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

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

v.                                      CASE NO. 1D15-4077

TARGET/SEDGWICK CMS,

      Appellees.


_____________________________/

Opinion filed June 7, 2016.

An appeal from an order of the Judge of Compensation Claims.
Marjorie Renee Hill, Judge.

Date of Accident: August 24, 2012.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.

David S. Gold and David B. Stauber of Litchfield Cavo, LLP, Fort Lauderdale, for
Appellees.




PER CURIAM.

      In this workers’ compensation case, Claimant appeals a final order entered by

the Judge of Compensation Claims (JCC) denying permanent total disability (PTD)

benefits, supplemental PTD benefits, and the associated penalties, interest, costs, and
attorney’s fees. Because the JCC erred as a matter of law when she found that

Claimant could not be deemed to be at maximum medical improvement (MMI) from

her workplace injury because she was not “totally disabled,” we reverse and remand

for further findings.

      In Westphal v. City of St. Petersburg, 122 So. 3d 440, 441 (Fla. 1st DCA

2013) (en banc), this court held that a claimant is deemed to be at MMI, and therefore

eligible to assert a claim for PTD benefits, after exhausting the maximum 104 weeks

of entitlement to temporary disability benefits. See also Gomez-Lujano v. Palm

Beach Grill-Houston’s Rest., 178 So. 3d 546, 547-48 (Fla. 1st DCA 2015)

(“Because Westphal makes a claimant ‘eligible to assert a claim for permanent and

total disability benefits,’ [by supplanting the need to establish MMI attainment] but

. . . does not automatically entitle a claimant to the payment of such benefits,

Claimant was still required to present evidence that he otherwise meets the legal

standards for such an award.”). Here, the undisputed facts establish that Claimant

exhausted her entitlement to temporary disability benefits.

      In finding that Claimant cannot be deemed at MMI by operation of law, the

JCC focused on evidence that Claimant is currently working for the Employer for

approximately twelve hours per month. In doing so, the JCC incorrectly assumed

that Claimant cannot be deemed at MMI unless she is also “totally disabled” in the

sense of a complete physical incapacity to work. Furthermore, because the JCC

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erroneously concluded that Claimant’s current employment prevents a finding of

deemed MMI, she did not continue the analysis to determine if Claimant had

otherwise met the legal standards for PTD entitlement. In particular, the JCC failed

to address Claimant’s evidence supporting her claim that her current employment is

actually sheltered employment and that she is nevertheless PTD based on the

combination of work-related physical restrictions and vocational factors. See Blake

v. Merck & Co., 43 So. 3d 882, 883 (Fla. 1st DCA 2010) (finding proof of PTD is

not limited to proof of medical incapacity to work).

      Because the JCC erred when she found Claimant is not deemed at MMI by

operation of law, we REVERSE and REMAND for a determination whether

Claimant otherwise meets the legal standards for PTD entitlement to include

findings of fact on the issue of sheltered employment.

WETHERELL and KELSEY, JJ., and DEMPSEY, ANGELA C., Associate Judge,
CONCUR.




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