Vocational Rehabilitation in Florida Workers’ Compensation Cases: A Comprehensive Review of Statutory and Case Law
Vocational rehabilitation in Florida workers’ compensation cases is guided by provisions within F.S. Ch. 440 as well as the case law interpreting same. This article outlines the many amendments to F.S. §440.49 since 1979 and further tracks the case law interpreting the ever-changing provisions of this law.
The Law Before August 1, 1979
Prior to the 1979 amendments to Ch. 440’s vocational rehabilitation provisions, in order to be eligible for workers’ compensation rehabilitation benefits in Florida, claimants had to establish that their disability probably would be permanent in nature. The benefits were limited to 40 weeks of additional temporary total disability while claimant was receiving training in the use of artificial members and appliances or receiving training or education under an appropriate rehabilitation program. The remaining expenses, such as books, tuition, and supplies, were the responsibility of the Division of Workers’ Compensation, specifically the Workers’ Compensation Administration Trust Fund. F.S. §§440.49 and 440.50 (1977).
The Law After August 1, 1979, But Before October 1, 1989
• Statutory Provisions
When an employee has suffered an injury covered by Ch. 440 and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee is entitled to rehabilitation services. The employer or carrier provides such injured employee with appropriate training and education for suitable gainful employment. “Suitable gainful employment” means employment or self-employment which is reasonably attainable in light of the individual’s age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practical and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers’ Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier. When it appears that rehabilitation is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to reasonable and proper rehabilitation services for a period not to exceed 26 weeks, which period may be extended for an additional period not to exceed 26 additional weeks, if such extended period is determined to be necessary and proper by the deputy commissioner. F.S. §440.49 (1979).
The Division of Workers’ Compensation shall establish by rule the minimum qualifications, standards, and requirements that must be met in order to be listed in the directory of qualified rehabilitation service providers, facilities, and agencies. Such minimum qualifications, standards, and requirements shall be based on those generally accepted within the various specific fields of rehabilitation for which the provider, facility, or agency is to be approved. The division has the authority to monitor and evaluate qualified rehabilitation service providers, facilities, and agencies to ensure their continued compliance with the minimum qualifications, standards, and requirements. A rehabilitation service provider, facility, or agency may not be authorized by an employer or carrier to provide any rehabilitation services in this state to an injured worker unless such provider, facility, or agency is listed or has been approved for listing in the directory as being qualified to provide the specific service to be authorized. “Rehabilitation service providers, facilities, and agencies” means vocational rehabilitation counselors, and public and private agencies, companies, and corporations which provide to injured workers, vocational rehabilitation services including vocational retraining, testing, counseling, evaluation, and job placement services. F.S. §440.49 (1983).
• Scope and Duration of Benefits Awardable
A substantial portion of the early litigation pertaining to rehabilitation under the 1979 law centered around the procedural requirements set forth in F.S. §440.49(1). One procedural requirement was that the parties be afforded an opportunity to be heard before rehabilitation benefits were awarded. F.S. §440.49(1)(a). In Butch’s Concrete v. Henderson, 414 So. 2d 652 (Fla. 1st DCA 1982), the deputy commissioner awarded vocational rehabilitation even though the claimant had not requested such benefits. Because neither party was advised or on notice that rehabilitation benefits might be awarded, the court reversed the deputy commissioner’s award but stated that the claimant was free to reapply for the benefits by complying with F.S. §440.49(1).
Another procedural requirement was that the injured employee be evaluated by the Division of Workers’ Compensation before rehabilitation services were awarded. F.S. §440.49(1). A number of early cases, specifically Paradise Fruit Co. v. Floyd, 425 So. 2d 9 (Fla. 1st DCA 1982), and Baily v. Hawes Chrysler -Plymouth, 410 So. 2d 986 (Fla. 1st DCA 1982), held that an injured worker who had not applied to the Division of Workers’ Compensation for a rehabilitation evaluation was not entitled to an award of rehabilitation services.
