Florida/Georgia Personal Injury & Workers Compensation

...The employer here concedes that "merger" can occur between a compensable injury and a pre-existing disability, but argues that "merger" can occur only if there is a showing of loss of wage earning capacity. The term "mergers" appears only in the disability fund statute, § 440.49....

...Stat., F.S.A.; and the claimant may, in the natural and normal course of events, acquire a wage-earning capacity, see Dennis v. Brown, Fla. 1957, 93 So.2d 584, or he may acquire a wage-earning capacity through the vocational rehabilitation procedures not only authorized but required by the statute, § 440.49, Fla....

...ent, or wage loss connotes a legislative intention to differentiate between each of these concepts as a basis for awarding benefits. Perhaps most illustrative of the conceptual differences between the terms "permanent impairment" and "disability" is section 440.49(2), relating to the limitation of liability of the Special Disability Trust Fund for subsequent injury. Subsection 440.49(2)(a) expresses the legislative intent: [T]o encourage the employment of the physically handicapped by protecting employers from excess liability for compensation and medical expense when an injury to a handicapped worker merges with his preexisting permanent physical impairment [7] to cause a greater disability, permanent impairment, or wage loss than would have resulted from the injury alone. (Emphasis added.) The term "merger" is defined in subsection 440.49(2)(b)2 b to mean: The permanent disability, permanent impairment, or wage loss resulting from the subsequent accident or occupational disease is materially and substantially greater than that which would have resulted had the permanent physical impairment not existed and the employer has been required to pay, and has paid, permanent total disability, permanent impairment, or wage-loss benefits for that materially and substantially greater disability. Subsection 440.49(2)(b)3 similarly provides: "Excess permanent compensation" means that compensation for permanent impairment, wage-loss benefits, or permanent total disability or death benefits for which the employer or carrier is *634 otherwise entitled to reimbursement from the Special Disability Trust Fund. (Emphasis added.) Finally, subsection 440.49(2)(c) explains in detail, in separate paragraphs, the impact of the limitations in this section on "permanent impairment," "wage loss," and "permanent total disability." Subsection 440.49(2)(c)1 provides that in the event an employee with a preexisting permanent physical impairment suffers a subsequent "permanent impairment" which merges with the preexisting condition so as to cause a "permanent impairment," the employer may be reimbursed for sixty percent of the benefits paid under subsection 440.15(3)(a), the section that provides for specified permanent impairment benefits. [8] Subsection 440.49(2)(c)2 makes similar provision for reimbursement of "wage loss benefits" paid pursuant to subsection 440.15(3)(b). [9] Subsection 440.49(2)(c)3 makes provision for reimbursement to the employer of "permanent total disability" benefits in excess of the first one hundred seventy-five weeks of permanent total disability compensation where a merger between a preexisting permanent physical impairment and permanent total disability occurs....

...nly acceleration of death reasonably attributable to the accident shall be compensable." [5] This term is not to be confused with the concept of "permanent physical impairment," defined for purposes of the Special Disability Trust Fund provisions in section 440.49(2)(b)1 (both before and after 1979) to mean "any permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging...

...idered together, result in a permanent impairment rating which is greater than the sum of the two permanent impairment ratings when each impairment is considered individually. [7] The definition of this term is set forth in footnote 5, supra. [8] Subsection 440.49(2)(c)1 states: If an employee who has a preexisting permanent physical impairment incurs a subsequent permanent impairment from injury or occupational disease arising out of, and in the course of, his employment which merges with the p...

...m the Special Disability Trust Fund created by paragraph (h) for 60 percent of all impairment benefits which the employer has been required to provide pursuant to s. 440.15(3)(a) as a result of the subsequent accident or occupational disease. [9] Subsection 440.49(2)(c)2 states: If an employee who has a preexisting permanent physical impairment incurs a subsequent permanent impairment from injury or occupational disease arising out of, and in the course of, his employment which merges with the p...

...440.15(3)(b) during the first 5 years after the date of maximum medical improvement and for 75 percent of all compensation for wage loss which the employer has been required to provide after the 5-year period following the date of maximum medical improvement. [10] Subsection 440.49(2)(c)3 states: If any employee who has a preexisting permanent physical impairment incurs a subsequent permanent impairment from injury or occupational disease arising out of, and in the course of, his employment which merges with the...

...We conclude that the present case is controlled by the same considerations as those involved in Walt Disney World v. Morgan, supra, and that the modifications necessitated by the loss of claimant's left hand are "other apparatus" as that term is used in § 440.13(1). See § 440.49(1), Florida Statutes, for additional provisions governing claims for specific rehabilitation benefits; cf....

...We conclude that the deputy commissioner's treatment of the expense allowance comports with the statutory definition of "wages" found in Section 440.02(12), Florida Statutes (1979). Turning next to the rehabilitation issue, we observe initially that the E/C admit their responsibility under Section 440.49, Florida Statutes (1979), to provide rehabilitation, and to provide it quickly....

...We decline to adopt the E/C's views regarding rehabilitation, with exception of their acknowledgement of their obligation to provide it, because these views, as above outlined, are fundamentally at odds with the concept of "rehabilitation" as we think it is envisioned by Florida's workers' compensation law. The statute (Section 440.49(1)(a)), requires the E/C to provide rehabilitation in the form of "appropriate training and education," and it speaks further of "vocational education," and "vocational rehabilitation" of injured employees. Subsection (c) of Section 440.49(1) makes further reference to "appropriate training or education," and subsection (d) provides for "proper rehabilitation services" to be extended over a period of twenty-six to fifty-two weeks....

...Finding a job for an injured worker, however helpful and beneficial, cannot be equated with "training and education." Furthermore, finding a suitable job presupposses the existence, upon the claimant's part, of the ability to obtain and perform employment providing an income "equal to" his pre-injury earnings. Section 440.49(1)(a)....

...Carpenter to these facts, and because he made no findings as to claimant's entitlement to benefits if the defense were not to apply, we reverse and remand with directions to the JCC to determine all remaining issues ripe for consideration. REVERSED and REMANDED. JOANOS and WOLF, JJ., concur. NOTES [1] "Merger," under Section 440.49(2)(b)(2), Florida Statutes (1989), means that the subsequent accident would not have occurred but for the existence of the previous PI, or that the PI resulting from the second accident is materially and substantially greater than that...

...Appellants appeal a final order of the deputy commissioner which granted the request of appellee, Raymond Grady (claimant), *276 for rehabilitation benefits. Appellants (hereinafter alternatively "E/C") contend that the services provided by claimant's rehabilitation provider were not "rehabilitation" as defined by section 440.49, Florida Statutes (1985), and that the record below contained insufficient evidence of claimant's need for such benefits....

...provider, Statewide Rehabilitation, Inc., who under the deputy's order would be supervising claimant's IWRP. Appellants first assert on appeal that the services provided by Statewide Rehabilitation, Inc., are not "rehabilitation" as contemplated by section 440.49(1)(a), which requires rehabilitation benefits to provide "appropriate training and education for suitable gainful employment." Appellants *277 maintain that the testing and evaluation procedures undertaken on claimant's behalf by State...

...ment" within the meaning of the above-noted statute. In this regard, appellants assert the sole right to determine which rehabilitation provider they would fund. We find no merit in this contention. For one thing, contrary to appellants' assertions, section 440.49(1)(b)3 c., Florida Statutes (1983), specifically describes "vocational rehabilitation services" to include "vocational ......

...pon them duties with respect to the administration of justice beyond that required of the ordinary citizen. A more concrete basis for distinction is found, however, in the statute itself, which requires the employer or carrier, "at its own expense" (section 440.49, Florida Statutes) to provide rehabilitation....

...Petersburg, for appellant/cross-appellee. Robert P. Byelick, St. Petersburg, for appellees/cross-appellants. JOANOS, Judge. This workers' compensation appeal concerns the procedural and evidentiary requirements *1202 of a claim for rehabilitation benefits under the 1979 amendments to § 440.49(1), Florida Statutes. [1] After a hearing on the claim, the deputy denied rehabilitation benefits on the ground that the program in which the claimant was currently enrolled was not that envisioned by § 440.49(1)....

...e DVR counselor and a Division rehabilitation nurse. Although the rehabilitation nurse testified that she "would not disagree with" the DVR's choice of rehabilitation programs, the deputy found that the ward clerk program was "not that envisioned in section 440.49... ." In order to have reached this conclusion, the deputy could have determined that the requirements of § 440.49(1) were not met in that, (1) the injury did not preclude claimant from earning pre-accident wages, (2) the ward clerk program was not "necessary and appropriate to restore the employee to suitable gainful employment," or (3) the program should be rejected due to procedural deficiencies....

...To refuse rehabilitation benefits because of the availability of any employment, *1204 no matter how ill-suited to the particular individual, would be counter to the statutorily expressed goal of rehabilitation — to return the individual to " suitable gainful employment." § 440.49(1)(a) (emphasis supplied)....

...The suitability of the employment is determined by considering the claimant's injury, age, education, and prior occupation. In light of the claimant's prior experience and education, the telephone solicitation job had nothing to recommend it. With regard to the procedural difficulties, in subsection (1)(a) of § 440.49, the statute sets forth the correct procedure under which an injured employee may obtain rehabilitation....

...tional education or rehabilitation. The ultimate responsibility, however, remains with the Division, which must oversee the effectiveness of each rehabilitation program. Unfortunately, the parties did not precisely follow the procedures set forth in § 440.49(1)(a) and the Division, in essence, abdicated its statutory responsibility to a fellow state agency, the Department of Vocational Rehabilitation....

...ning capacity. This evidence is sufficient to meet the statutory criteria without the necessity of a permanent impairment rating. REVERSED and REMANDED for further proceedings consistent with this opinion. ERVIN and WENTWORTH, JJ., concur. NOTES [1] Section 440.49(1)(a) provides: (1) Rehabilitation of injured employees....

...turning to heavy duty work. If the judge concluded that this indicated lack of good faith, we would remind him that the record reflects that claimant's former employer did not provide other employment to him, nor did it offer him any rehabilitation. Section 440.49(1)(a), Florida Statutes (1987), places the duty upon the employer/carrier to provide prompt rehabilitation services to *964 an employee when "it appears that the injury will preclude the employee from earning wages equal to wages earne...

...nt by the Fund to the employer/carrier (E/C) for vocational rehabilitation benefits paid by the E/C to the worker. [1] The Fund contends that vocational rehabilitation benefits are not among those benefits reimbursement of which may be ordered under Section 440.49(2), Florida Statutes (1979). We agree and reverse. Subject to certain statutory limitations not pertinent to this case, Section 440.49(2), Florida Statutes (1979), provides for a right of the employer to be reimbursed by the Special Disability Trust Fund for certain statutorily specified compensation benefits which the employer has paid in situations where the worker's injury has merged with a preexisting permanent physical impairment causing a greater disability, permanent impairment, or wage loss than would have resulted from the injury alone. The various classes of reimbursable benefits are enumerated in Section 440.49(2) and include permanent impairment, wage loss, permanent total disability, funeral expenses and death benefits....

...Such medical rehabilitation benefits are patently distinguishable from vocational rehabilitation which was not involved in Haga. See also Firestone Tire & Rubber Co. v. Vaughn, 381 So.2d 740 (Fla. 1st DCA 1980). As relied upon by the deputy in his order, the E/C also points to the fact that Section 440.49(1) was amended in 1979, Chapter 79-40, Section 37, Laws of Florida, so as to require the employer or carrier, at its own expense, to provide vocational training benefits when it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury....

...Instead, the Division of Workers Compensation was required to assist permanently disabled workers in obtaining training, education and employment and was authorized to expend monies for such purposes from the Workmen's Compensation Administration Trust Fund established by Section 440.50. See Section 440.49(1), Florida Statutes (1978 Supp.). However, simply because the legislature amended Section 440.49(1) to require the employer/carrier to provide such benefits does not mean that the reimbursement provisions of Section 440.49(2)(e) should be construed to provide for reimbursement to the employer/carrier for payment of vocational benefits where the language of the latter section was not amended but continued to read "remedial treatment, care, and attendance pursuant to s....

...440.13." The fact that certain kinds of benefits are statutorily required to be paid by the employer/carrier does not mean that the legislature necessarily intended that all such benefits should be reimbursed from the Special Disability Trust Fund. In fact, Section 440.49(2)(a), Florida Statutes (1979), suggests otherwise....

...State, 335 So.2d 815 (Fla. 1976); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944), Rebich v. Burdine's, supra . The E/C also urges that the deputy's order, which was entered on March 29, 1983, is sustainable under an amendment of Section 440.49(2) enacted by the 1983 Legislature. Indeed, Chapter 83-305, Laws of Florida, did amend Section 440.49(2) so as to specifically include "costs for rehabilitation" among those compensation benefits for which the employer/carrier will be entitled to reimbursement from the Fund....

...Halligan, 344 So.2d 239 (Fla. 1977); Recon Paving, Inc. v. Cook, 439 So.2d 1019 (Fla. 1st DCA 1983); Rothermel v. Florida Parole and Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1983). Nothing in Chapter 83-305 suggests any legislative intent that the amendment of Section 440.49(2) should operate in any other fashion than prospectively....

...Due to the nature of employment prior to the industrial accident and the nature of her injuries following the industrial accident, I find that it would have been fruitless for her to merely "test her employability" and therefore, find that she is 75% permanently and partially disabled. A merger occurs under § 440.49(2)(b) when the employee has a permanent physical impairment due to a previous accident or disease or congenital condition and subsequently suffers an accident arising out of and in the course of his employment from which he suffers permanen...

...-earning capacity). While we have found no opinion up to this point specifically dealing with loss of wage-earning capacity merger and using that terminology, it is obvious from the workers' compensation law that the legislature has provided for it. Section 440.49(4)(b)2 b, Florida Statutes (1977), provides: *999 "Merger" describes or means that: * * * * * * b....

