                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JACQUELINE SINCLAIR,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-4975

MANORCARE HEALTH
SERVICES - DUNEDIN, and
HCR MANORCARE,

      Appellees.


_____________________________/

Opinion filed August 7, 2017.

An appeal from an order of Judge of Compensation Claims.
Stephen L. Rosen, Judge.

Date of Accident: January 28, 2014.

Bradley G. Smith and Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A.,
Lakeland, for Appellant.

Marcie L. Baker of The Law Office of Marcie L. Baker, P.A., Zephyrhills, for
Appellees.




PER CURIAM.

      Although Appellant, a workers’ compensation claimant, has voluntarily

dismissed her appeal of an order of the Judge of Compensation Claims (JCC), this
Court is confronted with Appellees’ cross-appeal, challenging the portion of the

order that awards temporary total disability (TTD) benefits for the period of

February 4, 2014, through February 14, 2014, and associated penalties, interest,

costs, and attorney’s fees (PICA). For the reasons that follow, we reverse that award.

      It is undisputed that Claimant sustained a compensable injury on January 28,

2014, went home, and did not see an authorized treating physician until she

attempted to return to work on February 4, 2014. The doctor took her entirely off

work as of that date. Further, Claimant did not attend a follow-up appointment

scheduled for February 14, 2014, and apparently did not return to the authorized

doctor until almost a year later. As a result, the doctor declined to opine that

Claimant’s work restrictions remained in place beyond February 14, 2014. The

authorized doctor was never asked whether Claimant’s disability began before he

first saw her (for example, on the date of accident), and never provided such an

opinion.

      In the meantime, the Employer/Carrier (E/C) paid Claimant TTD benefits for

only the period from February 12 through 18, 2014. Claimant then filed a claim for

TTD benefits for a much broader period of time – from the date of accident and

continuing – together with PICA. The JCC made the following findings:

      [A]s of February 14, 2014, the Claimant unintentionally abandoned her
      medical care authorized by the Employer/Carrier for the industrial
      accident. Because she did not keep her schedule[d] appointment with

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      the authorized facility on February 14, 2014, I find that the Claimant is
      temporarily and totally disabled as of that date but not beyond that date.
      ...
      Claimant was not placed on temporary total disability status until she
      saw an authorized treating physician on February 4, 2014. Even
      assuming that she became temporarily and totally disabled beginning
      January 29, 2014, she would still not have been disabled for 21 days
      when she abandoned authorized medical care on February 14, 2014.

      This finding – that the disability period was February 4 through 14, 2014 – is

supported by competent substantial evidence in the record. But an application of the

law to these findings indicates that the JCC erred to the extent the TTD award

includes the first seven days of the disability period. Section 440.12(1), Florida

Statutes (2013), provides that “[c]ompensation is not allowed for the first 7 days of

disability, except for [medical] benefits” unless “the injury results in more than 21

days of disability.” Notable is that this seven day exemption applies to the first days

of the disability period rather than the first days after the date of accident; although

often conceded or proven that these periods overlap, it was neither conceded nor

proven here that Claimant was unable to work for the first days after her accident for

reasons due to the compensable accident.

      Given the error of law, remand is required for correct application of section

440.12(1) to the facts as found by the JCC. The JCC’s award of credit to the E/C for

TTD payments for the period of February 12 through 18, 2014, stands. If, as it

appears, the credit will satisfy TTD for the remainder of the disability period, then


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the E/C does not owe any TTD benefits for that period, nor PICA thereon. The E/C

has waived any claim for reimbursement of any overpayment.

      REVERSED in part, AFFIRMED in part, and REMANDED for entry of an

order consistent with this opinion.

ROWE, MAKAR, and JAY, JJ., CONCUR.




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