However, estoppel was sometimes used successfully against the employer/carrier. In Hurricane Fence Industries v. Bozeman, 413 So. 2d 822 (Fla. 1st DCA 1982), the carrier refused the claimant’s requests for rehabilitation. The claimant contacted the Department of Health and Rehabilitative Services, Division of Vocational Rehabilitation, which helped him enroll in a meat-cutting school. The court held that the employer/carrier, having failed to avail itself of the services of the Division of Workers’ Compensation, could not assert the claimant’s failure to do so himself as a defense to his rehabilitation claim. The court warned that a “do nothing” approach on the part of the employer/carrier with regard to rehabilitation services was not a “viable alternative” under the rehabilitation features of this law.1
The correct procedure to be followed by an injured employee seeking rehabilitation was set forth and explained in detail in Walker v. New Fern Restorium, 409 So. 2d 1201 (Fla. 1st DCA 1982). As set forth in Walker, ordinarily, rehabilitation should be provided voluntarily by the employer or carrier when the injured employee is no longer able to earn pre-injury wages. When, as in this case, the employer/carrier refuses to voluntarily accept responsibility for rehabilitation, the Division of Workers’ Compensation must be notified by either the employer, the carrier, or the claimant. Once notified of the claimant’s application for rehabilitation, the division takes over the responsibility for evaluating whether or what type of rehabilitation should be received. After giving the parties an opportunity to be heard, the division should refer the claimant to a qualified physician or facility for the purpose of determining “the practicality of, the need for, and the kind service, treatment, or training necessary and appropriate to restore the employee to suitable gainful employment.” A report setting forth the findings and recommendations of the evaluating physicians or facilities must be prepared by the division and sent to the deputy commissioner. On receipt of the report, the deputy must afford the parties with an opportunity for a hearing and may order the employer/carrier to provide the treatment recommended in the report or other necessary rehabilitation.
In Viking Sprinkler Co. v Thomas, 413 So. 2d 816 (Fla. 1st DCA 1982), the employer/carrier asserted a right of first choice in the selection of rehabilitation providers and programs for the injured worker. The district court found no basis in F.S. §440.49 for the employer/carrier’s assertion of such a right and declared that if the employer/carrier was granted the right to choose the form of rehabilitation, “rehabilitation would soon become more a myth than a reality.” In Cardwell v. Leon Kelley’s Nursery, 438 So. 2d 136 (Fla. 1st DCA 1983), the employer provided the claimant with a vocational counselor. The claimant requested reassignment to another rehabilitation provider. The deputy commissioner refused to reassign the claimant. Considering the nature of the claimant’s disability and the promising opportunity of employment secured for the claimant by the original rehabilitation provider, the court ruled that the deputy did not err in denying the request.
In companion cases, Bammac, Inc. v. Grady, 500 So. 2d 274 (Fla. 1st DCA 1987), and Munford, Inc. v. Necrason, 499 So. 2d 911 (Fla. 1st DCA 1986), the claimant was referred by his attorney to a rehabilitation company owned by the claimant’s attorney and members of his law firm. Although the court affirmed the award of rehabilitation benefits in both cases, it held that such referrals were an unacceptable practice. The court found no prohibition against attorneys owning or operating a company providing rehabilitation. However, the court held that “attorney-owned rehabilitative services have no place in the statutorily mandated rehabilitation program for injured workers so far as workers represented by the same attorneys are concerned.” 500 So. 2d at 282. The court also held that neither the claimant’s attorney nor the employer/carrier had the right to choose the rehabilitation vendor. If the parties could not agree, the judge would decide.
In Viking Sprinkler Co., the employer/carrier asserted that it discharged its duty to provide the claimant with rehabilitation by offering specialized job placement assistance. The court rejected the notion that a specialized job placement service was synonymous with rehabilitation. Testing and evaluation procedures to determine whether rehabilitation was necessary and desirable to restore the injured employee to suitable gainful employment constituted rehabilitation services for which an employer/carrier could be responsible. Bammac, Inc. v. Grady, 500 So. 2d 274 (Fla. 1st DCA 1987).
In Lowry v. Bob Evans Farms, 666 So. 2d 977 (Fla. 1st DCA 1996), the court pointed out that simply finding a job for a claimant does not satisfy the training and education provisions of §440.49. The choice of suitable employment by the claimant involves many factors including aptitude, interest, desire, and motivation to engage in a certain type of work.