...1987. Although there was no medical opinion at that time that claimant was able to perform light work uninterruptedly, claimant's own surgeon, who fixed the MMI date, believed that claimant was a candidate for rehabilitation. Considering that under Section 440.49(1)(c), Florida Statutes, a deputy is required to determine whether there is a reasonable probability that a claimant can be rehabilitated before adjudicating him permanently totally disabled, the E/C did have a reasonable basis for continuing to pay temporary benefits within the meaning of Belam Florida Corp....

...Construction Company, 358 So.2d 171 (Fla. 1978), although a primary purpose of the provision is to allow additional benefits during the period of adjustment via training in the use of artificial members or appliances and training or education under a rehabilitative program pursuant to Section 440.49, if provided....

...disability of 80 percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to subsections 440.49(1)(2), or (3), if provided.

...worker's compensation claimant. Specifically, is a request, either by the employee, employer, or the carrier, to the Division of Worker's Compensation, [1] for a referral for evaluation of the claimant's need, etc., for rehabilitation as provided by Section 440.49(1)(a), Florida Statutes (1979), a necessary condition precedent to the award of rehabilitation benefits by the deputy commissioner under the new (1979) Workers' Compensation Act? [2] The deputy commissioner answered this question in the negative, and awarded rehabilitation....

...pensation for referral "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." Section 440.49(1)(a), Florida Statutes (1979)....

...1st DCA 1982), opinion filed March 15, 1982, affirming denial of rehabilitation benefits where the employee had not applied to the division for evaluation. Our determination of the jurisdictional issue calls for examination of the specific language of the 1979 rehabilitation statute, as well as its predecessor. Former Section 440.49, repealed effective July 1, 1979, [6] contained a provision limiting the authority of the deputy commissioner to award rehabilitation benefits. The repealed provision (Section 440.49(1), Florida Statutes (1978 Supp.)) provided in part: However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the Division has been given reasonable time to eva...

...e claimant. Hall v. Red Bishop Roofing, 393 So.2d 618 (Fla. 1st DCA 1981); Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla. 1976). No such limitation upon the jurisdiction or authority of the deputy commissioner appears in the 1979 version of Section 440.49, which provides that rehabilitation must be provided by the employer or carrier, at its own expense....

...evaluation, the deputy commissioner "may" order the service or treatment recommended in the report, or, the deputy may order "such other rehabilitation treatment or service deemed necessary," to be provided at the expense of the employer or carrier. Section 440.49(1)(a). The new act's increased emphasis upon rehabilitation, and liberalization of the prerequisites for eligibility on the part of the claimant is evident. [7] The former statute, Section 440.49 (1978 Supp.), provided for rehabilitation in cases "in which it appears that disability probably will be permanent ...." The 1979 amendment eliminates the requirement of "permanent" disability, and provides for eligibility when "it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury... ." Section 440.49(1)(a), Florida Statutes (1979)....

...[10] A "do nothing" approach on the part of the employer and carrier is no longer a viable alternative. AFFIRMED. MILLS and SHAW, JJ., concur. NOTES [1] Florida Department of Labor and Employment Security. [2] Chapters 79-40, 79-312, Laws of Florida (1979). The 1979 revision of Section 440.49, subsections (1)-(7), inclusive, for the first time in Florida elevated rehabilitation services to the category of benefits to which the eligible injured worker "shall be entitled." It also mandated the provision of such services by th...

...uch services are not voluntarily offered or accepted, and imposed a mandatory reduction of benefits payable to the employee upon refusal to accept rehabilitation "as deemed necessary by the deputy commissioner." By contrast, the repealed revision of Section 440.49 merely authorized rehabilitative assistance by the Division, did not require the employer or carrier to provide rehabilitation, and made the reduction in benefits a matter within the discretion of the judge of industrial claims....

...Moreover, we agree that the evidence supported the finding that after it received Dr. Lowell's report and the functional capacity evaluation, the E/C was reasonably pursuing efforts to determine whether claimant could be rehabilitated to suitable gainful employment, in accordance with the dictates of Section 440.49(1)(c), Florida Statutes (1989)....

...aimant. The E/C correctly argue that they are not responsible to assume the cost of claimant's rehabilitation, and that the deputy erroneously relied on W.R. Grace & Co. v. Marshall, 405 So.2d 444 (Fla. 1st DCA 1981), in applying the 1979 version of section 440.49(1), Florida Statutes, in holding the E/C responsible for that cost. Claimant's compensable injury occurred on June 20, 1975. Consequently, the 1974 version of chapter 440 would apply where substantive rights are at stake. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla. 1960). Section 440.49(1), Florida Statutes (Supp....

...1974), provides that the rehabilitation of the injured employee is the responsibility of the Division of Labor, which is authorized "to expend moneys from the special fund established by s. 440.50 ..." in order to carry out its responsibility. [2] However, section 440.49(1), as amended by chapter 79-40, Laws of Florida (1979), states that the employer or carrier, "at its own expense," (emphasis added) shall rehabilitate the injured employee. [3] In 1981, this Court issued an opinion in the case of W.R. Grace & Co. v. Marshall , holding that section 440.49(1)(c), enacted in 1979 as chapter 79-40, § 37, Laws of Florida, is "plainly procedural" and therefore "applicable to Marshall's case notwithstanding that the subject injury occurred in 1977." 405 So.2d at 445. [4] Relying on W.R. Grace, the deputy concluded that section 440.49(1)(a), enacted by the same chapter, was also procedural, and applicable to claimant's case. We disagree. First, W.R. Grace & Co. v. Marshall involves only subsection (1)(c) of section 440.49. It cannot be held as authority for concluding that the whole of section 440.49, Florida Statutes (1979), is procedural. Accordingly, the deputy's reliance on W.R. Grace was misplaced. *321 Second, and most significant, that part of the 1979 revision of section 440.49(1)(a), regarding on whom the responsibility to assume the cost of rehabilitation falls, clearly increases the potential liability of the E/C. For that reason, we hold that it is substantive in nature, and prospective only. Sullivan v. Mayo . Consequently, section 440.49(1), Florida Statutes (Supp....

...AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. MILLS and SHIVERS, JJ., concur. NOTES [1] Claimant suffered her compensable injury on June 20, 1975, and was pronounced as having reached MMI on December 23, 1980. [2] 440.49 Rehabilitation of injured employees; Special Disability Trust Fund....

...The division may, and it is authorized to, expend moneys from the special fund established by s. 440.50, for the purpose of assisting such injured employees to obtain appropriate training, education and employment in connection with their vocational rehabilitation. [3] Section 440.49(1)(a), Florida Statutes (1979), provides in pertinent part: When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services....

...gainful employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees... . [4] 440.49(1)(c), Florida Statutes (1979), provides: Prior to adjudicating an injured employee to be permanently and totally disabled, the deputy commissioner shall determine whether there is a reasonable probability that, with appropriate training or ed...

...t. We therefore decide that the result of our decision in the Sharer case, as it interpreted the effect of Sec. 440.15(5) (c) and Sec. 440.15(5) (d) (2) and (5) is still a valid and correct interpretation of the effect of Sec. 440.15(5) (c) and Sec. 440.49(4) as they now exist....

...In the Sharer case we recognized that our ruling was contrary to the intent expressed by the 1959 Legislature in ch. 59-13, Laws of 1959, which became Sec. 440.15(5) (d) (5). We also recognize that our holding in this case is contrary to the intent of the 1963 Legislature as expressed in Sec. 440.49(4) (a) and as evidenced by the rearrangement of the sub-sections relating to the Special Disability Fund and the deletion from Sec....

...anent disability paid in excess of that allowed for such injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment." [Emphasis added.] In 1963 this section was moved becoming Sec. 440.49(4) (c)....

...Although the wording was slightly changed, the material portions, including the emphasized provisions, remain the same. The statement of legislative intent, which prior to the 1963 amendment appeared as Sec. 440.15(5) (d) (5), was changed only by being moved becoming Sec. 440.49(4) (a)....

...Despite the removal of the words of exception from Sec. 440.15(5) (c), and the rearrangement of the other subsections, we still have the same situation that we had in the Sharer case. The basic problem arises out of an apparent conflict between existing Sec. 440.49(4) (c) which authorizes reimbursement to employers for compensation that Sec. 440.15(5) (c) provides they will never pay to injured employees. The only way this conflict can be reconciled without rendering Sec. 440.49(4) inoperative is to hold as we did in the Sharer case....

...language. Sec. 440.15 (5) (c) provides that the successively injured employee shall not receive compensation "in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability." Sec. 440.49(4) (c) authorizes reimbursement to the employer for all compensation paid "in excess of that allowed for such injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment." Wha...

...In other words, the two sections can only be applied as perfect alternatives. On the basis of the foregoing and under our statutory plan, our special disability fund provisions cannot accomplish the purpose of encouraging the hiring of handicapped workers, the legislative intent expressed in Sec. 440.49(4) (a)....

...dge that its practical effect is as petitioner asserts. We decided two things in the decision toward which these petitions for rehearing are directed: (1) that the apportionment provision of Sec. 440.15(5) (c) and the reimbursement provision of Sec. 440.49(4) (c) are perfect equivalents and can only be applied as alternatives; and (2) that the apportionment provision of Sec....

...y that they will inevitably arise later in this cause. As previously indicated, the Fund's first and principal contention is that our decision denies effect to those provisions of the statute that require the proceedings for reimbursement under Sec. 440.49 to be separate from the adjudication of the claim for compensation, that facts found in the latter proceeding are not res judicata in the proceeding for reimbursement, that the Fund shall be a party to the latter proceeding, and so forth....

...ury and, that, therefore, no apportionment is required. This language meets the test of Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla. 1962), which we held in our original opinion is still a valid and correct interpretation of the law, and of § 440.49(4) (c)....

...The petition of the commission which argues that responsibilities have been placed upon the fund without giving it a day in court should be denied for the simple reason that the fund, not being a party to this cause at this point, has not suffered any determination binding upon it. Section 440.49(4) (g) makes this clear....

...ion program when they had already paid 52 weeks of rehabilitation benefits. We can find no error on this point because the order unambiguously indicates that the award of wage loss benefits is not an additional award of rehabilitation benefits under section 440.49, Florida Statutes (1985), payable before claimant is adjudged to have reached MMI, but is an award of wage loss benefits under section 440.15(3)(b), payable after claimant has reached MMI....

...th Florida (USF) to complete his degree in accounting. This rehabilitation program was approved by the previous compensation order as "appropriate under the circumstances," and claimant was awarded the maximum rehabilitation benefits allowable under section 440.49 while enrolled in program....

...eason to treat pre-existing disability resulting from injury any differently from pre-existing disability resulting from disease or other congenital defect... . [T]he apportionment provision of Section 440.15(5)(c) and the reimbursement provision of Section 440.49(4)(c) are perfect equivalents and can only be applied as alternatives....

...In September 1988, a hearing was held on Marvin's claim that, based on Winter Garden Citrus v. Parrish, 438 So.2d 472 (Fla. 1st DCA 1983), his supplemental benefits should have commenced on March 13, 1986, the date on which he reached MMI from the second accident. Citing Section 440.49(2)(c), Florida Statutes (1985), providing that a JCC cannot find an employee PTD without first finding that he cannot be rehabilitated, the JCC approved the employer/carrier's action in waiting until rehabilitation efforts had failed before commencing supplemental benefits....

...There is another impressive and cogent reason for concluding that Section 440.15(5) (c) was not intended to apportion temporary disability and medical benefits. In Stephens v. Winn-Dixie Stores, Inc., supra, we held that the apportionment provision of Section 440.15(5) (c) and the reimbursement provision of Section 440.49(4) (c) are perfect equivalents and can only be applied as alternatives....

...ty Fund for reimbursement of the amount apportioned to represent the prior disability of impairment of a permanent nature only arises in situations where the employer took the "employee as he found him," i.e., with knowledge of his prior disability. Section 440.49(4) (b)....

...REVERSED and REMANDED with directions that the JCC enter an order requiring the E/C to allow claimant to attempt the offered employment. In doing so, we do not prejudice any entitlement claimant might have to wage loss and rehabilitation benefits. BOOTH and WOLF, JJ., concur. NOTES [1] Section 440.49(1)(a), Fla....

...Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith, Lakeland, for appellee. ZEHMER, Judge. The employer and carrier appeal a workers' compensation order granting vocational rehabilitation benefits to claimant. The only significant issue raised on appeal is whether section 440.49(1)(a), Florida Statutes (1985), permits a claimant to receive vocational rehabilitation benefits when his employer has provided him with employment earning wages substantially close to his pre-injury wages which the deputy commissioner determined to be unsuitable employment....

...the plain language of the statute, precludes claimant from receiving rehabilitation benefits regardless of whether he continues in that job. We decline to approve this interpretation of the statute for the following reasons. The pertinent portion of section 440.49(1)(a) provides: When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services....

...New Fern Restorium, 409 So.2d 1201, we stated that [t]o refuse rehabilitation benefits because of the availability of any employment, no matter how ill-suited to the particular individual, would be counter to the statutorily expressed goal of rehabilitation *363 — to return the individual to `suitable gainful employment.' § 440.49(1)(a) (emphasis supplied)....

...As the deputy commissioner correctly recognized, should this employment be later terminated, claimant would be left in the position of having to seek employment as a guard in a market that pays substantially less than claimant's average weekly wage at the time of injury. Such a result is not consistent with the purpose of section 440.49. We hold, therefore, that section 440.49(1)(a) requires employers and carriers to provide rehabilitation benefits when it appears that a claimant's compensable injury precludes him from earning wages insuitable employment equal to his pre-injury wages, and that when the emplo...

...Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants. Ernest M. Jones, Jr., of Jacobs, Valentine, Groseclose & Miller, P.A., Lakeland, for appellee. ROBERT P. SMITH, Jr., Chief Judge. The employer and carrier contest the deputy commissioner's interpretation and application of section 440.49(1)(c), Florida Statutes (1979), by an order that both found Marshall permanently and totally disabled, due to loss of wage earning capacity, and that Marshall should be evaluated for vocational rehabilitation....

