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

DEBORAH O'CONNOR,                    NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-0623

NORTH OKALOOSA
MEDICAL CENTER AND
GALLAGHER-BASSETT
SERVICES, INC.,

      Appellees.


_____________________________/

Opinion filed December 12, 2014.

An appeal from an order of the Judge of Compensation Claims.
Nolan S. Winn, Judge.

Date of Accident: November 10, 2004.

John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.

Cindy R. Galen and Barbara J. Glas of Eraclides, Gelman, Hall, Indek, Goodman &
Waters, LLC, Pensacola, for Appellees.




PER CURIAM.

      In this workers’ compensation case, Claimant appeals the judge of

compensation claims’ (JCC) denial of temporary total disability (TTD) benefits for
a defined period, based on his ruling that the benefits at issue were barred by res

judicata. Because we conclude that the JCC erred by applying the doctrine of res

judicata in this case, we reverse.

      The facts in this case are undisputed. In 2004, Claimant sustained a

compensable injury to her right, dominant hand, which ultimately resulted in a

diagnosis of reflex sympathetic dystrophy/ complex regional pain syndrome of the

right hand and wrist.      This condition was accepted as compensable by the

Employer/Carrier (E/C) and it provided extensive medical treatment, including

injections from an authorized anesthesiologist. On January 14, 2011, following over

six years of medical treatment, Claimant’s authorized treating anesthesiologist

placed her at maximum medical improvement (MMI); the doctor also opined that

Claimant was unable to work. The E/C acted on this MMI date by suspending all

temporary disability benefits, as is required by section 440.15(2)(a), Florida Statutes

(2004); Claimant had not exhausted here entitlement to 104 weeks of temporary

benefits when this suspension occurred.

      In September 2011, by which time all Claimant’s other treating medical

professionals had also placed Claimant at MMI, Claimant filed a petition for

permanent total disability (PTD) benefits based on the January 14, 2011, date of

MMI; the petition necessarily, under section 440.32(3), Florida Statutes (2004),

averred that Claimant had reached MMI. The E/C contested Claimant’s entitlement

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to PTD benefits, but not on the ground she had not reached MMI; to the contrary, in

the pretrial stipulation pertaining to Claimant’s PTD claim, both parties stipulated

that Claimant reached MMI on January 14, 2011. On March 1, 2012, the JCC

entered an order (the prior order), the decretal portion of which reads (all emphasis

from the original): “Claimant’s claim for permanent total disability (PTD) benefits

from 01-14-11 is not ripe for adjudication and is therefore DENIED WITHOUT

PREJUDICE.” The body of the order explains that the JCC reached this disposition

based on his finding that Claimant had not reached MMI, making the claim

“premature.” The JCC did not base his finding regarding MMI on a statement of

such from a medical professional, but rather based on his interpretation of the

anesthesiologist’s testimony, which established that Claimant’s medical recovery

had plateaued but there was a possibility of further recovery once Claimant received

additional treatment for a non-compensable neck injury, which treatment was on

hold pending a dispute with another carrier. In the prior order, the JCC also found

that Claimant was totally disabled from January 14, 2011, and thereafter. The prior

order was not appealed by either party.

      After her claim for PTD benefits was denied “without prejudice” and without

an adjudication thereon, Claimant then filed a petition seeking TTD benefits from

January 14, 2011, and continuing. The E/C raised the defense of res judicata against

Claimant’s entitlement to TTD benefits from January 14, 2011, through February

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14, 2012, the date of the hearing that gave rise to the prior order. In the order on

appeal, the JCC accepted the E/C’s defense, reasoning that Claimant “could have”

pled a claim for TTD benefits as an alternative to the PTD claim addressed in the

prior order, in the “event that the facts were not determined to be as Claimant

perceived.” The JCC awarded, however, TTD benefits beginning on February 15,

2012 (the day after the hearing giving rise to the prior order), through September 19,

2012 (when Claimant reached MMI). This appeal followed, challenging only the

denial of TTD benefits that the JCC concluded were barred by res judicata.

      A lower court’s ruling that bars relief on the grounds of res judicata is

reviewed de novo. See Felder v. Fla. Dep’t of Mgmt. Servs., 993 So. 2d 1031, 1034

(Fla. 1st DCA 2008) (citing Campbell v. State, 906 So. 2d 293, 295 (Fla. 2d DCA

2004)). The doctrine of res judicata can be applicable to workers’ compensation

cases. See Buena Vista Constr. Co. v. Capps, 656 So. 2d 1378, 1380 (Fla. 1st DCA

1995). The general principle behind the doctrine of res judicata is that a final

judgment by a court of competent jurisdiction is absolute and puts to rest every

justiciable, as well as every actually litigated, issue. See Caron v. Systematic Air

Servs., 576 So. 2d 372, 375 (Fla. 1st DCA 1991) (citing Gordon v. Gordon, 59 So.

2d 40 (Fla. 1952)). However, this principle only applies when the elements of res

judicata are present and the doctrine properly applied. See id. Here, the doctrine was

not properly applied.

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      The very foundation of the doctrine of res judicata is the existence of a “final

judgment” on the merits in a previous action. See Engle v. Liggett Group, Inc., 945

So. 2d 1246, 1259 (Fla. 2006); see also Smith v. Time Customer Servs., 132 So. 3d

841, 844 (Fla. 1st DCA 2013). Thus, where there is an absence of a prior final

adjudication on the merits, res judicata does not apply. In the instant case, the prior

order expressly withholds adjudication on the entirety of Claimant’s claim for PTD

benefits from January 14, 2011, and continuing, with no portion of the claim being

adjudicated with finality because the JCC concluded the claim was premature;

further, the denial of the entire claim was expressly made “without prejudice.” The

dismissal of a prematurely filed claim does not bar a subsequent action, under the

doctrine of res judicata. See Shuck v. Bank of Am., N.A., 862 So. 2d 20, 24 (Fla.

2d DCA 2003). Although it could be argued that the JCC could or should have

adjudicated some portion of the PTD claim with finality in the prior order, he did

not. Hence, under the particular facts of this case, res judicata does not operate to

bar Claimant’s subsequent claim for TTD benefits – or in fact any other claim.

      Based on the foregoing, the appealed order is AFFIRMED in part (relative to

the TTD benefits awarded), REVERSED in part (relative to the TTD benefits

denied), and REMANDED for the entry of an order consistent with this opinion.

PADOVANO, THOMAS, and CLARK, JJ., CONCUR.




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