In Cenvill Communities, Inc. v. Brown, 409 So. 2d 1147 (Fla. 1st DCA 1982), the employer/carrier argued that a claimant did not qualify for rehabilitation program benefits until actually beginning the classroom program. The court disagreed, holding that an injured employee was entitled to rehabilitation temporary total disability benefits during the period of counseling and program development necessary to the rehabilitative process.
In Town v. Bates File Co., 532 So. 2d 65 (Fla. 1st DCA 1988), on remand the deputy commissioner granted a claim for rehabilitation benefits. The deputy also directed the employer/carrier to indemnify and hold the claimant harmless from any claim or demand made by the U.S. government for repayment of a $2,100 tuition bill paid by the government through a Pell grant. On appeal, the claimant argued that the $2,100 should be paid directly to him. The district court reversed and remanded for determination of the issue of whether the claimant had repaid the government for some or all of the Pell grant. The district court stated that if the claimant had repaid the grant, the employer/carrier was to reimburse him and pay the balance to the government; if the claimant had not, the employer/carrier should be ordered to repay the government for the grant, whether or not the claimant was required to repay it.
In Aino’s Custom Slip Covers v. DeLucia, 533 So. 2d 862 (Fla. 1st DCA 1988), rev. denied, 544 So. 2d 199, the deputy commissioner ordered the rehabilitation company to oversee and supervise the claimant’s rehabilitation, home modification, vehicle purchase, further nursing care needs, and further medical care and management. The district court affirmed the award of rehabilitation oversight by the rehabilitation service company but reversed the extent of the authority granted it, noting that medical care is the responsibility of the authorized treating physician. The proposed plan was supported solely by the rehabilitation counselor’s testimony rather than the testimony of any treating or primary care physician. See also Diamond R. Fertilizer v. Davis, 567 So. 2d 451 (Fla. 1st DCA 1990).
In Kash ’N Karry v. Wallace, 553 So. 2d 222 (Fla. 1st DCA 1989), the deputy commissioner awarded the cost of attending a computer training program, $13,000, as well as an advance of 26 weeks of temporary total disability benefits. It was unclear whether this award was a lump sum advance under F.S. §440.20(13)(d) or rehabilitation benefits under F.S. §440.49. A rehabilitation counselor testified that the computer training program was not necessary to return the claimant to his pre-injury employment status. The court, in reversing, held that the award was inappropriate, either as a lump sum advance or as rehabilitation benefits.
The Law After October 1, 1989, But Before January 1, 1994
• Statutory Provisions
When an employee has suffered an injury covered by Ch. 440 and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee is entitled to appropriate training and education. Upon request by the employee or the employer, the Division of Workers’ Compensation shall provide such injured employee with appropriate training and education for suitable gainful employment. Within 10 days of the request, the division shall respond by assigning a public or private evaluator to conduct an evaluation to determine if training and education are appropriate, unless the injured employee and the employer/carrier have agreed upon an evaluator to conduct the evaluation and included the evaluator’s name in the request. Within 30 days of the assignment, the evaluator shall submit the results of the evaluation to the division, employer, and employee.
Based on the results of the evaluation, the division is authorized to spend moneys from the Workers’ Compensation Administration Trust Fund established by §440.50, for the purpose of assisting such injured employees to obtain appropriate training and education, if necessary. No judge of compensation claims shall assume jurisdiction to approve or disapprove training and education under this provision until the division has advised all parties as to the training and education program it may propose if such training and education program is to be funded out of the fund established by §440.50.
If any vocational rehabilitation services or training and education services are voluntarily provided to the employee by the employer or carrier, those services shall be reported to the division within such time as the division may prescribe by rule, so that the division may perform utilization review of such services. Neither the employer, carrier, or injured employee is required to furnish or accept voluntary vocational rehabilitation services. “Voluntary vocational rehabilitation services” means services helpful to restore injured employees to suitable gainful employment. Voluntary vocational rehabilitation within the Workers’ Compensation Act includes two major types of services: medical care coordination, which includes but is not limited to coordinating physician and mental restoration services such as medical, psychiatric, or therapeutic treatment for the injured employee; and vocational services coordination, which includes but is not limited to vocational services needed by the injured employee to secure suitable gainful employment. Such services include counseling for adjustment to disability, vocational counseling, vocation and functional capacity assessments, job seeking education and training, self-employment assistance, and selective job placement.