...The deputy thus ordered payment of chapter 440 benefits for permanent total disability from the date of maximum medical improvement, some 13 months before the compensation order, and ordered Marshall referred to the Division of Labor for vocational rehabilitation evaluation. *445 Section 440.49(1)(c), enacted in 1979 as chapter 79-40, § 37, Fla....

...bly result from such injury," as provided in Chapter 17481, Section 2(5), Laws of Florida (1935), is identical to the definition of injury found in the current statute. See § 440.02(14), Fla. Stat. (1991). [16] § 440.02(1), Fla. Stat. (1987). [17] § 440.49(2), Fla....

...likelihood, is unable to earn an equal wage in other employment without further training. Although not presented as an issue, we note that neither the employer nor its servicing agent has provided claimant any rehabilitation services as required by Section 440.49(1)(a), Florida Statutes....

...NG WHERE CLAIMANT SUFFERS A DISABILITY DUE TO OCCUPATIONAL DISEASE WHICH PERMANENTLY IMPAIRS CLAIMANT'S ABILITY TO WORK, RESULTING IN ECONOMIC LOSS, BUT DOES NOT AFFECT "THE ACTIVITIES OF DAILY LIVING?" WIGGINTON and BARFIELD, JJ., Concur. NOTES [1] Section 440.49(1)(a), Florida Statutes, provides, in pertinent part, as follows: (1) REHABILITATION OF INJURED EMPLOYEES....

...The Special Disability Trust Fund (Fund) appeals from an order of the deputy commissioner determining that the employer/carrier's claim for reimbursement was timely filed because the "date of payment" of permanent impairment benefits, for purposes of Section 440.49(2)(g), Florida Statutes (1981), is the date the claimant negotiates the check....

...The claimant received and negotiated this check on June 6, 1983. On August 5, 1983, the employer/carrier filed a claim for reimbursement from the Fund. The Fund maintains that the employer or carrier is not entitled to reimbursement because the claim for reimbursement was not timely filed. Section 440.49(2)(g), Florida Statutes (1981), provides in pertinent part that: (g) Reimbursement of employer....

...* * * (emphasis added) The payment of permanent impairment benefits represents excess compensation since the employer or carrier was entitled to any claims reimbursement for sixty percent (60%) of the benefits which were attributable to diabetic complications resulting in amputation. Section 440.49(2)(b)3., Florida Statutes (1981) defines excess permanent compensation as "compensation for impairment ... for which the employer or carrier is otherwise entitled to reimbursement ..." Under Section 440.49(2)(g), Florida Statutes (1981), the right to reimbursement is barred unless the claim is filed prior to 60 days after the date of the first payment of excess compensation....

...namely, June 3, 1983, that this date was not within the 60 days preceding the filing of the August 5 claim, and thus the employer or carrier are not entitled to reimbursement. We agree with the Fund and hold that the date of payment, for purposes of Section 440.49(2)(g), is the date the check is mailed by the employer or carrier. While no case has specifically addressed the issue of what constitutes payment within the context of Section 440.49(2)(g), several cases have addressed the question of what constitutes payment in other contexts of workers' compensation law and are consistent with our holding....

...It was held that proof of a carrier's mailing of disability checks to a claimant constitutes proof of payment sufficient to start the running of the limitation period. See also Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973). Our decision that the date of payment for purposes of Section 440.49(2)(g) is the date the check is mailed also comports with logic and reason....

...led actions of the third party. The claimant could wait as long as two years to negotiate the check. Such a result would tend to frustrate the statute's obvious intent to effect a 60-day limitation period. The employer and carrier argue that because Section 440.49(2)(g) is a remedial statute, the time limitation imposed by that statute should not be strictly construed. However, Section 440.49(2)(g) is a non-claim statute and clearly bars any right to reimbursement unless the claim is filed prior to 60 days from the date of the first payment....

...here was no evidence of any physical restrictions relating to her industrial injury which prevented her from returning to her prior employment. This *498 court explained in Cenvill Communities, Inc. v. Brown, 409 So.2d 1147 (Fla. 1st DCA 1982), that Section 440.49(1)(e), Florida Statutes (1987), provides that temporary disability benefits shall be paid for the period during which an employee is receiving rehabilitation training under subsection (1)(a)....

...Wheeler, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for appellants. Mary E. Ingley, Tallahassee, for appellee. MILLS, Judge. The issue in this workers' compensation appeal is whether proceedings to contest denial of reimbursement requests made pursuant to section 440.49(2)(g), Florida Statutes (1985), must be commenced within the four-year limitations period of section 95.11(3)(f), Florida Statutes (1985)....

...The e/c contend the deputy erred in applying section 95.11(3)(f) to bar the proceeding to contest the Fund's denial of the 1985 reimbursement request. They assert that the only time limitation pertaining to reimbursement from the Fund is the limitation in section 440.49(2), Florida Statutes, barring an e/c from seeking reimbursement from the Fund unless the notice of claim for reimbursement is filed "prior to 60 days after the order awarding the excess permanent compensation with respect to which such...

...ount, the e/c argue, there is no time limitation on subsequent requests for reimbursement of specific amounts. We note initially that it is important to distinguish between a "notice of claim" and a "reimbursement request" as those terms are used in section 440.49(2)(g)....

...The filing of a notice of claim is intended to result in a determination by the Fund that the e/c are or are not entitled to reimbursement in some amount. The notice of claim must be filed within one of the 60-day periods specifically provided for in section 440.49(2)(g)....

...are entitled, generally, to reimbursement. These requests are the second step in the reimbursement process, and their purpose is to trigger reimbursement for specific amounts of compensation and medical benefits paid the injured employee by the e/c. Section 440.49(2)(g) places no time limitation on the filing of reimbursement requests....

...or carrier for which the employer or carrier is entitled to reimbursement, upon filing request therefor and submitting evidence of such payment in accordance with rules prescribed by the division." [1] (Emphasis supplied). Although we recognize that section 440.49(2)(g) does not limit the time for filing reimbursement requests, and we have found no other applicable limitations period in Chapter 440, we nevertheless decline to accept the e/c's assertion that reimbursement requests are not subject to any statute of limitations. In those cases where the Fund has an obligation to reimburse an e/c, that obligation is strictly a creature of section 440.49, Florida Statutes....

...n they are made after general entitlement to reimbursement has been established. The Fund would be forced to maintain its files and investigate the merits of reimbursement requests indefinitely. Second, the e/c's accrual theory ignores the fact that section 440.49(2)(g) requires the Fund to reimburse an e/c every six months upon the filing by the e/c of a reimbursement request....

...mbursement, they have, theoretically at least, suffered damage. The Fund suggest, and we agree, that a cause of action based on denial of a reimbursement request accrues at the end of each six-month interval of periodic reimbursement provided for in section 440.49(2)(g), Florida Statutes, as to benefits paid by the e/c in that six-month interval....

...sement requests and, if necessary, contest their denial. We therefore modify the order appealed to state that any proceeding to contest denial of a reimbursement request, based on benefits paid by the e/c during any six-month intervals designated in section 440.49(2)(g), that ended more than four years prior to the date the e/c requested the proceeding, is barred by section 95.11(3)(f), Florida Statutes....

...We affirm in part, reverse in part, and remand. Claimant initially injured his back in a compensable accident on January 10, 1980. He received various benefits to which he was entitled as an injured employee, including rehabilitation services pursuant to section 440.49(1)(a), Florida Statutes....

...ilitation. We reverse the admission into evidence, over objection, of the unauthenticated medical reports and hospital records, and the award of wage-loss benefits and rehabilitation. We affirm the change of physician. As to rehabilitative benefits, § 440.49(1), Florida Statutes (1979), provides that: 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 ca...

...Section 449.49(1) expressly requires "an opportunity to be heard" on this issue, and the award of rehabilitative services in the proceeding below was contrary to the statutory requirement. Claimant may reapply for such benefits by complying with the provisions of § 440.49(1)....

...prerequisite to recovery of rehabilitation benefits. Such procedure is established by statute to provide a resolution for dispute when rehabilitation services are not voluntarily offered by the employer or accepted by the employee. The provisions of Section 440.49, Florida Statutes (1981) are not indispensable, but are certainly the preferred procedure as they lend order and direction to a timely resolution of the issue of rehabilitation services and should normally be followed....

...we review herein, on petition for writ of certiorari, an order of the Industrial Relations Commission which reversed a recovery of excess compensation benefits from the Special Disability Trust Fund ordered by a Judge of Industrial Claims pursuant to Florida Statutes, Section 440.49(4), F.S.A....

...Yes." An employer's own personal definitions do not control the application of the Florida Workmen's Compensation Law. Also, it is not knowledge of a disability which is required for a reimbursement of excess compensation benefits, but knowledge of a "permanent physical impairment". Fla. Stat. § 440.49(4)(b), F.S.A., defines "permanent physical impairment" as: "......

...or efficiency; it simply has to be a pre-existing disease or condition which is permanent, which is known to the employer, and which would reasonably magnify the extent or result of a subsequent injury. For an employer to recover from the Fund under Section 440.49, we stated that, "It is not necessary that it be shown that the employer considered the disease or condition as a hindrance or obstacle, yet nevertheless hired the employee......

...for reimbursement from the Special Disability Trust Fund (Fund). They argue that the judge of compensation claims (JCC) erred in ruling that because the employer had failed to file a proof of claim within one year after July 1, 1997, as required by section 440.49(7)(c), Florida Statutes (1997), the claim for reimbursement was statutorily barred. We affirm. The pertinent statute in effect at the time of the employee's injury in 1996 was section 440.49(7), Florida Statutes (Supp....

...whichever is later." On March 6, 1996, shortly after the occurrence of the employee's injury, the employer sent the following letter to the Fund: This is to inform you of our intent to file a claim against the Special Disability Trust Fund, in regard to the above captioned case in accordance with 440.49(2)....

...Additional evidence supporting our claim will be forthcoming at the proper time. Thank you for acknowledging our claim. The Fund thereafter responded to the employer's letter, saying: This is to acknowledge receipt of your Notice of Claim.... Please prepare and file your Proof of Claim. In 1997, the legislature amended section 440.49(7) by adding paragraph (c), among other provisions, to state in part: (c) A proof of claim must be filed on each notice of claim on file as of June 30, 1997, within 1 year after July 1, 1997, or the right to reimbursement of the claim shall be barred....

...tly and totally disabled and began paying indemnity benefits as of that date. The employer filed its proof of claim on February 3, 1999, but the Fund rejected it as untimely, because it was filed more than one year after July 1, 1997, as required by section 440.49(7)(c)....

...the letter not to constitute a valid notice, it would have attempted to file such notice before filing its proof of claim, but did not. *583 The employer next argues that if the notice is considered valid, the one-year limitation period provided in section 440.49(7)(c) for filing a proof of claim could not constitutionally have retroactive application to an accident that occurred before the effective date of the amendment, because it established a shorter limitation period than that which had earlier existed....

...Once its notice of claim matured on January 29, 1998, it could have timely filed its proof of claim by July 1, 1998, or it could have withdrawn its notice before July 1, 1998, and thereafter refiled it within the two-year limitation period provided in 440.49(7)(a), by January 29, 2000....

...dealer, and that such work would be suitable for appellant's physical limitations. Appellant requested the e/c to approve the retraining program. The e/c did not reply to the request. On June 12, 1985 appellant filed a claim for rehabilitation under section 440.49, Florida Statutes, formally requesting the e/c to provide him with training through the dealer's school in Las Vegas....

...See McCandless v. M.M. Parrish Construction, 449 So.2d 830, 833 (Fla. 1st DCA 1984). Further, the E/C argues that the D/C improperly awarded PTD benefits without first making a finding that Tidwell could not be rehabilitated, contrary to the *961 requirements of Section 440.49(1)(c), Florida Statutes (1979)....

...ived of their right to hire or not hire him with knowledge of the correct facts, and were deprived of their statutory opportunity to obtain reimbursement of their `excess' from the Special Disability Fund because they did not have knowledge as per F.S. 440.49(4)(b), and claimant's injury was magnified due to his undisclosed pre-existing condition." "......

...correction before the compensation order became final. This court cannot make that assumption on appeal. The issue of TPD was ripe and should have been decided by the deputy. The deputy did not err by denying rehabilitation services to the claimant. Section 440.49, Fla....

...Instead of looking for work or alerting the employer or the Division of Workers' Compensation that he wanted or needed vocational training, Simpson, on the advice of his attorney, sought vocational rehabilitation outside the procedures contemplated by Section 440.49(1), Florida Statutes (1981)....

...f bills incurred by Simpson and a demand that the employer pay the same. This is not a case in which it can be said, as in Walker v. New Fern Restorium, 409 So.2d 1201, 1204 (Fla. 1st DCA 1982), that the claimant was in "substantial compliance" with Section 440.49(1)....

...The deputy commissioner further found that the program undertaken and approved by the Office of Vocational Rehabilitation, Florida Department of Health and Rehabilitative Services "... was eminently correct, proper and reasonable under the circumstances." The deputy commissioner concluded that under the 1979 amendment to Section 440.49(1)(a), Florida Statutes, the claimant was not obligated to request permission from the employer before undertaking a program of rehabilitation....

...However, the statute is mandatory with regard to the provision of rehabilitation, requiring that "[t]he employer or carrier, at its own expense, shall provide such injured employee with appropriate training and education for suitable gainful employment... ." Section 440.49(1)(a), Florida Statutes (1979), (e.s.)....

...Light duty is assigned to injured employees for their recovery period, after which they return to regular duty. It was not disputed in this case that once Simpson reached maximum medical improvement there would be no position available for him with the City Fire Department. [2] Section 440.49(1)(a), Florida Statutes (1981) provides: 440.49 Rehabilitation of injured employees; Special Disability Trust Fund....

...The Special Disability Trust Fund (the "Fund") appeals from the judge of compensation claim's order granting the employer/self insured's claim for reimbursement from the Fund. We reverse because the claim was barred by reason of the employer's failure to timely file the requisite notice of claim under Section 440.49(2)(g), Florida Statutes....

