          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2639
                  _____________________________

MATTHEW MARRAFFINO,

    Appellant,

    v.

STERICYCLE/SEDGWICK CMS,

    Appellees.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
Keef F. Owens, Judge.

Date of Accident: December 10, 2014.

                        November 30, 2018


PER CURIAM.

     In this workers’ compensation case, Claimant appeals the
Judge of Compensation Claim’s (JCC’s) dismissal of his claim for
temporary partial disability (TPD) benefits for lack of jurisdiction.
In dismissing the claim, the JCC reasoned that adjudication of the
claim would require him to resolve the same issue concerning the
date of maximum medical improvement (MMI) that is on appeal in
Marraffino v. Stericycle/Sedgwick CMS, Case Number 1D18-0757
(Marraffino I). We reverse because the JCC continued to retain
jurisdiction over claims to entitlement to benefits becoming due at
different times from those addressed in the prior order.
      Under section 440.15(4)(a), Florida Statutes (2014), TPD
benefits are payable if MMI has not been reached and the medical
conditions resulting from the injury create restrictions, not an
absolute prohibition, on a claimant’s ability to return to work. See,
e.g., Wyeth/Pharma Field Sales. v. Toscano, 40 So. 3d 795, 799
(Fla. 1st DCA 2010). The date of MMI is defined as “the date after
which further recovery from, or lasting improvement to, an injury
or disease can no longer reasonably be anticipated, based on
reasonable medical probability.” § 440.20(10), Fla. Stat. (2014). A
finding of MMI is precluded where a claimant is entitled to
remedial care — i.e., where there is a reasonable expectation that
the necessary treatment will bring about some degree of recovery
— even if that treatment ultimately proves ineffective. See
Delgado v. Omni Hotel, 643 So. 2d 1185, 1186 (Fla. 1st DCA 1994)
(citing Rolle v. Picadilly Cafeteria, 573 So. 2d 94, 97 (Fla. 1st DCA
1991)); see also Rosa v. Progressive Emp’r Servs., 84 So. 3d 472
(Fla. 1st DCA 2012).

     Here, Claimant sustained a compensable injury to his right
knee on December 10, 2014. In September 2017, Claimant filed a
petition for benefits seeking, among other things, payment of TPD
benefits from August 19, 2017, and continuing. On January 22,
2018, the JCC entered an order awarding nine days of TPD
benefits but denying TPD benefits after August 28, 2017, because
he found that Claimant was at MMI as of that date. That order
and finding is the subject of the appeal in Marraffino I. Prior to
any disposition in Marraffino I, Claimant filed another petition for
benefits seeking TPD benefits allegedly payable after August 28,
2017. In the order currently on appeal, the JCC found he had no
jurisdiction and dismissed the TPD claim without reaching the
merits.

    Our standard of appellate review here is de novo. See Jacobsen
v. Ross Stores, 882 So. 2d 431, 432 (Fla. 1st DCA 2004) (holding
subject matter jurisdiction is reviewed de novo).

    In his order, the JCC found that the prior order included any
subsequent claims for TPD benefits because Claimant sought
benefits “to the present and continuing.” As authority, the JCC
misplaced his reliance on McDonnell Douglas Corp. v. McDonald,
620 So. 2d 1146 (Fla. 1st DCA 1993). The court in that case —

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based on previous opinions — struck language that awarded
temporary partial disability benefits “through the present and
continuing” to substitute the following: “to the date of the hearing
and for so long as such benefits are proper.” Id. (emphasis added)
(citing Rodeway Inn v. Bryant, 615 So. 2d 857, 858 (Fla. 1st DCA
1993)); Workman v. McDonnell Douglas Corp., 590 So. 2d 1035,
1036-37 (Fla. 1st DCA 1991); Wiley Jackson Co. v. Webster, 522 So.
2d 987, 988 (Fla. 1st DCA 1988)). Contrary to the JCC’s
assumption, the point of the substituted language was to avoid an
“open-ended” award of ongoing benefits that would not be subject
to challenge. See e.g., Webster, 522 So. 2d at 988.

     Claimant concedes the claim for TPD benefits before the date
of the January 22, 2018, order was properly dismissed and thus
limits this appeal to claims after the date of that order. But, in the
appealed order here, the JCC went on to find that he lacked
jurisdiction over later TPD benefits even assuming the prior order
concerned only the time period through January 22, 2018. The
JCC concluded he did not have jurisdiction to address that claim
because it required resolution of the same issue on appeal in
Marraffino I — specifically, whether Claimant was at MMI on
August 28, 2017.

     The JCC’s conclusion, however, is based on the faulty premise
that once Claimant was at MMI, he must forever stay at MMI. This
court previously recognized that a change of condition may entitle
a claimant to further remedial care even after assignment of a date
of MMI. See, e.g., Ivey v. City of Sarasota, 533 So. 2d 881, 881-82
(Fla. 1st DCA 1988) (citing Oak Crest Enter, Inc., v. Ford, 411 So.
2d 927, 929 (Fla. 1st DCA 1982)). Furthermore, “workers’
compensation benefits, by design, are to be paid in real time.”
Benniefield v. City of Lakeland, 109 So. 3d 1288, 1291 (Fla. 1st
DCA 2013).

     Here, Claimant is seeking entitlement to TPD benefits which
allegedly became due at a different (i.e., later) time period from
that denied in the prior order. Although the JCC “noted” that
Claimant was making the same argument that he is not at MMI
and that the circumstances had not changed, this is a question of
fact that goes to Claimant’s prima facie case. In other words, the
JCC here could ultimately find that Claimant has not met his

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burden of proving entitlement to the subsequent benefits not
covered by the prior order, 1 but it does not follow that he lacked
the jurisdiction to do so.

    For the forgoing reasons, we reverse the order below and
remand for consideration of the merits of the claim for TPD
benefits payable after January 22, 2018.

    REVERSED and REMANDED for further proceedings consistent
with this opinion.

WOLF, LEWIS, and WETHERELL, 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, for
Appellant.

Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for
Appellees.




    1   This determination will depend largely on the disposition of
Marraffino I because (a) the underlying issue in that case is
whether any additional treatment Claimant may receive on his
knee short of a total knee replacement (such as the HA injections
awarded in the order on appeal in this case) is remedial or
palliative, (b) the JCC found in the order on appeal in Marraffino
I that additional injections “would only constitute palliative care,”
and (c) at the hearing in this case, Claimant was asserting that he
is no longer at MMI solely because the HA injections sought in the
current petition for benefits (and awarded in the order on appeal
in this case) are, and always have been, remedial in nature.

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