A training and education or rehabilitation service provider, facility, or agency shall prepare an individualized written rehabilitation plan on all compensable workers’ compensation cases which require three or more counseling sessions, vocational evaluations, training, work evaluations, or placement. Prior to implementing any plan, the plan shall be signed by the carrier or employer, if self-insured, as verification of acceptance of the plan.
• Scope and Duration of Benefits Awardable
In Forklifts of Central Florida v. Butler, 556 So. 2d 794 (Fla. 1st DCA 1990), a claim was made for a vocational rehabilitation evaluation. However, the JCC awarded vocational rehabilitation benefits. Finding that the judge’s award exceeded the scope of the claim and the issues at hearing, the district court reversed without prejudice to the claimant to petition further for vocational rehabilitation benefits.
In Robinson v. Volusia County Council on Aging, 568 So. 2d 55 (Fla. 1st DCA 1990), a rehabilitation counselor directed the claimant to enroll in school and earn her GED, which the claimant did at a cost of over $500. The JCC denied the claim for reimbursement of rehabilitation expenses, finding that rehabilitation was not authorized and that the procedures for obtaining rehabilitation had not been followed. On appeal, the claimant argued that the rehabilitation counselor was an agent of the employer/carrier, because it had long been known that the counselor was the employer/carrier’s rehabilitation agent. The court rejected the agency argument because there was no showing or representation by the principal.
In Hillsborough County School Board v. Brown, 565 So. 2d 867 (Fla. 1st DCA 1990), the claimant’s injuries included a vertigo problem which precluded her from driving. The claimant returned to work for the employer at her pre-injury wage but needed her husband and son drive her to and from work. The judge awarded rehabilitation benefits to the claimant in the form of reimbursement to her for transportation expenses to and from work. The court reversed because the claimant was able to return to work and achieve her pre-injury wage without the need for rehabilitation.
In Brosnan v. Sourbeck Roofing, Inc. , 578 So. 2d 460 (Fla. 1st DCA 1991), the employer/carrier provided the claimant with remedial courses in English and math and paid temporary total disability benefits. Subsequently, the claimant requested retraining in a marine engine program. The court concluded that the remedial English and math courses were rehabilitation services as contemplated by F.S. §440.49(1)(a) and that the employer/carrier was entitled to credit for 26 weeks of remedial courses provided together with credit for 26 weeks of temporary total disability benefits paid in conjunction with this course work.
In Church’s Fried Chicken v. Maloney, 599 So. 2d 706 (Fla. 1st DCA 1992), a claimant who had already been paid 52 weeks of rehabilitation temporary total disability benefits but was still enrolled in an approved rehabilitation program could receive wage loss benefits. The court affirmed an award of wage loss benefits even though the claimant had not performed a job search. The claimant’s treating physician was of the opinion that the claimant could not work and attend school full-time because of a compensable heart condition. Although the court stated that the deemed earnings provision of F.S. §440.15(3)(b)2 might be applicable, it ruled that the judge did not err in refusing to apply the provision because the employer/carrier had failed to meet the burden of proof.
• Procedural v. Substantive Changes
In Fairchild Aircraft v. Raybon, So. 2d 801(Fla. 1st DCA 1994), the employer/carrier contends that the JCC erred in entering an order adjudicating the claimant PTD without first determining whether there is a reasonable probability that the claimant could be rehabilitated through training and education to the point of achieving suitable gainful employment. In so ruling, the employer/carrier contends, the JCC disregarded the mandate of F.S. §440.49(1)(c), as amended by 1989 Fla. Laws Ch. 289, effective October 1, 1989, providing that prior to entering an order adjudicating an injured employee to be permanently and totally disabled, the judge of compensation claims shall first determine whether there is a reasonable probability that, with appropriate training and education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of the individual to undertake such training or education.