...permanent impairment than her impairment from the latter accident when considered alone. The judge further found that the employer had paid excess compensation in the form of wage loss benefits first paid in June 1985. Prior to the 1987 amendment of Section 440.49(2)(g), that Section provided that the employer/carrier's right to reimbursement from the Fund was barred unless written notice of the claim therefor was filed "prior to 60 days after the order awarding the excess permanent compensation ......

...We have jurisdiction pursuant to Fla. Const., art. V, § 3(b)(3), F.S.A. The sole issue before the Judge of Industrial Claims, the Industrial Relations Commission, and this Court is the proper method for applying the Special Disability Trust Fund pursuant to Fla. Stat. § 440.49(4), F.S.A....

...Winn-Dixie Stores, Inc., supra , is no longer controlling since the apportionment statute (Fla. Stat. § 440,15(5)(c), F.S.A.) has been substantially altered since the rendition of the Stephens ' opinion. With the inconsistency which required the result in Stephens corrected by statute, Fla. Stat. § 440.49(4), F.S.A., can now be applied as a simple reading of its terms dictates....

...The latter is the amount properly borne by the employer, and the difference between the former and the latter is the amount for which the employer can properly seek reimbursement from the Fund, if that amount exceeds the minimum requirement of $1,500. Fla. Stat. § 440.49(4)(f), F.S.A. Thus, for purposes of implementing Fla. Stat. § 440.49, F.S.A., the Judge of Industrial *33 Claims must make findings of fact as to the dollar amount of compensation and medical benefits actually paid by the employer, and as to the amount of compensation and medical benefits which would have be...

...There is no evidence to the contrary other than the claimant's general opinion that she was unable to work. Furthermore, it appears that the award of temporary total disability benefits may have been made to penalize the employer/carrier for failure to voluntarily provide rehabilitation services. Section 440.49, Florida Statutes (1979), requires that an application for such services be made to the Division of Workers' Compensation for an evaluation before an award of such services can be sought from the deputy....

...Murphy of Stanley, Wines, Bennett, Murphy & Spanjers, P.A., Auburndale, for appellee. ROBERT P. SMITH, Jr., Chief Judge. In this workers' compensation appeal the employer and servicing agent contend that claimant is not entitled to vocational rehabilitation benefits under section 440.49(1)(a), Florida Statutes (1980), for the reason, among others, that he has not been assigned a permanent impairment rating under the AMA Guidelines. We disagree, for nothing in section 440.49(1)(a) makes such a rating a condition precedent to an award of rehabilitation benefits....

...While claimant has as yet no impairment rating under the AMA Guidelines, the record supporting the deputy's order shows that claimant "has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior *1299 to the injury." Sec. 440.49(1)(a)....

...NOTES [1] The parties do not analyze the issues in terms of merger principles, and we leave such issues, if applicable, for consideration by the deputy on remand. The statute, however, classifies a claimant's mental retardation as a pre-existing condition for merger purposes under certain circumstances. § 440.49(2)(f)1.v, Florida Statutes (1981)....

...essary for the deputy to reach this issue to resolve the points noticed for hearing. Where rehabilitation is involved, the date of maximum medical improvement is artifically established by statute after the rehabilitation program has been completed. Section 440.49(1)(e), Florida Statutes (1979) provides that "the date of maximum medical improvement, for purposes of [determining appropriate wage-loss benefits], shall be no earlier than the last day for which such temporary disability benefits are...

...He was assigned to one counselor and referred to another who sought approval of a program by the carrier but was refused. Finally, a written program was approved by the carrier and implemented. We cannot agree with the carrier's position that the benefits should not be paid during this process. Section 440.49(1)(e) provides that: temporary disability benefits paid pursuant to § 440.15(2)(a) and (4) shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such pe...

.../servicing agent) below, appeal a final order of the Judge of Compensation Claims (JCC) determining that the claim of the employer/servicing agent for reimbursement from the Special Disability Trust Fund (Fund), appellee, was time-barred pursuant to section 440.49(7), Florida Statutes (Supp....

...1994), because the notice of the reimbursement claim was not filed within two years of the first payment of impairment benefits by the employer/servicing agent. We hold that under the language of the statute, the payment of permanent impairment benefits does not commence the running of the non-claim statute, section 440.49(7), Florida Statutes (Supp.1994), and, thus, we reverse. Section 440.49(7), Florida Statutes (Supp.1994) provides in pertinent part: (7) REIMBURSEMENT OF EMPLOYER —The right to reimbursement as provided in this section is barred unless written notice of claim of the right to such reimbursement is filed by...

...Because the notice was filed more than two years after January 2, 1996, the date of the first payment of impairment income benefits, the Fund defended the claim on the ground that it was time-barred. The JCC agreed and denied the claim. *878 The employer/servicing agent argue that the unambiguous language of section 440.49(7) does not mention the payment of impairment benefits as an event triggering the non-claim statute. Accordingly, the JCC's order conflicts with the express words of the statute. The Fund argues that, notwithstanding that the language of section 440.49(7) does not expressly provide that the payment of permanent impairment benefits trigger the non-claim provisions, the employer/servicing agent accepted an initial MMI date by its payment of permanent impairment benefits, and, as a result, started the two-year time period running for purposes of notice to the Fund....

...We agree with appellants that this is a case of first impression and that the language of Low Cost Transmission, which dealt with a different situation and workers' compensation statute, is not controlling. We hold that, because the plain, unambiguous language of section 440.49(7) does not mention the payment of impairment income benefits as a starting point for the two-year non-claim statute, the JCC erred in denying reimbursement. Non-claim statutes, such as section 440.49(7), are strictly construed, see, e.g., Special Disability Trust Fund v....

...Further, even though it is considered a permanent indemnity benefit, impairment income is payable irrespective of disability, and can be differentiated from permanent total disability benefits, wage loss or death benefits. The omission of impairment benefits from section 440.49(7) evidences a legislative intent to exclude the payment of such benefits from the reach of the nonclaim provisions. Accordingly, the employer/servicing agent's notice filed "within two years after the date of the first payment of compensation for permanent total disability," section 440.49(7), was timely....

...o evidence of any personal purpose for arriving early, a summary judgment finding her to be within the course and scope of her employment was proper. [6] The order of the trial court is therefore, AFFIRMED. SHIVERS and JOANOS, JJ., concur. NOTES [1] Section 440.49(1), Florida Statutes (1981), provides workers' compensation coverage "in respect of disability or death of an employee if the disability or death results from an injury arising out of and in the course of employment." Section 440.11(1)...

...Salzman, of Hampp & Schneikart, P.A., St. Petersburg, for appellees. WIGGINTON, Judge. Appellant, Special Disability Trust Fund (Fund), appeals the judge of compensation claims' order finding employer/carrier entitled to reimbursement from the Fund in accordance with Section 440.49, Florida Statutes....

...On September 30, 1986, Coulombe and employer/carrier entered into a washout settlement in regard to his 1982 claim, in which they stipulated to a November 1, 1982 maximum medical improvement date. Employer/carrier filed its initial claim against the Fund on February 24, 1986, and filed a renewed claim on September 29, 1986. Section 440.49(2)(g) (1981) provides that an employer/carrier's right to reimbursement from the Fund is barred unless written notice of the claim therefor was filed prior to 60 days after the order awarding the excess permanent compensation ......

...Southern Bell Telephone and Telegraph Co., 551 So.2d 575 (Fla. 1st DCA 1989), citing Special Disability Trust Fund v. Brevard County Board of Public Instruction, 9 FCR 164 (1975), cert. denied, 320 So.2d 392 (Fla. 1975): The clear intent, and effect [of the 60-day limitation in the pre-1987 Section 440.49(2)(g), Florida Statutes] is that the claim is barred ......

...The claim was made pursuant to Section 440.15(2)(b), Florida States (1975), which in relevant part provides that "Temporary total disability ... shall include such period as the employee may be receiving training or education under a rehabilitation program pursuant to subsections 440.49(1), (2) or (3), not to exceed 40 weeks." The Commission dismissed the claim, reversing an order of the judge of industrial claims which had granted rehabilitation benefits, on the ground that the judge lacked jurisdiction to award benefits without the participation of the Department of Commerce's division of labor....

...scribed rehabilitation program. A prerequisite to the receipt of temporary total disability benefits during the rehabilitation program under this scheme is the requirement that the training or education program be one which meets the requirements of Section 440.49(1)....

...ehabilitation. The fund referred to is the Workmen's Compensation Administration Trust Fund, [2] which was established in part to provide for the payment of all expenses *557 relating to the vocational rehabilitation of injured employees provided in Section 440.49. In 1975 the Florida Legislature added four sentences to subsection 440.49(1)....

...may propose if said rehabilitation program is to be funded out of the fund established by § 440.50. The division shall be a party to all hearings involving any claims made against the fund established by § 440.50." As we read the language added to Section 440.49(1) by the 1975 Legislature, it accomplishes several things. First, it creates rule-making authority and requires that the division's rules must be followed in granting training and education benefits. Second, it requires that all hearings under subsection 440.49(1) be conducted pursuant to Section 440.25, Florida Statutes (1975), which in general sets the procedure with respect to all claims for compensation....

...Since he lacked jurisdiction, the Commission was correct in concluding that the claim must be dismissed rather than remanded. Petition for Writ of Certiorari is granted and the Commission's order is affirmed. OVERTON, C.J., and SUNDBERG, HATCHETT and KARL, JJ., concur. NOTES [1] The provisions of Sections 440.49(2) and (3) have no relevance to this proceeding. [2] This trust fund is to be distinguished from the Special Disability Trust Fund which is created under § 440.49(4)(h)(1), Fla....

...tremity accepted by the employer. The employer/carrier filed their notice of claim for reimbursement against the Fund on August 10, 1979. The Fund controverted the claim contending, among other things, that it was not timely filed in accordance with Section 440.49(4)(g), Florida Statutes (1975). [1] The Fund argues that the claim was not filed within 60 days after the first payment of excess compensation for permanent disability was made as is required by Section 440.49(4)(g)....

...t the issue of permanent partial disability was not ultimately decided until his order of June 29, 1979, and that the claim for reimbursement was filed well within sixty days from that date. We must respectfully disagree with the deputy's reasoning. Section 440.49(4)(g) is a statute of nonclaim and clearly bars any right to reimbursement unless the claim is filed prior to 60 days from the date of the first payment of excess compensation if such payment is made by the employer/carrier without an award. The purpose of the time limitation in Section 440.49(4)(g) is to protect the Fund against stale claims and to provide an opportunity for prompt investigation of the claim....

...ys before August 10, 1979, the date the employer/carrier's claim was filed, we find the claim to be untimely and reverse the deputy's order requiring the Fund to reimburse the employer/carrier. MILLS, ERVIN and LARRY G. SMITH, JJ., concur. NOTES [1] Section 440.49(4)(g), Florida Statutes (1975), provides in pertinent part: (g) Reimbursement of Employer....

...e the first payment of excess compensation for the permanent disability was made ... . (emphasis supplied) We are applying the 1975 statute which became effective October 1, 1974 rather than the 1973 statute in effect at the time of the injury since Section 440.49(4)(g) is a remedial statute....

...invoked for currently accruing liability arising out of earlier events or claims. Myers v. Carr Construction Company, 387 So.2d 417, 418 (Fla. 1st DCA 1980), and cases cited therein. [2] Of course, a finding of a "merger," as defined in the statute, Section 440.49, subsection (4)(b), paragraphs 2a and b, is essential to reimbursement by the employer/carrier....

...As an insurance carrier authorized to transact a workers’ compensation line of business in Florida, Amerisure is subject to certain assessments: Amerisure is required to pay quarterly assessments to the Special Disability Trust Fund (SDTF) pursuant to section 440.49(9), Florida Statutes (2008), which provides in part: (9) SPECIAL DISABILITY TRUST FUND.— .... (b)1....

...which provides: Casualty insurance premiums.—Notwithstanding any statutory provision to the contrary, for the purposes of calculating the annual assessments for the Special Disability Trust Fund under s. 440.49 and expenses of administration under s....

...payment obligations, full credit for all overpayments made by it to the WCATF.” The Department took the position that to allow Amerisure to obtain in addition the cash refunds Amerisure requested “would be inconsistent with the provisions” of Sections 440.49(9)(b) and 440.51(1), Florida Statutes....

...1st DCA 2004). Amerisure’s contention that a carryforward of a “credit” from a year in which it paid no assessment is necessary in order for it to be made “whole” overlooks the basic fact that the governing statutes levy an assessment on carriers—not on policyholders. See §§ 440.49(9)(b)1., Fla....

...Rhett Smith of Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for Appellee. BARFIELD, Judge. The self-insured employer appeals from a workers' compensation order awarding temporary total disability (TTD) benefits during a period of training and education pursuant to section 440.49(1)(d), Florida Statutes (Supp.1990)....

...The employer argues that the Judge of Compensation Claims (JCC) erred as a matter of law in his interpretation of section 440.20(12)(a), Florida Statutes (Supp. 1990), as prohibiting settlement of TTD benefits during periods of training and education under section 440.49(1)(d), that his factual findings are not supported by competent substantial evidence, that he erred in failing to rule that the claimant was estopped from attacking the parties' settlement agreement, and that he departed from the essen...

...JCC, which was purportedly "made for the specific purpose of discharging the Employer/Carrier (Servicing Agent) for (sic) any further liability for future compensation but not for medical treatment and for rehabilitation benefits as defined under F.S. 440.49(1)(a)(1989) (sic) in exchange for the payment of a lump-sum of money to the Employee." The stipulation stated the employer ... will pay to the Employee $25,000.00 in full satisfaction of the obligation or liability to pay monetary compensation benefits on account of disability, death and impairment as set forth under Sections 440.15, 440.16 and 440.49 Florida Statutes, on account of the work related accident or occupational disease referenced herein....

