coMpEtEnt, suBstantial EvidEncE
Workers’ Compensation Section
Chair:AnthonyCortese-AnthonyV.Cortese,AttorneyatLaw
to establish entitlement,
there must be more
than just uncontradicted
testimony from
I
the claimant.
n a recent case, the First
District avoided a statutory
interpretation issue regarding
what constitutes a compensable
injury that prevents an “employee
from working sufficient quarters
to be eligible” for social security
benefits. The Court instead ruled
that a party’s uncontroverted
testimony that they would not be
eligible for social security, without
more, is insufficient evidence to
overcome the age cutoff.
In SBCR, Inc. v. Doss, 1 when
Doss reached the age of 62, his
employer/carrier terminated his
supplemental permanent total
disability benefits, citing Section
44.15(1)(f ): “Supplemental
payments shall not be paid or
payable after the employee attains
age 62, regardless of whether the
employee has applied for or is
eligible to apply for Social Security
benefits under 42 U.S.C. s. 402
or s. 423, unless the employee is
not eligible for Social Security
benefits … because the employee’s
compensable injury has prevented
the employee from working
sufficient quarters to be eligible
for such benefits.” 2
Doss testified that while he was
eligible for Social Security retirement,
he was not eligible for Social
Security disability because he had
not worked enough quarters to
meet the eligibility requirement of
working at least 20 quarters in the
ten years. He testified that if not
for the compensable injury, he
would have continued to work for
his employer and earned enough
quarters to be eligible. His
employer/carrier appealed the
Judge of Compensation Claims’
finding in Doss’ favor.
The First District reversed,
holding that there was not
competent substantial evidence to
support the finding. It noted that
there was no documentation that a
claim for Social Security Disability
would be denied, and no details to
support the assertion that he did
not qualify for disability or that he
would have continued to work for
his employer if he had not been
injured. It also noted that before
working for this employer, Doss
worked in jobs with no Social
Security coverage, and his
employment for this employer was
sporadic. The court held that it was
speculative to find that he would
have worked sufficient quarters if
the compensable injury had not
prevented him from working.
This decision is interesting,
because there is no evidence cited
opposing Doss’s assertions. His
employer could have testified that it
would not have continued to employ
him for the additional quarters, but
it apparently did not. The carrier
also could have hired a Social
Security expert or attorney to testify
against his assertions, but there
is no mention of such evidence.
Doss had a substantial pecuniary
interest in obtaining Social Security
Disability benefits, both because
the income would likely be as
much or more than the amount
of permanent total disability
supplements and because it would
trigger early Medicare eligibility.
Despite this, the Appellate Court
held that his testimony was
inadequate. The First District made
clear that to establish entitlement to
continued disability supplements
under this section, there must be
more than just uncontradicted
testimony from the claimant. n
275 So.3d 1290 (Fla. 1st DCA
2019).
2 § 440.15(1)(f), Fla. Stat. (2008).
1
Author: Anthony V. Cortese – Attorney
at Law
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