The court held that since the 1979 revision of §440.49(1)(a), which placed the responsibility and cost of rehabilitation on the employer/carrier rather than the Department of Labor and Employment Security, was substantive in nature and operated only prospectively, the same analysis concludes that the 1989 amendments to §440.49, which transferred the responsibility and cost of rehabilitation from the employer/carrier to the Department of Labor and Employment Security, are substantive in nature, and apply only prospectively. Since the claimant here received his injures prior to the effective date of the 1989 amendments (October 1, 1989), the employer/carrier remains responsible for all cost and expense of attempting to rehabilitate this claimant.
In Hertz Rent-A-Car v. Sosa, 670 So. 2d 73 (Fla. 1st DCA 1996), the self-insured employer appeals from a workers’ compensation order awarding temporary total disability (TTD) benefits during period of training and education pursuant to F.S. §440.49(1)(d) (Supp. 1990). The employer argues that the judge of compensation claims erred as a matter of law in his interpretation of F.S. §440.20(12)(a) (Supp. 1990), as prohibiting settlement of TTD benefits during periods of training and education under §440.49(1)(d).
The court held that the legislature intended to include temporary total disability compensation payable pursuant to §440.49(1)(d) within the obligation for “training and education”and intended that the obligation remain the responsibility of the employer. Therefore, the JCC properly interpreted §440.20(12)(a) as indicating the legislature’s intention that lump sum settlements not be allowed in exchange for release of the employer’s liability for payment of “additional compensation for temporary total disability during such period as the employee is receiving training and education” under a program pursuant to §440.49(1)(d). Having approved the JCC’s interpretation of §440.20(12)(a), the court held that the JCC improperly rejected the employer’s argument that the claimant is estopped by the plain language of the settlement agreement he signed from claiming the additional benefits he sought under §440.49(1)(d). The claimant entered into a settlement agreement which paid him a substantial sum of money, in part for a release of any claim for compensation benefits pursuant to §440.49 and for “rehabilitation temporary total benefits.” Under the particular facts of this case, the claimant will not be permitted to claim additional compensation from the employer.
The Law Since January 1, 1994
• Statutory Provisions
When an employee who has suffered an injury compensable under Ch. 440 is unemployed 60 days after the date of injury and is receiving benefits for temporary total disability, temporary partial disability, or wage loss, and has not yet been provided medical care coordination and reemployment services voluntarily by the carrier, the carrier must determine whether the employee is likely to return to work and must report its determination to the division. The carrier must thereafter determine the reemployment status of the employee at a 90-day interval as long as the employee remains unemployed, is not receiving medical care coordination or reemployment services, and is receiving benefits.
The carrier may require the employee to receive a reemployment assessment as it considers appropriate. However, the carrier is encouraged to obtain a reemployment assessment if the carrier determines the employee is at risk of remaining unemployed or the case involves catastrophic or serious injury. The carrier shall authorize only a qualified rehabilitation provider to provide the reemployment assessment. The rehabilitation provider shall conduct its assessment and issue a report to the carrier, the employee, and the division within 30 days after the time such assessment is complete. If the rehabilitation provider recommends that the employee receive medical care coordination or reemployment services, the carrier shall advise the employee of the recommendation and determine whether the employee wishes to receive such services. The employee shall have 15 days after the date of receipt of the recommendation in which to agree to accept such services. If the employee elects to receive services, the carrier may refer the employee to a rehabilitation provider for such coordination or services within 15 days of receipt of the assessment report or notice of the employee’s selection, whichever is later.
If the rehabilitation provider concludes that training and education are necessary to return the employee to suitable gainful employment, or if the employee has not returned to suitable gainful employment within 180 days after referral for reemployment services or receives $2,500 in reemployment services, whichever comes first, the carrier must discontinue reemployment services and refer the employee to the division for a vocational evaluation. Upon referral of an injured employee by the carrier, or upon the request of an injured employee, the division shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation and, if appropriate, approve training and education or other vocational services for the employee. The division may not approve formal training and education programs unless it determines, after consideration of the re-employment assessment, pertinent reemployment status reviews or reports, and such other relevant factors as prescribed by rule, that the reemployment plan is likely to result in return to suitable gainful employment. When rehabilitation is necessary and desirable, the injured employee is entitled to reasonable and proper rehabilitation services for up to 26 weeks, which period may be extended an additional period not to exceed 26 weeks. F.S. §440.491 (1994).