...It stated that the employer would still be required to provide any future remedial or palliative medical care under section 440.13, and that the claimant would retain the right to apply to the Division of Workers' Compensation "for appropriate retraining and education under F.S. 440.49(1)(a)(1989) (sic)." Until 1989, when chapter 440 was extensively amended, section 440.49(1)(a), Florida Statutes, entitled an injured employee to "prompt rehabilitation services" and required the employer or the carrier to provide "appropriate training and education for suitable gainful employment." It also provided that the employer or carrier "may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees." Section 440.49(1)(d) provided (in pertinent part): 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. Section 440.49(1)(e) provided (in pertinent part): *75 ......

...himself from the state. In no case may a lump-sum payment be allowed in exchange for the release of the employer's or carrier's liability for future medical expenses and training and education ... Section 24, chapter 89-289, Laws of Florida, amended section 440.49(1), which remained entitled "Rehabilitation of Injured Employees." Under amended subsection (a), an injured employee is entitled to "appropriate training and education" and the Division of Workers' Compensation is required to provide "...

...The subsection also provides that the Division "may cooperate with federal and state agencies for training and education and with any public or private agency cooperating with such federal and state agencies in the training and education of such injured employees." The above-quoted pre-amendment language in section 440.49(1)(e) was stricken and section 440.49(1)(d) was amended to provide: When it appears that training and education are necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to be paid by the employer additional...

...claims. Section 12, chapter 89-289, Laws of Florida, amended section 440.15(2) to add subsection (c), which provides that TTD benefits "... shall include such period as the employee may be receiving training and education under a program pursuant to s. 440.49(1)." Interpretation of the prohibition in the amended statute against lump sum payment for "training and education" requires a determination of what the legislature intended thereby, for which we must read the pertinent statutory provisions in pari materia....

...ping with the large body of jurisprudence which mandates that courts attribute meaning and purpose to the acts of the legislature. We therefore hold that the legislature intended to include temporary total disability compensation payable pursuant to section 440.49(1)(d), Florida Statutes (Supp.1990), within the obligation for "training and education" and intended that this part of the obligation remain the responsibility of the employer....

...ttlements 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 section 440.49(1)(d). We note that the legislative intent of amended section 440.20(12)(a) would be entirely frustrated if the employer were allowed to contract with the claimant for release of its remaining liability under section 440.49(1)(d)....

...Having approved the JCC's interpretation of section 440.20(12)(a), we hold that he 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 section 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 section 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....

...ALLEN, J., concurs. SHIVERS, Senior Judge, dissents, with written opinion. SHIVERS, Senior Judge, dissenting. I respectfully dissent and would affirm the November 29, 1994, order awarding TTD benefits during a period of training and education pursuant to section 440.49(1)(d), Florida Statutes (Supp.1990)....

...f Insured Services, ask us to reverse an order requiring them to pay temporary total disability benefits to Frederick Campbell, a former Ring Power employee, as a concomitant to his first twenty-six weeks in a rehabilitative training program. Citing section 440.491(6)(a), Florida Statutes (Supp.1994), the judge of compensation claims ordered the benefits, even though Mr....

...nd education which did not pay him wages. We affirm. In not revisiting a question the Legislature has now assigned to the Division of Workers' Compensation—"approv[ing] training and education or other vocational services for [an injured] employee," § 440.491(6)(a), Fla. Stat. (Supp.1994)—the judge of compensation claims recognized a jurisdictional change effected by section 440.491(6)(b), Florida Statutes (Supp.1994). Under prior law, the Division merely proposed training and education which the judge of compensation claims could approve (or not). § 440.49(1)(a), Fla. Stat. (1993). Since January 1, 1994, however, the Division itself is authorized to "approve training and education or other vocational services for the employee." § 440.491(6)(a), Fla....

...A comparison of the present statute with its predecessor dispels any illusion that the judge of compensation claims retains jurisdiction over the determination of an injured worker's eligibility for training and education or other vocational services. Until section 440.491 was enacted, § 44, ch. 93-415, at 178, Laws of Fla., the judge of compensation claims did have jurisdiction to decide whether an injured worker was entitled to training and education and for how long. § 440.49(1)(d), Fla....

...However, no judge of compensation claims shall assume jurisdiction to approve or disapprove training and education under this provision unless the division has advised all parties as to the training and education program it may propose if such program is to be funded out of the fund established by s. 440.50. § 440.49(1)(a), Fla....

...tates that the legislature intended to remove that portion of the statute from the law."). Statutory language governing the penalty a worker's compensation claimant suffers for refusing rehabilitative training and education also reflects the change. Section 440.49(1)(d), Florida Statutes (1993), provided: Refusal to accept training and education as deemed necessary by the judge of compensation claims shall result in a 50-percent reduction in weekly compensation, including wage-loss benefits ... for ... the period of refusal. (Emphasis supplied.) Under section 440.491(6)(b), Florida Statutes (Supp.1994), however, this reduction in benefits is mandated for claimants who refuse training and education "that is recommended by the vocational evaluator and considered necessary by the division." Despite the Division's approval of a program of training and education for Mr. *205 Campbell, appellants argue that the statute does not require them to pay temporary total disability benefits during "the initial 26 week period ... for training and education." But section 440.491(6)(b), Florida Statutes (Supp....

...less, if such extended period is determined to be necessary and proper by a judge of compensation claims. However, a carrier or employer is not precluded from voluntarily paying additional temporary total disability compensation beyond that period. § 440.491(6)(b), Fla....

...�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." § 440.491(6)(b), Fla....

...KAHN, J., dissents with written opinion. KAHN, Judge, dissenting. I am unable to find that the Florida Legislature intended to divest judges of compensation claims of the authority to decide entitlement to temporary total compensation when such is called for under section 440.491(6)(b), Florida Statutes (Supp.1994)....

...om appellee, the Special Disability Trust Fund, for compensation benefits paid to claimant Mark Kirkpatrick. We affirm the order, because the E/C failed to establish that claimant’s obesity was a permanent physical impairment within the meaning of section 440.49, Florida Statutes (Supp.1990). Section 440.49(2) clearly requires the employer to prove the following elements before reimbursement from the Fund may be obtained: (1) a preexisting permanent impairment, (2) knowledge by the employer of the preexisting permanent condition, (3) a su...

...ment, (4) merger of the two permanent impairments, and (5) payment of compensation. Here, the judge of compensation claims (JCC) found that the E/C failed to satisfy the first element, that is, a preexisting permanent impairment, which is defined in section 440.49(2)(b)(l) as “any permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging process.” The JCC’s determ...

...In fact, both claimant’s treating physicians testified that they knew of no medical reason for claimant’s obesity, and one doctor stated there was no reason why claimant could not lose weight. Thus, the evidence failed to establish a preexisting permanent impairment, as defined in section 440.49(2)(b). Prior to the enactment of the 1990 amendment to section 440.49(2)(f), there was no question that a claimant’s obesity, unrelated to any medical condition, was not considered a preexisting permanent impairment....

...24, 1979) (allowing reimbursement where preexisting condition was obesity, because evidence established medical cause, i.e., a psychoneurotic condition bringing on compulsive overeating), approved in part, quashed in part, 391 So.2d 212 (Fla.1980) (approving reimbursement portion of decision). In 1990, however, section 440.49(2)(f) was amended to add obesity to the list of medical conditions an employer is conclusively presumed to have considered a permanent impairment, under certain circumstances....

...In our judgment, this provision addresses only the element of employer knowledge. As we stated in Special Disability Trust Fund v. Siesta Lago Mobile Homes, 473 So.2d 8 (Fla. 1st DCA 1985), it is the employer’s burden to establish entitlement to reimbursement under section 440.49, and, pursuant to section 440.49(2)(f)(1), the employer is required to prove that it knew of the preexisting permanent physical impairment before the occurrence of the subsequent compensable injury....

...In reaching our conclusion, we acknowledge that the 1994 amended statute appears to have achieved the goal the E/C urges that the 1990 amendment accomplished. Although obesity continues to be a condition for which a presumption of knowledge by the employer arises under section 440.49(6)(a)(25), Florida Statutes (Supp.1994), the statute now defines “permanent physical impairment” as any of the conditions listed in section 440.49(6)(a). § 440.49(2)(a), Fla.Stat....

...uld be applied retroactively. Under the circumstances, we see no error in the JCC’s refusal to apply the 1994 statute to the case at bar. Because the E/C failed to prove that claimant’s obesity was a permanent physical impairment, as required by section 440.49, Florida Statues (Supp.1990), we affirm the JCC’s order denying the E/C’s claim for reimburse-mént from the Special Disability Trust Fund....

...ysically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation." § 440.15(1)(b), Fla. Stat. Deputies are prohibited by § 440.49(1)(c), *33 Fla....

...Although May, claimant's vocational rehabilitation counselor, testified that the claimant had some disability or limitations, May was not competent to testify as to claimant's medical condition and his testimony is contrary to the medical evidence that claimant had no permanent impairment. Section 440.49(1)(a), Fla....

...was the circumstance which revived the limitations period. In a case where, as in Whiteman, medical services are rendered by a clearly authorized physician for an undisputed compensable condition, they might be deemed to have been "furnished" under section 440.49(1)(b) when received by the claimant, as a minimal administrative delay in effecting payment would not impact the employer/carrier's established acknowledgment of responsibility....

...e medical bill for this treatment. The record is likewise unclear as to the extent of any delay in effecting payment. In these circumstances the judge was entitled to conclude that employer/carrier had not "furnished" such care within the meaning of section 440.49(1)(b) until payment of the medical bill, and in accordance with Proctor and Iuen the claim was thus timely filed....

...the employer's right to apportionment, the employer would nonetheless, if the increased-hazard approach were abandoned, have the right to reimbursement from the Special Disability Trust Fund upon compliance with the statutory requisites provided in section 440.49(2), Florida Statutes....

...lees. WIGGINTON, Judge. The Special Disability Trust Fund appeals from the decision of the judge of compensation claims ordering the Fund to reimburse the employer/carrier for temporary disability, medical benefits and wage-loss benefits pursuant to section 440.49(2)(g), Florida Statutes (1983). Because we agree with the Fund that the claim for reimbursement was barred by lack of notice, we reverse. Section 440.49(2)(g) provides in relevant part: The right to reimbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or carrier entitled to such reimburse...

...claimed becomes final or, if payment of such excess permanent compensation is made by the employer or carrier without an award, prior to 60 days after the date the first payment of excess compensation for the permanent disability was made. In turn, section 440.49(2)(b)3....

...filed within 60 days of the first payment of excess compensation, relying on the employer/carrier's earlier payment of wage-loss benefits. Alternatively, the Fund argued the claim was barred except for PTD benefits in excess of 175 weeks pursuant to section 440.49(2)(c)3. The JCC entered his order finding that section 440.49(2)(g) did not bar the claim for reimbursement....

...pting the 1985 date of MMI given by Dr. Zorn, the claim was timely. He reasoned that a claim for reimbursement is timely if it is filed prior to 60 days after excess permanent compensation is paid. Since "excess permanent compensation" is defined in section 440.49 as the compensation for PTD and other enumerated benefits, and since in the case of PTD, reimbursement is due for all benefits paid after the first 175 weeks of disability, the claim was timely even if the earliest possible MMI date was used....

...to notify the Fund of their right to reimbursement. The fact that a different MMI date was adopted by the judge, or that he alternatively treated this case as a PTD case from its inception did not revive the claim, as the clear intent and effect of section 440.49(2)(g) is that without timely notice, the claim is barred "and no further action by ANYONE can breath life into the right to claim reimbursement as to those benefits." Florida Power Corp....

...He therefore also erred when he deemed previously paid wage-loss benefits to be temporary total disability benefits and ordered the Fund to reimburse accordingly. As the Fund concedes, the only benefits which should be ordered reimbursed are PTD benefits in excess of the first 175 weeks beginning on April 26, 1988. See section 440.49(2)(c)3....

under a rehabilitative program pursuant to section 440.49, if provided. Amputation results in the permanent

...Stone of Beggs & Lane, Pensacola, for appellants. Mary E. Ingley, Sp. Disability Trust Fund, Tallahassee, for appellee. ZEHMER, Judge. In this workers' compensation case, we review an order denying the employer and carrier reimbursement from the Special Disability Trust Fund under section 440.49(2), Florida Statutes (1987), for excess compensation the carrier claims to have paid for temporary total disability benefits, remedial medical care, and wage loss benefits. We reverse because the order is erroneous in two respects argued by the appellants: (1) there is no requirement under section 440.49(2), read as a whole, that an employer and carrier, having otherwise qualified under the statute to receive reimbursement for excess permanent total disability compensation, actually pay permanent total disability benefits for more than...

...sability benefits under section 440.15(1) retroactive to the date of maximum medical improvement. Regarding the Fund's crossappeal, there is competent substantial evidence in the record to support the judge's finding of merger as defined subsections 440.49(2)(b)2.a (the "but for" merger) and b (the increased disability merger), and accordingly we affirm that issue....

...[1] These PTD benefits were paid until the claimant's death on February 15, 1987, due to heart failure that had no relationship to the industrial accident of January 20, 1984. The Special Disability Trust Fund denied the carrier's claim pursuant to section 440.49(2) for reimbursement of the temporary disability benefits, wage loss benefits, and remedial medical care benefits previously paid, asserting as defenses that: (1) the claimant had no preexisting permanent impairment; (2) there was no i...

...He specifically noted that "wage-loss benefits paid were reclassified as compensation for PTD" and concluded that, "based on the facts and the retroactive acceptance [of claimant's PTD status] for the purposes of this claim, no wage loss benefits were paid which would permit reimbursement under F.S. 440.49(2)(c)2." He found that PTD benefits had not been paid for 175 weeks and thus no "excess" PTD benefits had been paid by the carrier. He further found that the claimant, both before and after the industrial accident, was mentally retarded within the meaning of subsection 440.49(2)(f)1.v and that the employer made an informed conclusion prior to the claimant's injury that his preexisting mental retardation was permanent and would be a hindrance or obstacle to his employment....

...The judge found that "but for" the claimant's preexisting mental retardation condition the claimant would have followed safety instructions and used the safety cage provided by the employer and consequently would not have been injured when the tire blew off the rim, so there was a merger within the meaning of subsection 440.49(2)(b)2.a....

