Judge rules that a prior final compensation order did not predict that permanent total disability benefits would flow from the award in that the claimant intended, but did not, undergo a surgery to alleviate the work-related injury.

The claimant filed a petition for benefits, seeking permanent total disability benefits. The employer/carrier voluntarily accepted but denied penalties, interest, costs and  attorney’s fees. The claimant later filed a verified petition for attorney’s fees and costs, to which the employer/carrier objected. The judge ruled that no fees were due on the permanent total disability benefits. A prior final compensation order denied the employer/carrier’s misrepresentation defense and awarded lumbar surgery, temporary partial disability benefits, impairment benefits, attorney’s fees and costs. The claimant did not undergo the surgery.

In this case, the claimant argued that the permanent total disability benefits flowed from her attorney having successfully defeated the prior misrepresentation defense to temporary disability benefits. The First District Court of Appeal agreed with the judge and found that the prior final compensation order did not predict that permanent total disability benefits would flow from the award in that the claimant intended to undergo a surgery to alleviate the back condition.

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