Elder v. West Boca Medical Center

904 So. 2d 637, 2005 Fla. App. LEXIS 9737, 2005 WL 1467333

• Court: District Court of Appeal of Florida
• Decided: June 23, 2005
• Docket: No. 1D04-0764
• Status: Published

Opinion

PER CURIAM.

Noretta Elder (appellant) appeals a final order entered by the judge of compensation claims denying her petition for permanent total disability (PTD) benefits, penalties, interest, costs and fees. We affirm without discussion, except to address appellant’s argument that under Home Depot v. Turner, 820 So.2d 1075 (Fla. 1st DCA 2002), an employer/carrier (E/C) seeking to establish proof of a substantial earning capacity in defense to a claim for PTD benefits must specifically plead this as an affirmative defense, or forever waive it.

We do not read Home Depot to create such a pleading requirement; Home Depot addresses only the burden of proof in permanent total disability claims. See § 440.15(1)(b), Fla. Stat. (2001) (“Only a catastrophic injury as defined in s. 440.02 shall, in the absence of conclusive proof of a substantial earning capacity, constitute permanent total disability.... In no other case may permanent total disability be awarded.”); Home Depot, 820 So.2d at 1075-76 (holding the E/C bears the burden, not the claimant, “to demonstrate, by the conclusive proof required statutorily, that claimant maintained a substantial earning capacity despite her impairment”).

AFFIRMED.

BARFIELD, BROWNING and HAWKES, JJ. concur.