...injury alone." [2] The order then recites: 12. In order to qualify for entitlement to reimbursement for temporary total disability and medical benefits paid, the e/c must also qualify for reimbursement from the Fund for permanent total disability. F.S. 440.49(2)(e)....

...Southland Corp. v. SDTF, 526 So.2d 1039 (Fla. 1st DCA 1988). It has already been noted that no excess PTD benefits have been paid in this case and that in retrospect no wage-loss benefits at all were paid. Except for some rather curious language contained in F.S. 440.49(2)(c)3, the case should be resolved in favor of the Fund and against the e/c on this point alone, i.e., no excess payment — no entitlement to reimbursement. 13. F.S. 440.49(2)(c)3 requires the Fund to "......

...y to the fundamental principle that an excess must be paid before entitlement to reimbursement. 14. Needless to say the statutory requirement that the Fund "... immediately ..." reimburse excess TTD and medicals in PTD is, at best, puzzling. Under F.S. 440.49(2)(e), the first link in [the] chain of requirements needed to prove entitlement to reimbursement for TTD and remedial medicals is entitlement to reimbursement from the Fund for PTD....

...must be paid before the employer and carrier can become entitled to reimbursement for medical and temporary disability benefits in a PTD case such as this. In construing the statutory scheme, it is important to keep in mind the stated purpose of subsection 440.49(2) to encourage the employment of the physically handicapped by protecting employers from excess liability for compensation and medical expense when an injury to a handicapped worker merges with his preexisting permanent physical impai...

...cause a greater disability, permanent impairment, or wage loss than would have resulted from the injury alone. The division shall inform all employers of the existence and function of the fund and shall interpret eligibility requirements liberally. § 440.49(2)(a), Fla....

...oyer and carrier also demonstrate that a merger has occurred such that they would be entitled to reimbursement for excess PTD benefits at the end of the 175-week period. We arrive at this conclusion based on the following analysis of the statute. Subsection 440.49(2)(b)2 specifies that "`merger' describes or means" that: *486 a....

...o the combined effect of both permanent impairments. This statutory language does not refer to "excess" compensation and does not require that the employer or carrier must have paid excess permanent compensation, such as excess PTD benefits under subsection 440.49(2)(c)3 for more than 175 weeks. Subsection 440.49(2)(b)3 defines "excess permanent compensation" to mean "that compensation for permanent impairment, wage-loss benefits, or permanent total disability or death benefits for which the employer or carrier is otherwise entitled to reimbursement from the Special Disability Trust Fund." Subsection 440.49(2)(c) then sets forth the various benefits and criteria for entitlement to reimbursement by the Fund. Subsection 440.49(2)(c)1 authorizes reimbursement, subject to the limitations in 440.49(2)(f), for 60 percent of all permanent impairment benefits which the employer has been required to pay pursuant to section 440.15(3)(a), provided that the subsequent permanent impairment from the industrial accident has "merged," as statutorily defined, with the preexisting permanent physical impairment to cause permanent impairment. Under this section, the very first payment of permanent impairment benefits would necessarily include excess compensation. Subsection 440.49(2)(c)2 authorizes reimbursement, subject to the same limitations in paragraph (f), for 60 percent of all compensation for wage loss which the employer has been required to provide pursuant to s 440.15(3)(b) during the first 5 years aft...

...s subsequent permanent impairment caused by the industrial accident "merges with the preexisting permanent physical impairment to cause a wage loss." Again, the very first payment of wage loss benefits would include excess compensation as defined in section 440.49(2)(b)3. Subsection 440.49(2)(c)3 authorizes reimbursement, subject to the same limitations in paragraph (f), for "all compensation for permanent total disability which is in excess of the first 175 weeks of permanent total disability compensation, provided that...

...id by reason of the requisite merger must necessarily await the end of the 175-week period. "Entitlement to reimbursement" should not be confused with actual payment of excess permanent compensation. Each of the paragraphs numbered 1 through 3 in subsection 440.49(2)(c) requires that "the employer shall, in the first instance, pay all benefits provided by this chapter." [4] In addition, subparagraph 3 specifically provides: Upon a determination that a merger has caused permanent total disability...

...A plain reading of this language in context with the entire section demonstrates clear statutory intent to authorize reimbursement for the temporary and remedial benefits previously paid by an employer and carrier immediately upon the determination that a merger of permanent conditions as defined in subsection 440.49(2)(b)2 has occurred and caused permanent total disability, as provided in subsection 440.15(1)....

...d carrier can obtain "immediate" payment of the temporary and remedial benefits already paid once this merger and resulting permanency has been established and payment of PTD benefits (as distinguished from excess PTD compensation) has commenced. Subsection 440.49(2)(e), referred to in subsection 440.49(2)(c)3, defines the right to reimbursement for temporary disability and remedial care benefits in the following language: Subject to the limitation specified in paragraph (f), and when the preexisting permanent physical impairment has...

...or obstacle to employment." This subparagraph then sets forth a list of conditions that give rise to a conclusive presumption of the required hindrance or obstacle to employment, including "mental retardation" as found by the judge in this case. See § 440.49(2)(f)1.v....

...on paid: (1) a "merger" of the claimant's subsequent permanent impairment from the industrial accident with the claimant's preexisting permanent physical impairment in the statutorily-defined sense; (2) the conditions and limitations specified in subsection 440.49(2)(f) have been satisfied; (3) due to such merger, the employer and carrier have become entitled to reimbursement of excess permanent compensation; (4) the employer and carrier have in fact made payments of permanent impairment, perman...

...ent. The order also found, and there is competent substantial evidence to support the finding, that the subsequent permanent impairment due to the claimant's arm injury merged with his preexisting mental retardation within the meaning of subsections 440.49(2)(b)2.a and b....

...caused the need for temporary disability and remedial medical care benefits. In short, the findings made in the order and supported by competent substantial evidence are sufficient to establish the employer and carrier's right to reimbursement under section 440.49(2) for the excess temporary disability and remedial care benefits previously paid....

...This ruling was based on the invalid premise that excess PTD benefits in that sense had to be paid before the employer and carrier could qualify for reimbursement for any temporary benefits previously paid regardless of a demonstrated merger within the meaning of section *489 440.49(2)(b)2 entitling them ultimately to have reimbursement for excess PTD benefits, as well as excess wage loss benefits or excess permanent impairment benefits. This construction of the statute completely defeats the remedial purpose of this legislation. Not only does it amount to a restrictive interpretation of eligibility, contrary to the mandate in subsection 440.49(2)(a) to "interpret eligibility requirements liberally," it also would operate to cause employers to defer accepting injured employees as PTD since, as the appealed order recognizes, payment of permanent wage loss benefits pursuant to...

...d give rise to an immediate right of reimbursement for previously paid temporary benefits. Requiring an employer and carrier to wait until excess PTD benefits are actually paid, i.e., more than 175 weeks, before being entitled to reimbursement under section 440.49(2) for excess temporary and remedial benefits paid would deter, and reasonably so, all but the most saintly of employers and carriers from accepting a claimant as PTD rather than as PPD (permanent partial disability) simply because the latter classification would give rise to a right to immediate reimbursement. We do not find anything in the statutory scheme to indicate a legislative intent to accomplish the result urged by the Fund and accepted by the judge of compensation claims in this case. The philosophy underlying the reimbursement provisions in section 440.49(2) does not rest upon the notion that payment of excess PTD benefits must occur before an employer and carrier may become entitled to reimbursement for temporary and remedial benefits already paid....

...Rather, in Southland the sole issue was whether the payment of the claimant's funeral expenses constituted payment of death benefits, there being no surviving dependents of the claimant to claim the statutory death benefit, so as to trigger the employer's right of reimbursement under section 440.49(2). The court simply held, and correctly so, that payment of funeral expenses did not amount to payment of "death benefits" within the meaning of section 440.49(2)(d)....

...Whether the employer and carrier should have accepted claimant as PTD back in May 1985 when he reached MMI is a matter of conjecture, for the undisputed fact is that they did not and no claim was filed by the claimant objecting to this decision. We find nothing in chapter 440, and more specifically nothing in section 440.49(2), that requires the reclassification of wage loss benefits paid pursuant to section 440.15(3)(b) to PTD benefits under section 440.15(1) simply because the employer and carrier subsequently agreed to accept the claimant as PTD retroactively....

...er and carrier reimbursement for the permanent *490 wage loss benefits paid between May 1985 and December 1985. Addressing the Fund's cross-appeal, we find ample competent, substantial evidence in the record to support the finding of merger under subsection 440.49(2)(b)2.a on the grounds that "but for" the claimant's preexisting permanent mental retardation the industrial accident would not have occurred. We likewise disagree with the Fund that the order contains no specific finding of fact that supports a merger under subsection 440.49(2)(b)2.b by reason of a materially enhanced disability....

...n conformance with this opinion. REVERSED AND REMANDED. BOOTH and NIMMONS, JJ., concur. NOTES [1] The parties have not focused on the difference between this date and the date originally accepted as MMI. [2] This finding satisfies the criteria in subsection 440.49(2)(b)2.b. [3] Subsection 440.49(2)(d), although not implicated in this case, provides for reimbursement when a merger of the preexisting and subsequent conditions causes death within the specified periods of time....

...nly then seek reimbursement for excess compensation, because the Fund is not required to make any contemporaneous payments directly to the claimant. This meaning of the statutory scheme is made all the more clear by reference to the provisions in subsection 440.49(2)(a) specifying that this statute only creates a right to reimbursement in the employer and carrier who has already paid benefits and does not create or provide benefits for injured employees not otherwise provided by chapter 440.

...Fernyhough then performed lumbar fusions on February 2, 1992 and February 7, 1992. After the fusions, the employee was assigned an MMI date of January 5, 1993. Dr. Fernyhough stated the employee was totally disabled when he first saw him and when he last saw him. Section 440.49(2)(g), Florida Statutes (1987), provides in part: The right to reimbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or *145 carrier enti...

...The JCC erred, however, in finding the claim was timely because it was filed within two years of the first payment of PTD. We conclude that the phrase "whichever is later" refers to the later of the date the claimant last reached MMI or the date of the first payment of permanent benefits. Section 440.49(2)(g) is a non-claim statute and clearly bars any right to reimbursement unless the claim is filed within the statutory period....

...lity than would have resulted from the second injury alone, the maximum compensation allowed would be that which would have been allowed for the second injury alone. In Stephens , we held that this provision was incompatible with those of Fla. Stat. § 440.49(4)(c), F.S.A., which provided for reimbursement of an employer from the special disability trust fund for all compensation awarded for a second injury in excess of that which would have been allowed for the injury when considered by itself and not in conjunction with a previous impairment. We resolved the incompatibility by holding that, since § 440.15(5)(c) did not permit the recovery by an employee of any excess in successive-injury situations, then § 440.49(4)(c) must be the source of the excess benefit despite an indication elsewhere in § 440.49 that this was not intended....

...ble for the second injury alone — was changed to a minimum amount to be awarded. Clearly, then, § 440.15(5)(c) itself now allows an employee to recover excess benefits, for which the special disability fund will reimburse the employer, pursuant to § 440.49....

...ed. It is the amount by which the compensation ultimately awarded exceeds the minimum allowable. Our opinion in Special Disability Trust Fund v. Fleet Transport Company, 283 So.2d 31 (Fla. 1973), issued this date, outlines the procedure for applying § 440.49 to determine the amount to be reimbursed....

ERVIN, Judge. The employer/carrier (e/e) appeals an award by the deputy commissioner (dc) of rehabilitation benefits pursuant to Section 440.49, Florida Statutes....

...rs from the questions directed by the e/e during cross-examination of the witnesses that the e/e opposed the motion on the basis that claimant had not suffered any permanent impairment, and therefore was not entitled to rehabilitation benefits under Section 440.49, Florida Statutes (1983)....

...lude a request for a hearing. Adjudication shall be in the manner provided in rules 4.045, 4.075, and 4.085. (2) Claim for Reimbursement from Special Disability Trust Fund. A claim for reimbursement from the Special Disability Trust Fund filed under section 440.49(7), Florida Statutes, shall be made under the administrative rules promulgated by the division....

...mer *890 (4) The injured-employee seeks- (Type-or-nature of medically necessary attendant care-sought-)- (Justification for such-attendant care).- ^(K) Transportation and/or mileage costs $— = (L) Rehabilitative -temporary total compensation under section 440.491(6)(b), Florida Statutes, from tn .at a. rate of $ .. per week. In support thereof, the injured employee further states as-follows; = (I) The employee-ha-s-reached M-M-I- = (2) As-authorized under section-440.491(6)(a), -Florida Statutes, the division has approved the--injured employee for-training and education-to-obfaim suitable gainful employment and is receiving-suchrtraining and education-; = (3) (Optional) In addition-to-the temporary total-comp...

...The-injured-employee- seeks-(describe type or-nature ■ of medically necessary attendant-care-sought) ■_ JastiBcatio-n-for-such-attendant care. = (K) Transportation and/or-mileage, costs $ = 4L) Rehabilitative temporary-total- compensation under-seetion--440.491(6)(b), Florida Statutes, from . to at, a rate -of-$- per wreak — T-n support thereof, the injured employee-further states as follows: === (4) The employee has reaehed-M-ML = 42) As-authorized under section 440.491(6)(a-)¡-Florida-Statutes, the division has approved the injured empleyee-fer-training and-education to obtain-suitable gainful employment and ise?eeemng-such-training and education....

...are within a reasonable time. The injured employee seeks attendant care because _ Reimbursement of mileage to and from medical care providers in the amount of $_ (see attached mileage statement). ___ Rehabilitative Temporary Total Compensation under Section 440.491(6) (b), Florida Statutes, from_to_ at a rate of $_per week....

...Lockheed Space Operations and Aetna Life and Casualty Company (employer and carrier respectively, hereinafter e/c), appeal an order of the Judge of Compensation Claims (JCC) denying their motion to compel claimant Bettie Langworthy to participate in a reemployment assessment [1] pursuant to section 440.491(4)(Supp.1994)....