• Scope and Duration of Benefits Awardable
In Lockheed Space Operations v. Langworthy, 686 So. 2d 665 (Fla. 1st DCA 1996), the court determined that the reemployment assessment provision is procedural and has application to injuries occurring prior to January 1, 1994. This is a new tool for determining the status of the claimant and assisting in the goal of returning injured workers to full employment. The court pointed out that the new section contains no provision permitting the claimant to request an assessment. The new statute imposes no duties or obligations on the employer/carrier, but has total autonomy in making the decision whether to seek a reemployment assessment. The provision does not impose any further obligations on either the claimant or the employer/carrier by virtue of having participated in or performed this assessment.
In Barnett Bank of Volusia County v. Pelle, 684 So. 2d 311 (Fla. 1st DCA 1997), the court held that §440.15(1)(e), allowing for an employer/carrier to conduct vocational evaluation even after the employee had been accepted or adjudicated as permanently and totally disabled, had retroactive application prior to its effective date of January 1, 1994. The court again pointed out that this section provides an investigatory tool for determining the status of the claimant and assisting in the goal of returning the claimant to employment that does not impose a new obligation or requirement on the employer/carrier and does not create a new right to which the claimant is entitled. Even though §440.15(l)(e)3 allows the employer/carrier to withhold payment of benefits if a claimant fails to appear for a scheduled evaluation, this provision is still procedural and has retroactive application.
In Ring Power Corp. v. Campbell, 697 So. 2d 203 (Fla. 1st DCA 1997), the court indicates that under prior law, the division merely proposed training and education which the judge of compensation claims could approve (or not). F.S. §440.49(1)(a) (1993). Since January 1, 1994, however, the division itself is authorized to “approve training and education or other vocational services for the employee.” F.S. §440.491(6)(a) (Supp.1994). Despite the division’s approval of a program of training and education for Mr. Campbell, appellants argued that the statute does not require them to pay temporary total disability benefits during “the initial 26 week period for training and education.” But F.S. §440.491(6)(b) (Supp. 1994) plainly requires such payments. Compensation payments designed to facilitate rehabilitative training and education during an initial period as long as 26 weeks have been required by predecessor provisions at least since 1979. Only if additional payments beyond those required during the initial period of up to 26 weeks of training and education approved by the Division of Workers’ Compensation are sought by the injured employee and opposed by the employer, does either have any right to a decision by the judge of compensation claims concerning “additional temporary total compensation while the employee receives training and education.” F.S. §440.491(6)(b) (Supp. 1994). The division’s approval of Mr. Campbell’s request for training, which made him eligible for temporary total compensation benefits during up to 26 weeks of training, was agency action as to which appellants failed to seek a §120.57 hearing or any redress under the Administrative Procedure Act below.
In Workman v. Joe Brown Aluminum, 816 So. 2d 1182 (Fla. 1st DCA 2002), pursuant to the claimant’s request for reemployment services, the Division of Workers’ Compensation approved the claimant for training and education in computer-aided drafting and design. The claimant entered into a written agreement with the division for a two-year training program. The claimant began taking three courses on August 23, 1999. However, on October 8, 1999, he withdrew from two of the three courses but did not provide any medical reasons for his withdrawal. Subsequently, the division, by letter dated January 18, 2000, found that the claimant had abandoned the approved program as of October 8, 1999. The division terminated its sponsorship of the claimant in the training program because he failed to comply with the agreement and maintain full-time status. After a hearing, the JCC found that the claimant was not entitled to any rehabilitative TTD benefits.
F.S. §440.491(6)(b) provides that when it appears that an employee who has attained maximum medical improvement requires training and education to obtain suitable gainful employment, the employer shall pay the employee additional temporary total compensation while the employee receives such training and education for a period not to exceed 26 weeks, which period may be extended for an additional 26 weeks or less, if such extended period is determined to be necessary and proper by a judge of compensation claims. This court has previously stated that this section mandates that the employer/carrier make compensation payments, not to exceed 26 weeks, while the employee receives training and education.2 The division has also interpreted this statute to direct the employer/carrier to make mandatory compensation payments during the initial period of up to 26 weeks’ training and education.3 The court has further held that once the division approves a training and education program for the claimant, the JCC lacks discretion to deny the claimant any temporary total compensation benefits during this 26-week period.4 The division’s approval of a training and education program for a claimant is agency action for which an employer/carrier must seek administrative review through the Administrative Procedure Act.
