claimant was not disabled in 2003 when she retired and as she retired for reasons totally unrelated to the industrial accident her retirement in 2003 severed the causal connection between the industrial accident and Claimant’s entitlement to permanent and total disability benefits. Citing Siegel v. AT&T Communications, 611 So. 2d 1345 (Fla. 1st DCA 1993), the JCC acknowledged that the mere fact of retiring does not foreclose eligibility for PTD benefits. The JCC noted that the claimant in Siegel suffered a deterioration in her 4 If a claimant fails to establish disability at step three, a claimant’s residual functional capacity is assessed and used to determine steps four and five. Butler, 980 So. 2d at 1252. 4 work-related condition after her retirement and found that Claimant here in this case did not. The JCC then analyzed Siegel and Houck v. Lee County Board of Commissioners, 995 So. 2d 1102 (Fla. 1st DCA 2008), to find that “[w]hile Mr. Houck’s retirement severed the causal relationship between his disability and the industrial accident, he presented evidence his work related injuries worsened subsequent to retirement thus re-establishing such causal connection. Unlike Mr. Houck, Claimant has presented no evidence her work-related conditions have deteriorated since her retirement.” As explained below, it is in this reasoning, and in his interpretation and application of the cited cases, that the JCC erred. And because this case turns on the application of the law to undisputed facts, our review is de novo. See Sedgwick CMS v. Valcourt-Williams, 271 So. 3d 1133, 1135 (Fla. 1st DCA 2009) (holding where relevant facts are undisputed, court reviews de novo the JCC’s application of law to those facts). Discussion The JCC’s primary error was to focus on Claimant’s retirement date, as well as her age and disability status at that time, because the relevant date for determining whether a claimant qualifies for PTD is the date of either overall MMI or at the expiration of her entitlement to temporary benefits, whichever occurs first (assuming the claimant can prove that she would remain totally disabled when overall MMI – what the JCC referred to as “statutory MMI” – is reached). See Westphal, 194 So. 3d at 320. As noted, Appellant exhausted her entitlement to temporary benefits as of December 30, 2004, well before she reached overall MMI in 2011. Despite finding that both vocational experts testified Claimant would qualify as disabled on May 4, 2002, under the statutorily mandated social security standards, the JCC denied PTD benefits based, in part, on the “mere passage of time and Claimant simply reaching the age of 50.” In doing so, the JCC committed an error similar to that committed by the judge in Houck v. Lee County Board of Commissioners. 5 Houck involved the same version of the statute at issue here, and the claimant also retired before reaching MMI (thus, before eligibility for PTD). The claimant in Houck sought PTD from November 14, 2005. In the order denying PTD benefits: the JCC found that Claimant established that his workplace injury was “catastrophic” as that term is defined in section 440.02(34), Florida Statutes (1995). In finding that Claimant retired “at least by 1998,” however, the JCC concluded that it would be inconsistent with the purpose and policy of Florida’s Workers’ Compensation Law that “compensation would now be payable to replace something, to wit: the ability to earn wages, that [Claimant] himself long ago surrendered when he retired.” The JCC found that Claimant did not meet his burden of proof and denied permanent total disability benefits. 995 So. 2d at 1103–04 (footnote omitted). In reversing, the Houck court held that the JCC applied the incorrect standard and instructed the JCC to “make a factual determination as to whether there is conclusive proof that Claimant has a substantial earning capacity following the November 14, 2005, date of maximum medical improvement” and, if not, to award benefits. Id. at 1104. The court also noted that “[t]he public policy concerns which govern the JCC’s ruling were addressed by the Florida Legislature in section 440.15(1)(b), Florida Statutes (2003), a statute which is inapplicable to Claimant for his April 21, 1995, date of accident.” Id. at 1104 n.1. The JCC here erred by including in his analysis a “time” element that does not exist in the statute, and in effect injected a “policy” rationale similar to the one the JCC used in Houck as a basis for denying the PTD claim, and which this court made clear was addressed by the statute’s amendment in 2003. This was just as erroneous here as it was in Houck. The entitlement to workers’ compensation benefits operates in real time–benefits have the potential to become ripe, due, and owing along a linear timeline, not all at once as in a tort case. The JCC erred by reading into Houck a requirement that a claimant 6 who retires prior to when the possibility of entitlement to PTD ripens must show a deterioration in her condition upon reaching MMI in order to establish entitlement to PTD benefits. No such requirement was enunciated in either Siegel or Houck, or even in Southern Bell Telephone & Telegraph Co. v. Seneca, 512 So. 2d 1005 (Fla. 1st DCA 1987), upon which the JCC also relied. The JCC erroneously determined that the Claimant’s retirement severed the causal connection and, for entitlement to PTD benefits post-retirement, the Claimant had a two-fold burden: 1) to re- establish causation between the compensable injuries and her inability to return to gainful employment; and 2) to establish that the compensable injuries had deteriorated to such a degree after retirement that she was now disabled. In fact, the analysis used in Siegel and Seneca had no application here because the standard for proving entitlement to PTD benefits differed at the time those cases were decided. In Siegel, the claimant’s accident occurred in 1988 or 1989. 611 So. 2d at 1347. In Seneca, the claimant’s accident occurred in 1980. 512 So. 2d at 1005. For dates of accidents between August 1, 1979, and December 30, 1993, section 440.15(1)(b) provided: (b) Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof or paraplegia or quadriplegia shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts. In such cases, no compensation shall be payable under paragraph (a) 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 [available within a 100-mile radius of the injured employee’s residence (added in 1990)] due to physical limitations. (emphasis added). The provision’s focus was on whether an employee can demonstrate he cannot engage in any light work due to physical limitations. Contrast that with the vocational analysis found in the 7 social security analysis at step 5–“whether, based on the claimant’s age, education, and work experience, the claimant can perform other similar work [similar to past relevant work] found in significant numbers in the national economy.” Butler, 980 So. 2d at 1252. Thus, because Claimant was disabled based on the five-step sequential analysis on December 30, 2004, the date on which all TTD benefits were exhausted, and remained so on May 27, 2011, when she reached overall MMI, she met the “catastrophic injury test,” and the burden shifted to the E/C to offer conclusive proof of a substantial earning capacity. By using her retirement date as the central component to determine whether the Claimant was entitled to PTD, the JCC committed legal error. At the hearing, the E/C’s vocational expert testified that Claimant was unable to perform any of the potential jobs she identified in her labor market survey. Because the E/C offered no evidence to establish that Claimant retained a substantial earning capacity, we reverse the JCC’s denial of PTD benefits and remand for entry of an order finding Claimant is entitled to PTD benefits effective December 31, 2004, along with any other benefits or costs due and owing as a result of such award. REVERSED. WOLF and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Kimberly A. Hill of Kimberly A. Hill, P. L., Fort Lauderdale, and David M. Cohen of the Law Office of David M. Cohen, P.A., Hollywood, for Appellant/Cross-Appellee. Joseph L. Hammons of The Hammons Law Firm, Pensacola, for Appellees/Cross-Appellants. 8