...She reached maximum medical improvement (MMI) in 1993. Since that time she has been employed part-time and receiving wage loss benefits. The e/c believe Ms. Langworthy is underemployed, and sent her a letter requesting her participation in a reemployment assessment pursuant to section 440.491(4), Florida Statutes (Supp.1994). Ms. Langworthy refused to attend, and the e/c moved to compel her participation. The JCC denied the motion to compel, ruling that section 440.491(4) cannot be applied retroactively to this claimant. As the basis for his ruling, the JCC reasoned that section 440.491(4) shifts the cost of providing rehabilitation back to the employer/carrier, and is therefore substantive. The issue in this case is whether section 440.491(4) is substantive or procedural. We conclude that section 440.491(4)(Supp.1994) is procedural and, accordingly, we reverse....

...1st DCA 1981) this court held that the legislature's enactment of an evaluatory tool was procedural and not substantive. There, this court addressed the question whether a JCC erred in concluding that a claimant was PTD and contemporaneously ordering an evaluation for vocational rehabilitation. This court held that section 440.49(1)(c)(1979), under which, prior to adjudicating a claimant PTD, the deputy commissioner was required to determine whether there was a reasonable probability that the claimant could be vocationally rehabilitated, was "plainly procedural...

...that the statute alters the rights, obligations and duties of the e/c because it shifts the cost of rehabilitation back to the carrier from the Division. But at the time of the claimant's accident the cost of rehabilitation was borne by the e/c. See § 440.49(1)(a), Fla. Stat. (1987). The legislature altered that obligation in the 1989 statutes, see section 440.49(1)(a), Florida Statutes (1989)....

...If that was the determining factor, the JCC would have erred in concluding that the rights of the e/c had been substantively altered by returning to the law as it existed at the time of the claimant's injury. However, this case does not involve the question of shifting the cost of rehabilitation. Subsection 440.491(4)(a) provides, in pertinent part: "The carrier may require the employee to receive a reemployment assessment as it considers appropriate...." The provision at issue in this case is merely an assessment, an evaluative tool made available to the e/c at their own cost but also at their own option....

...al diagnosis, treatment, and prognosis; includes conferences with the employer, physician, and claimant; and recommends a cost-effective physical and vocational rehabilitation plan to assist the employee in returning to suitable gainful employment." § 440.491(1)(d), Fla....

...l Florida area. Based on his finding that claimant had demonstrated his suitability for the SCVC program by having successfully completed nine months of the prescribed curriculum, the judge concluded that the two-year program was suitable, but under section 440.49, the employer could be required to pay for no more than fifty-two weeks of the program....

...rd for the period at issue, based on deemed earnings of $6.00 per hour. The issue on cross-appeal concerns the award of fifty-two weeks of rehabilitative services, together with fifty-two weeks of TTD benefits. The statute applicable in this case is section 440.49(1), Florida Statutes (1983), which provides in part: (d) 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 pr...

...As employer/carrier assert, the critical inquiry on this point is whether the remedial mathematics and English courses provided at the expense of employer/carrier at St. Petersburg Junior College constituted the “rehabilitation services” contemplated by section 440.49, Florida Statutes (1983)....

...1st DCA 1982), this court determined that specialized job placement does not constitute rehabilitation under the statute. In Bammac, Inc. v. Grady, 500 So.2d 274 (Fla. 1st DCA 1986), the court noted that testing and evaluation procedures constitute rehabilitation services within the meaning of the statute. The section 440.49(l)(a) rehabilitation services to which an injured employee is entitled are such services as will return the employee to suitable gainful employment....

...irtually every vocational training program, it appears that education in these skills should be considered a rehabilitative service which offers “an opportunity to restore the individual ... to his average weekly earnings at the time of injury.” § 440.49(l)(a), Fla.Stat....

...(1983). We conclude that the remedial English and mathematics courses undertaken by claimant at the recommendation of vocational counselors and at the expense of employer/carrier fall within the purview of the rehabilitation services contemplated by section 440.49(l)(a)....

...lude a request for a hearing. Adjudication shall be in the manner provided in rules 4.045, 4.075, and 4.085. (2) Claim for Reimbursement from Special Disability Trust Fund. A claim for reimbursement from the Special Disability Trust Fund filed under section 440.49(7), Florida Statutes, shall be made under the administrative rules promulgated by the division....

...are within a reasonable time. The injured employee seeks attendant care because. .. _Reimbursement of mileage to and from medical care providers in the amount of $_(see attached mileage statement). _Rehabilitative Temporary Total Compensation under Ssection 440.491(6)(b), Florida Statutes, from_to_at a rate of $-per week....

...Disability Trust Fund, Tallahassee, for appellant. Janet Jaspers of Matusek, Ogden, McKnight & Hudson, P.A., St. Petersburg, for appellees. ZEHMER, Judge. The Special Disability Trust Fund (Fund) appeals the deputy commissioner's order directing it to reimburse the employer pursuant to section 440.49, Florida Statutes (1979), for excess permanent disability benefits and temporary total and medical benefits....

...Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983). Claimant's claim was subsequently settled by lump-sum payment. [1] Following payment of Flatt's claim, the employer sought reimbursement from the Fund pursuant to the formula contained in section 440.49, Florida Statutes (1979)....

...bar against any alcohol-related impairment forming the basis of merger; (2) the employer failed to establish merger; and (3) the employer *393 did not have knowledge of claimant's preexisting Korsakoff's Syndrome, as required for reimbursement under section 440.49(2)(f), Florida Statutes (1979)....

...arcotic drugs, shall be deemed not to be an injury by accident arising out of employment. [Emphasis added.] The Fund argues that this latter provision creates a bar against a preexisting alcohol-related impairment forming the basis of a merger under section 440.49. We decline to accept the Fund's statutory construction. The word "accident" in section 440.49(2)(b)(2) is preceded by the word "subsequent." This section is clearly meant to refer to the second or industrial injury, in this case the rupture of claimant's aneurysm....

...ly. That is not the case here. The purpose of the special disability trust fund statute is to encourage the employment of workers with permanent physical impairments by protecting employers from excess liability for compensation and medical expense. § 440.49(2)(a), Fla. Stat. (1979). The preexisting condition necessary to form the basis of merger is a "preexisting permanent physical impairment." § 440.49(2)(c)(1), Fla....

..."Permanent physical impairment" is defined as " any permanent condition due to previous accident or disease or any congenital condition which is, or is likely to be, a hindrance or obstacle to employment, but not due to the natural aging process." § 440.49(2)(b)(1), Fla....

...of Korsakoff's Syndrome, is therefore rejected. Finally, we reach the question of whether the employer's lack of knowledge of the fact that claimant suffered from Korsakoff's Syndrome, as distinguished from alcoholism, would preclude reimbursement. Section 440.49(2)(f)(1), Florida Statutes (1979), provides in relevant part: No reimbursement shall be allowed under this subsection unless it is established that the employer reached an informed conclusion prior to the occurrence of the subsequent i...

...Campbell stated that "Korsakoff's Syndrome is a classical vitamin deficiency syndrome brought about by excess use of alcohol" and that "[p]robably the second most common ill consequence of chronic alcoholism after a liver disease is organic brain syndrome." Section 440.49(2)(a) directs the Division to liberally interpret eligibility requirements for benefits under this section....

...award is made or, (2) was producing no disability at the time of the accident but through its normal progress is doing so at the time permanent disability is determined and an award is made [Emphasis added.]." [3] That is, without bringing into play Section 440.49(4), when a prior condition merges with a compensable injury to produce at the time of maximum medical improvement a greater disability than the injury alone would have produced, an employee is not compensated for that portion of his permanent disability attributable to the prior condition....

...But inasmuch as there was a manifestation of the prior disease at the time permanent disability was determined in the form of a greater disability than would have been produced by the injury alone, apportionment of claimant's benefits (except for operation of Section 440.49(4) would be proper, contrary to the Judge's two above-quoted statements. [3a] On the other hand Section 440.49(4), Florida Statutes, F.S.A....

...Even though there would otherwise be apportionment under Section 440.02(19) in either of the two circumstances discussed in the preceding paragraph, there is no apportionment or carving out of benefits due the employee, according to prior case law. [4] Section 440.49(4) in turn entitles the employer/carrier to apply for reimbursement for that portion of benefits paid attributable to the preexisting disease or condition....

...Since 1959, the Workmen's Compensation Act has provided that the employer/carrier shall proceed to make its claim against the Special Disability Fund through a separate proceeding arising only after claimant's case is settled either administratively or pursuant to an order. Section 440.49(4) (g), Florida Statutes, [5] F.S.A., expressly provides that right to reimbursement from the Fund must be initiated within sixty days after conclusion of the proceedings on the merits between claimant and employer/carrier. While perhaps the findings made in claimant's case on the merits may have considerable bearing or influence upon findings in the later and separate claim against the Special Disability Fund, Section 440.49(4) (g) expressly provides that "no findings of fact made with respect to the claim of the injured employee or his dependents for compensation shall be res judicata, * * *" [6] This prohibition is fully in accord with the statutory sche...

...* * In such proceeding on a claim for reimbursement no findings of fact made with respect to the claim of the injured employee or his dependents for compensation shall be res judicata, and the special disability trust fund shall be made the party respondent. * * *" Fla. Stat. § 440.49(4) (g) (1969), F.S.A....

...n of the order was mere dicta, and was not actually a finding at all. Since the question whether claimant was PTD was ripe and at issue, it should have been ruled upon. Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809 (Fla. 1st DCA 1982). Section 440.49(l)(c), Fla....

...d a compromise settlement, which was approved by order of the Judge of Industrial Claims on November 19, 1970. The amount of the lump sum settlement was $7,723.61. Southland then filed a claim against the Fund for reimbursement pursuant to Fla.Stat. 440.49(4) (d), contending that the deceased employee had died due to the combined effect of his pre-existing hypertension and the effects of the June 9, 1969, incident with the intoxicated customer....

...9, and is the obligation solely of the employer/carrier ; that the employer/carrier having paid the sum of $7,723.61 in compensation benefits, is entitled to be reimbursed by the Fund in the amount of $1,723.61, which represents the excess (as per F.S. 440.49(4) (d), F.S.A.)....

...The latter is the amount properly borne by the employer, and the difference between the former and the latter is the amount for which the employer can properly seek reimbursement from the Fund, if that amount exceeds the minimum requirement of $1500.00. Fla.Stat. § 440.49(4) (f), F.S.A. “Thus, for purposes of implementing Fla.Stat. § 440.49, F.S.A., the Judge of Industrial Claims must make findings of fact as to the dollar amount of compen *903 sation and medical benefits actually paid by the employer, and as to the amount of compensation and medical benefits which would have...

...Southland contends that pursuant to Fleet Transport it should be reimbursed 100% of the death benefits paid to the dependents of the deceased since the death would not have occurred in the absence of the pre-existing condition, a prerequisite to Fund reimbursement under F.S. 440.49 (4)(d). 1 The Fund protests that if such were the case it would have to reimburse 100% in all death cases, a result obviously not intended by the Legislature in adopting F.S. 440.49....

...subsequent injury, not death benefits, and it is this compensation, if any, that is to be deducted from the total compensation paid for death. Section 440.15(5) (d) (3) was amended in 1959, however, the effect of which requires re-examination. See F.S. 440.49(4) (d) supra, for the amended version....

...maximum death benefits determined to be owed the dependents, the ultimate result will obviously *907 differ from that reached by the Commission. The next question is whether funeral expenses paid by Southland are reimbursable by the Fund. Fla.Stat. § 440.49 (4) (d) provides that the employer shall pay the funeral expenses and death benefits provided in Chapter 440 but shall be reimbursed from the Fund for all excess “compensation for death” otherwise payable for acceleration of death....

...We find that the term “compensation for death” describes “death benefits”, excluding funeral expenses. The Florida Special Disability Fund provisions are modeled after the New York Workmen’s Compensation Law. 4 Article II, § 15(8)(d), New York Compensation Law is almost identical to § 440.49(4) (d), F.S.A....

...nses under Article II, § 15(8) (d) New York Workmen’s Compensation Law. Although the New York statute provides that the employer shall be reimbursed for all excess “death benefits”, we hold that the term “compensation for death” used in F.S. 440.49(4) (d) is the equivalent of the term “death benefits” used in the New York statute as well as in F.S. 440.49(4) (d)....

...It seems reasonably clear from a reading of the statute that the Legislature did not intend to include funeral expenses in the general term “death benefits”, or otherwise there would have been no point in the separation of the two items. We note that the Florida Legislature has recently amended § 440.49(4) (d), F.S., (1974), providing for reimbursement of 75'% of the amount paid as funeral expenses....

...rust Fund. The decision of the Industrial Relations Commission is quashed, with directions to remand for proceedings not inconsistent herewith. ROBERTS and OVERTON, JJ., and CHAPPELL, Circuit Judge, concur. ENGLAND, J., dissenting with an opinion. . 440.49(4) (d) provides, with emphasis supplied to the essential elements: “(d)When death results....

...attributable to the industrial accident remains valid for the determination of the amount of compensation attributable to the last accident’s acceleration of death considered by itself. . Unit Wall v. Speh, 133 So.2d 304 (Fla.1961). . See text of 440.49(4) (d) quoted at Note 1, supra.

...ude a reo[uest for a hearing. Adjudication shall be in the manner provided in rules 4.045, 4.075, and 4.085. (2) Claim for Reimbursement From Special Disability Trust Fund. A claim for reimbursement from the Special Disability Trust Fund filed under section 440.49(7), Florida Statutes, shall be made under the administrative rules promulgated by the division....

...easonable time. (1) The injured employee seeks. (Type or nature of medically necessary attendant care sought). (Justification for such attendant care). (K) Transportation and/or mileage costs $_. (L) Rehabilitative temporary total compensation under section 440.491(6)(b), Florida Statutes, from to at a rate of $ per week. In support thereof, the injured employee further states as follows: _ (1) The employee has reached MMI. _ (2) As authorized under section 440.491(6)(a), Florida Statutes, the division has approved the injured employee for training and education to obtain suitable gainful employment and is receiving such training and education....

