A couple of recent cases in Florida demonstrate how the courts interpret and shape statutes that are otherwise vague and ambiguous.
At issue is Florida Statutes Section 440.20 which states:
"An advance payment of compensation not in excess of $2,000 may be ordered by any judge of compensation claims after giving the interested parties an opportunity for a hearing thereon pursuant to not less than 10 days' notice by mail, unless such notice is waived, and after giving due consideration to the interests of the person entitled thereto. When the parties have stipulated to an advance payment of compensation not in excess of $2,000, such advance may be approved by an order of a judge of compensation claims, with or without hearing, or informally by letter by any such judge of compensation claims, or by the department, if such advance is found to be for the best interests of the person entitled thereto."
Florida's 1st District Court of Appeals (1st DCA), in Lopez v. Allied Aerofoam, No. 1D10-1444, 10/18/10, interpreted that section to require payment of a requested advance of up to $2,000 to any employee in the state, from whomever they request it, as long the person seeking the advance has either not returned to the same or similar employment following an alleged injury or has suffered a substantial loss of earning capacity.
Since then 440.20 has generated a bit of controversy because judges in the state considered the 1st DCA's opinion in Lopez to instruct them that the judge must only consider the "interests" of an entitled applicant and under the law the claimant only need show he would be "better off" with the money.
In the last two weeks though the 1st DCA has taken a couple of cases to put some boundaries on a 440.20 request.
In Worthy v. Jimmie Crowder Excavating, No. 1D12-1747, Worthy worked briefly as a truck driver for Jimmie Crowder Excavating on a hurricane debris clean-up project. He alleged that he slipped while climbing into the cab of his truck and jarred his back last July, and filed a disputed claim for compensation. Worthy also requested an advance of $2,000, pursuant to Florida Statutes Section 440.20(12)(c)2.
At the hearing on Worthy's request for an advance, it was undisputed that he had not worked since last July. He testified that he was behind on "a lot of bills," including his car payments, and had been paying the minimum he could on his rent.
Judge of Compensation Claims John J. Lazzara then asked Worthy's attorney why $2,000 was requested, and noted that Section 440.20(12)(c) does not say that an advance must be made in that amount.
Worthy's attorney responded that the burden should not be on a claimant to prove how much he is entitled to, but on the defense to prove that something less than $2,000 was more appropriate.
Lazzara disagreed and denied Worthy's request for an advance because Worthy failed to present any evidence regarding what amount not exceeding $2,000 would be in his best interest.
Worthy appealed, but the 1st DCA said Lazzara was right.
The 1st DCA reasoned that Worthy "made the required showing that he had not returned to the same or equivalent employment," but all this meant was that a judge could award him an advance payment of compensation, after considering his best interests. However, absent any evidence from Worthy as to why a $2,000 advance was appropriate, the court said Lazzara "was unable to adequately consider claimant's interests, as required under the statute," so the judge did not err in denying Worthy's request.
In Tuesday's decision, entitled ESIS v. Kuhn, No. 1D12-1726, the 1st DCA said a claimant also bears the burden of showing how that need is tied to the effects of a workplace injury.
Kuhn injured her right shoulder while working as a flight attendant for Delta Airlines in October 2006 when she picked up and replaced an accordion-type door in the cabin that had been broken by a passenger.
Her employer accepted her injury as compensable and provided benefits, but Kuhn was able to continue working even after her accident without any reduction in pay.
Kuhn reached maximum medical improvement with a 5% permanent impairment rating in April 2007.
Over four years later, Kuhn filed a new petition for benefits, the sole purpose of which was to obtain payment of a $2,000 advance under the authority of Section 440.20. She filed no independent petition for medical benefits and no other petition for benefits was pending at that time.
Kuhn asserted she met the statutory criteria for an advance because she has a permanent impairment and the advance was in her interest. She acknowledged that she was current on all her financial obligations and had no imminent need for the money, but the $2,000 "would be great…just to have extra money in my account for any unexpected things that come up."
Relying on the aforementioned Lopez case, Judge of Compensation Claims Thomas W. Sculco ordered the requested advance based solely on his finding that such a payment was in Kuhn's best interests.
On appeal the 1st DCA reasoned that Section 440.20's use of the phrase "due consideration" granted broad discretion to judges of compensation claims to award advances of up to $2,000, "provided a legitimate 'interest' of the claimant is demonstrated."
The court said that the provision of a financial cushion to a claimant is not, by itself, a justifiable basis for the award of an advance under Section 440.20 because "(w)e are dealing…with a statutory framework in Chapter 440 whose principal purpose is to address medical and related financial needs arising from workplace injuries."
Thus, the court said, the type of interest furthered by an advance under Section 440.20 "must at least have some plausible nexus to this purpose." Since Kuhn made no showing tying her desire to safeguard her finances to a medical or financial need arising from her workers' compensation claim, the court said, she was not entitled to the advance she sought.
Many in the Florida workers' compensation industry noted that before the Lopez case requests for a 440.20 advance were minimal, but that afterwards such requests became routine. Not only did these requests result in cost increases, but they left a bad taste with many.
The 1st DCA's opinions on 440.20 these past couple of weeks demonstrate how judicial opinions shape the law, how unintended consequences arise, and how a court can return to the subject matter of those unintended consequences and, with the right case, interpose boundaries and rules to keep honest people honest.
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