In Eckert v. Publix Supermarkets, Inc., 783 So. 2d 1187 (Fla. 1st DCA 2001), the employer/carrier filed a motion to compel a vocational evaluation and/or reemployment assessment. In response, the claimant argued that under §440.491(6)(a) the employer/carrier was not permitted to mandate a vocational evaluation. The JCC granted the employer/carrier’s motion and ordered the claimant to appear for a “vocational evaluation” pursuant to §440.15(1)(e)1, adding that failure to appear would result in his PTD benefits being withheld. Claimant appealed.
The court concludes that §440.15(1)(e)1 was written to ensure that §440.491 applied to PTD claimants as well as claimants suffering temporary total disability, temporary partial disability, or wage loss.5 Thus, §440.491 controls the manner of conducting reemployment assessments and vocational evaluations, and that statute clearly gives only the division the authority to schedule a vocational evaluation.6 Under subsection (6)(a) to §440.491, while the carrier has the right to make a referral for vocational screening, the carrier does not have the right to schedule a claimant to undergo vocational evaluation. Under this subsection, it is only the division that is authorized to conduct a training and education screening to determine whether an employee should be referred for a vocational evaluation. Specifically, the employer/carrier must establish that the claimant had been referred to the division for a vocational evaluation, that the division had recommended a vocational evaluation, and that Eckert failed or refused to appear for that evaluation. As the employer/carrier had not satisfied these preconditions in the case on appeal, the JCC erred in entering an order compelling claimant to undergo a vocational evaluation.
In Bober v. Bush Air Conditioning, 826 So. 2d 487 (Fla. 1st DCA 2002), the JCC entered a final order finding that the statutory maximum entitlement to 104 weeks of temporary indemnity benefits included 11 weeks of rehabilitative temporary total benefits which claimant received after he reached MMI, pursuant to §440.491. Claimant appealed, claiming that the temporary rehabilitative benefits he received pursuant to §440.491 should not be included within the 104 weeks of temporary disability benefits, as limited in §440.15.
In Okeechobee Health Care v. Collins, 726 So. 2d 775 (Fla. 1st DCA 1998), and City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), this court held that an award of any combination of temporary total disability benefits and temporary partial benefits is limited to a maximum of 104 weeks. As authority for this proposition, these cases rely on §440.15(2)(a) and (4), which expressly limit the number of weeks a claimant may be awarded temporary benefits before reaching MMI. Here, however, claimant received temporary rehabilitative benefits after reaching MMI, as specifically contemplated by §440.491.7
1 See also C & H. Construction v. Leyman , 453 So. 2d 1163 (Fla. 1st D.C.A. 1984).
2 Ring Power Corp v. Campbell , 697 So. 2d 203, 205 (Fla. 1st D.C.A. 1997).
3 See Fla. Admin. Code R . 38F-55.006(2).
4 Ring Power , 697 So. 2d at 205-06.
5 See Fla. Stat. §440.491(3)(a).
6 Fla. Stat. §440.491(6)(a) (1999).
7 See Ring Power , 697 So. 2d 203 (holding that once the Division of Workers’ Compensation authorized rehabilitative training, concomitant temporary total benefits up to 26 weeks were mandatory, even though the claimant had reached MMI).
Rafael Gonzalez , a graduate of Florida State University College of Law, is a partner in the firm of Barrs, Williamson, Stolberg, Townsend & Gonzalez, P.A., Tampa, where he practices workers’ compensation and Social Security disability. He is past chair of The Florida Bar Workers’ Compensation Section, The Academy of Florida Trial Lawyers Workers’ Compensation Section, and the Hillsborough County Bar Association Workers’ Compensation Section.
This column is submitted on behalf of the Workers’ Compensation Section, Martin Leibowitz, chair, and Pamela L. Foels, editor.