...ble time. The injured employee seeks (describe type or nature of medically necessary attendant care sought) *688 Justification for such attendant care. (K) Transportation and/or mileage costs $_. (L) Rehabilitative temporary total compensation under section 440.491(6)(b), Florida Statutes, from to at a rate of $ per week. In support thereof, the injured employee further states as follows: _(1) The employee has reached MMI. _(2) As authorized under section 440.491(6)(a), Florida Statutes, the division has approved the injured employee for training and education to obtain suitable gainful employment and is receiving such training and education....

encourages the rehabilitation of injured employees. Section 440.49, Florida Statutes (1977) provided that in cases

provide rehabilitative services pursuant to section 440.49(l)(a), Florida Statutes (1983). Appellants

not in conjunction with a previous injury. Section 440.49(4) (c) reads: “(c) Permanent disability after

res judicata.” This provision was added to Section 440.49(4)(g) by Chapter 74-197, § 21, Laws of Florida

December 6, 1993, was therefore timely under section 440.49(2)(g), Florida Statutes (1987). She ordered

or under a rehabilitative program pursuant to F.S. 440.49(1), (2), or (3),” concluding that the provisions

procedures for obtaining rehabilitation set up by Section 440.49, Florida Statutes were not complied with. From

period at issue is section 440.49(2)(c)3, Florida Statutes (1991). Section 440.49(2)(c)3 provides: 3

reimbursement to the employer. Florida Statutes, Section 440.49(5)(a) (1978 Supp.).2 Here, the order found

not present further evidence on that point. Section 440.49(1), Florida Statutes (Supp.1978), provides

employer/carrier partial reimbursement under Section 440.49(4)(e) for temporary total disability and permanent

obstacle to his employment within the dictates of Section 440.-49(2)(f)(l), Florida Statutes. AFFIRMED. WENTWORTH

alternative definitions of merger provided in section 440.-49(2)(b)2, Florida Statutes (1983): a. Had the

contend, the JCC disregarded the mandate of section 440.49(l)(c), Florida Statutes, as amended by Chapter

Disability Fund disposition of the case. See F.S. Section 440.49, F.S.A., and subsection 4(b) in particular

Deputy Commissioner’s attention ia invited to Section 440.49(3), Florida Statutes [F.S.A.], which states

hearing within the time required. We reverse. Section 440.49(2)(g), Florida Statutes, provides, in pertinent

That statute has been renumbered and appears at § 440.49.) It is obvious that the only real difference

paragraph 7, the judge properly considered section 440.49(l)(c) and determined that, since vocational

entitlement to reimbursement in this case is section 440.49(6)(a)24, Florida Statutes, which was substantially

reimburse the employer/carrier (e/c) pursuant to Section 440.49(2), Florida Statutes (1983), for benefits paid

action. The JCC ruled against E/C; we reverse. Section 440.49(7)(a), Florida Statutes, provides that employer/carriers

care and temporary benefits here in question. § 440.49(2)(e), Florida Statutes. The alternative finding

reimbursement from the Special Disability Trust Fund. Section 440.49(2)(b)2.b. provides: Merger describes or means

[claimant] in finding work outside his experience.” Section 440.49(l)(a), Fla.Stat., (1989),1 places the burden

denying their claim for reimbursement under section 440.49(2), Florida Statutes (1983). We reverse. The

disability and medical benefits pursuant to section 440.49, Florida Statutes (1995). We agree with the

Special Disability Trust Fund is liable pursuant to § 440.49, Florida Statutes, for reimbursement to the employer/carrier

average weekly earnings at the time of injury.” Section 440.49(l)(a), Florida Statutes. Cf Underwood v. Terminal-Frouge

was entitled to the conclusive presumption in section 440.49(2)(f)l, Florida Statutes (1985), and to reimbursement

widow and surviving children under Fla.Stat. § 440.-49(4) (d) F.S.A., would have to be apportioned between

Statutes (1987) or rehabilitation benefits under Section 440.49. The E/C argues on appeal that the lump sum

meet the $10,000 deductible. The JCC cited section 440.49(4)(a), Florida Statutes (1995), in its order

be a hindrance to employment as required by Section 440.49, Florida Statutes (1979), and ordered the employer/carrier

second carrier’s claim against the Fund under section 440.49(2), Florida Statutes (1987), for reimbursement

claim for reimbursement by the Fund pursuant to F. S. 440.49(4) (g), which in pertinent part provides': “[Section]

appeals an order requiring it, pursuant to section 440.49(2)(b), Florida Statutes (1991), to reimburse

responsible for claimant’s rehabilitation since section 440.49, as amended in 1989, now makes the Division

compensation benefits are paid) but is only found in F.S. § 440.49 (the disability fund statute) ; we further observed

timely under section 440.49(7)(c), Florida Statutes. We agree and reverse. Section 440.49(7)(c), Florida

their notice of claim for reimbursement based on § 440.49(2)(g), Florida Statutes (1985), which provides:

travel costs to a rehabilitation program under Section 440.49(1), Florida Statutes (1981). We affirm. The

1965). Therefore, under the Provisions of Florida Statute 440.49(4) (c) [F.S.A.], the employer at the time

confusion similar to that in the present record. Section 440.49(1) requires an evaluation or recommendation

ap-pellees’ claim for reimbursement pursuant to section 440.49, Florida Statutes; and 2) whether the JCC erred

Florida Statutes, which the Division administers. Section 440.49(1), Florida Statutes (1991), which requires

by the Division of Workers’ Compensation. Section 440.-49(1), Florida Statutes (1977). On July 9, 1979

in F. Benson, the extended filing period in section 440.49(2)(g), Florida Statutes (1987), applies to

in excess of the minimum requirement of F.S. Section 440.49(4) (f), F.S.A., and the increase of 5 per cent

, Fla., 201 So.2d 731, we referred to F.S. Section 440.49(4) (c), F.S.A., and related it to our decision

reimbursement within 60 days as required by section 440.49(2)(g), Florida Statutes (1983), we reverse

or services when they are deemed necessary. Section 440.49(1)(a), Florida Statutes (1979); Hurricane Fence

sought reimbursement from the Fund pursuant to section 440.49(2)(b)3., Florida Statutes (1989), alleging

for purposes of rehabilitation services under Section 440.49, Florida Statutes, is irrelevant to his status

of Workers’ Compensation did not comply with Section 440.49(1), Florida Statutes (1981). LARRY G. SMITH

97-262, § 1, at 4720, Laws of Fla. (codified at § 440.49(7)(c), Fla. Stat. (1997)). By the time the City

rehabilitation procedures as provided for under section 440.49, Fla.Stat., F.S.A. The question of the correctness

time as the claimant is presently unemployed. Section 440.49(1)(a), Florida Statutes (1981) provides: When

from the Special Disability Fund pursuant to Section 440.49, Florida Statutes, F.S.A. The Fund argued that

assessments be based on “net premiums written,” § 440.49(9)(b)(3), Fla. Stat. (1999), amended, by ch. 2000-150

the form of wage loss benefits), is barred by section 440.49(2)(g), Florida Statutes (1985). The 60-day

Newcombe, IRC Order 2-3363 (Feb. 22, 1978). See also § 440.49(5)(b)l, Florida Statutes. The order is accordingly

Special Disability Trust Fund, pursuant to section 440.49(2)(c), Florida Statutes, required to reimburse

sought to obtain the agency's interpretation of section 440.49(2)(f)2, Florida Statutes (1991), which provides

settlement. In separate proceedings, pursuant to Section 440.49(4), Florida Statutes (1975), the employer and

term “net premiums written,” as contained in section 440.49, Florida Statutes, include ceded reinsurance

payments to an employee in accordance with Section 440.49, Florida Statutes (1975). The deputy commissioner

determined that the claim was timely filed under section 440.49(2), Florida Statutes (1987). Contrary to the

benefits. In considering the applicability of Section 440.49(4) (c), Florida Statutes, F.S.A., the deputy

permanent physical impairment as prescribed in F.S. Section 440.49(4) (b), F.S.A. However, Deputy Commissioner

The.issue in this appeal is the construction of § 440.49(4)(e), Florida Statutes (1975), which reads: Subject

other elements of the claim had been satisfied. Section 440.49(2)(g), Florida Statutes (1979), required a

unnecessary for us to address the application of section 440.49(l)(a), Florida Statutes (1990),2 to accidents

constituted a permanent physical impairment under section 440.49(2)(b)l., Florida Statutes (1985), and that

permanently and totally disabled. We disagree. Section 440.49(2), Florida Statutes (1991), authorizes reimbursement

application for reimbursement be dismissed. Section 440.49(2)(g), Florida Statutes (1987), states in part:

that it reimburse the employer pursuant to section 440.49, Florida Statutes (1993), for excess compensation

deputy’s failure to bar the claim pursuant to Section 440.49(5)(g), Florida Statutes (Supp.1978). We affirm

additional death benefits under the statute. Under section 440.49(2)(d), Florida Statutes (1980), the E/C was

request for additional rehabilitation pursuant to Section 440.49(l)(d) and (e), Florida Statutes. The denial

rehabilitation benefits as requested with Jerry Adato. Section 440.49(l)(a), Florida Statutes (1986) states as follows:

liability for compensation and medical expense. . . ." § 440.49(1), Fla. Stat. The SDTF is maintained by annual

its first payment of excess compensation. See § 440.49(4)(g), Fla.Stat. (Supp.1974). We affirm not because

Special Disability Trust Fund, pursuant to section 440.49, Florida Statutes, to reimburse the appropriate

employer/carrier's claim for reimbursement pursuant to Section 440.49, Florida Statutes (1979). We reverse. The employer/carrier

mooting consideration of the remaining issues. Section 440.49(2)©, Florida Statutes (1985), bars an employer

v. Tropicana, Etc., 358 So.2d 1 (Fla.1978); section 440.49(2)(i), Florida Statutes (1979). Accordingly

the carrier’s claim for reimbursement under Section 440.49, Florida Statutes (1977). The carrier concedes

attorney’s fees, is granted on authority of Section 440.-49(4)(f)2, Florida Statutes (1977), and the order

odds” with the concept of “rehabilitation” in section 440.49, Florida Statutes (1987), as interpreted by

Special Disability Trust Fund, which was denied. Section 440.49(2)(g), Florida Statutes (1981),1 provides,

she is able to satisfy the requirements of Section 440.49(1)(a), Florida Statutes (1987). Cf. Professional

disability (TTD) and medical benefits is barred by Section 440.49(2)(g), Florida Statutes (1981). Hall, the claimant

order the Fund to pay a claimant directly. See § 440.49(2)(a), Fla.Stat. (1981) (“this subsection shall

the Special Disability Trust Fund pursuant to section 440.49(2), Florida Statutes (1983). Although the Fund

the first step in the reimbursement process. See § 440.49(2)(g), Fla. Stat. (Supp.1990). The Fund notified

vocational rehabilitation training pursuant to section 440.49(1) is entitled to receive temporary disability

reimbursement accrues every six months pursuant to section 440.49(2)(g), Florida Statutes (1981), and it is not

August 13, 1974, satisfied the requirement of Section 440.49(4)(g), Florida Statutes (1973), that any claim

Compensation Practice, section 7.7 (3d ed. 1986); section 440.-49(2)(b)2.b., Florida Statutes. Since there is

employer/carrier. While we recognize that under Section 440.49(4)(a), Florida Statutes, findings of fact with

evidence fails to establish “merger” under Section 440.-49(2)(b)2.b., Florida Statutes, and that ap-pellee

constitute a “permanent physical impairment” under section 440.49(2)(b)l., Florida Statutes (1985), so as to

applicable in the instant case is one year. See § 440.49(7)(f), Fla. Stat. (1999). Because the request

classification of future benefits in the settlement order. § 440.49(2)(g), Florida Statutes. The deputy’s resolution

equal to those earned prior to the injury. See § 440.49(1)(a), Fla.Stat. (1987); A.D. Builders, Inc. v

ambit of rehabilitation expenses authorized by section 440.49, Florida Statutes, stating that chapter 440

laboratory assistant for a period of 26 weeks. Section 440.49(l)(a), Florida Statutes (1981), entitles an

excess compensation was paid as required by Section 440.49(2)(c)3, Florida Statutes; or, (2) if Frey was

ordered the Fund to reimburse the E/SA under section 440.49(2) for benefits paid subsequent to the December

the Special Disability Trust Fund pursuant to section 440.49(2), Florida Statutes (1991). Because the appellants

clear that for purposes of implementing Fla.Stat. § 440.49, F.S.A., the deputy commissioner must make findings

the employment of the physically handicapped.” § 440.49(2)(a), Fla. Stat. (Supp.1990). The means by which

the Special Disability Trust Fund pursuant to Section 440.49(2), Florida Statutes, shall be made substantially

legislature’s intent in creating the Fund is stated in Section 440.49(2)(a), Florida Statutes (1981). Although not

employer/carrier’s claim for reimbursement under Section 440.49(5)(f), Florida Statutes (1978 Supp.). Likewise

than two years after the MMI date, contrary to section 440.49(2)(g), Florida Statutes (1987).1 The E/SA argues

October 1,1974 effective date of amendments to § 440.49(4), (b), Fla.Stat., knowledge is in our opinion

receiving rehabilitation and retraining under section 440.49, Florida Statutes (Supp.1990), if such retraining

Fund (Fund), we have occasion *261to construe section 440.49, Florida Statutes (Supp.1994). This statute

not decide whether an amended provision of Section 440.49(l)(a), Florida Statutes (1990),1 which took

Special Disability Fund provisions of the Act, Section 440.49 (4) (c), Fla.Stat, F.S.A., come into play;

cause total disability. Under Florida Statutes § 440.49(4), F.S.A., if an employer knows of the physical

rehabilitation investigation conducted pursuant to Section 440.49, Florida Statutes, F.S.A. Subsequently, the

of Compensation Claims denying, pursuant to section 440.49(6)(a), Florida Statutes (1994), appellants’