Opinion
No. 98-2694.
Opinion filed June 30, 1999.
An appeal from an order of the Judge of Compensation Claims, Thomas G. Portuallo, Judge.
Brian B. Bolton and Philip R. Augustine of Langston, Hess, Bolton, Znosko Helm, P.A., Maitland, for Appellants.
No appearance for Appellee.
In this workers' compensation case, the employer/carrier (E/C) appeals an order awarding claimant a cash advance of $2,000 and raises numerous points for reversal. We affirm all points and address only that issue which contends the judge of compensation claims (JCC) abused his discretion in approving the cash advance, because there was no evidence of legal entitlement to future benefits from which the E/C could recoup the advance.
Claimant suffered a compensable injury consisting of a dislocated right shoulder and complete rotator cuff tear on January 25, 1998. While still recovering from his injury and receiving temporary total disability (TTD) benefits, claimant filed a motion pursuant to section 440.20(12), Florida Statutes (1997), seeking a $2,000 cash advance. In support of his request, he maintained that he had sustained a substantial change of income as a result of the industrial injury, which adversely affected his ability to pay rent and utilities. At the time of the hearing, claimant was just four days post-surgery for repair of the torn rotator cuff. Following the hearing, the JCC granted the $2,000 cash advance and directed repayment thereof at the rate of $20 per week from future TTD or temporary partial disability (TPD) payments or other income benefits.
The E/C argues that the JCC erred in ordering the advance because there is no evidence indicating that claimant would be eligible to receive any benefits in the future from which the E/C could recover the sum advanced. As there was no finding of permanent disability, the E/C further contends that claimant is not eligible for benefits other than TTD or TPD and continued payment of same is speculative, at best. Finally, it urges that a cash advance prior to permanent disability is premature, and it cites Murphree Bridge Corp. v. Brown, 492 So.2d 451 (Fla. 1st DCA 1986), in support thereof.
We cannot agree with the E/C's contentions. First, from a plain reading of section 440.20(12), we find nothing therein requiring, as a precondition to an advance payment to a claimant who is temporarily and totally disabled, proof that he or she must achieve in the reasonably foreseeable future some type of permanent disability status. Subsection 440.20(12)(c) allows an advance simply upon a claimant's showing that he or she has suffered either a substantial loss of earning capacityor a physical impairment. As for the employer's reliance on Murphree, we find the facts therein significantly distinguishable from those at bar.Murphree involved a cash advance from future wage-loss benefits that were to be paid under the former wage-loss statute to the injured worker on a monthly basis. The court reversed the cash advance on the theory that "there is no identifiable indebtedness associated with the wage-loss provisions [providing that liability for payment of same accrues monthly] which could support an award of an advance payment which encompasses an amount more than the amount due as a monthly benefit."Id. at 453. The employee in the present case receives TTD benefits on a biweekly basis and will continue to receive them for a maximum of 104 weeks under section 440.15(2)(a), Florida Statutes (1997), unless he is able to return to work earlier.
What, in fact, the E/C appears to argue is that it would be materially prejudiced by being forced to make an advance payment to a claimant who might be able to reestablish an earning capacity at any time, because once indemnity benefits are terminated, it would be exceedingly difficult for the E/C to recoup from the claimant any outstanding unpaid balance of the amount advanced. Although this assumption may, in fact, be realized, the legislature has not seen fit to codify the contingency of employer prejudice as to advances not exceeding $2,000, as here. The only conditions pertinent to the inquiry of the appropriateness of such an advance are those stated in section 440.20(12)(c), and this subsection does not mention the potential of prejudice. Contrast section 440.20(12)(d), providing, as to disputes involving cash advances ofmore than $2,000, the JCC must find that the advance is in the best interests of the claimant, will not materially prejudice the rights of the E/C, and is reasonable. CompareSanford v. Alachua County School Board, 425 So.2d 113 (Fla. 1st DCA 1982), wherein this court rejected the E/C's argument that it would be materially prejudiced if it were forced to make a payment of more than $2,000 to a disabled claimant who might later regain an earning capacity. We noted that the legislature had specified certain contingencies in the statute as it then existed affecting the question of possible employer prejudice, but that a claimant's subsequent resumption of an earning capacity was not one of those listed. Id. at 114.
Because the judge's order below was supported by competent, substantial evidence showing that the $2,000 cash advance was necessary due to claimant's substantial loss of earning capacity as a result of the compensable accident, which rendered him temporarily and totally disabled, the order is
AFFIRMED.
WOLF and WEBSTER, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.