ROTHENBERG, J.
Daniel Stahl ("the plaintiff") appeals from an adverse final judgment following the trial court's order granting the defendant's, Tenet Health Systems, Inc. ("Tenet"), motion to dismiss the plaintiff's complaint with prejudice. We affirm.
In December 2003, while working for Tenet as a registered nurse, the plaintiff injured his back. The plaintiff filed a workers' compensation claim, and Tenet paid out the benefits required under the Workers' Compensation Act ("the Act"). The treating physician assigned a seven percent disability rating to the plaintiff. In October 2005, the physician determined that the plaintiff had reached maximum medical improvement. Accordingly, Tenet paid out fourteen weeks of permanent impairment benefits as required by the Act. See § 440.15(3)(g)1, Fla. Stat. (2003) (providing for two weeks of benefits for each percentage point of impairment between one and ten percent).
The plaintiff sought additional benefits for permanent total disability before the Office of the Judges of Compensation Claims ("OJCC"). Tenet and the plaintiff actively litigated those claims before the OJCC, and a final hearing was scheduled in April 2007. However, the plaintiff filed a lawsuit against Tenet in the trial court, and voluntarily dismissed his petition before the OJCC. In the first complaint, the plaintiff alleged that Tenet's negligence caused him permanent disability in the form of the loss of wage earning capacity. Further, he alleged, because the 2003 version of section 440.15(3) eliminated any benefits for such recovery, the plaintiff could recover those losses by way of a tort suit. Tenet moved to dismiss this complaint, arguing that the claim was barred by workers' compensation immunity, and Tenet had fully complied with its statutory obligations. By agreed order, the trial court dismissed the first complaint without prejudice.
The plaintiff's first amended complaint was a declaratory judgment action seeking a finding that section 440.15(3), Florida Statutes (2003), was unconstitutional. The plaintiff claimed that section 440.15(3) eliminated (for someone with his level of disability) his common law right to wage-loss benefits. Tenet moved to dismiss that complaint, arguing that the trial court lacked jurisdiction, the plaintiff lacked standing, and any challenge to the Act's constitutionality should have been raised before the OJCC. The trial court dismissed the first amended complaint without prejudice.
The second amended complaint was essentially the same as the first amended complaint, making a limited challenge to section 440.15(3), as amended in 2003. Tenet moved to dismiss the second amended complaint upon the same grounds raised in its previous motion. The trial court dismissed the second amended complaint with prejudice, and entered final judgment in favor of Tenet. This appeal followed.
The plaintiff has pursued a rather unconventional procedural course in this case. He litigated his petition for benefits before the OJCC for more than three years without once contending that the statute was unconstitutional. Then, before the conclusion of those proceedings, he voluntarily abandoned his benefits petition
Even if the plaintiff's chosen procedural course was appropriate (which is far from certain),
In this case, the plaintiff abandoned his petition for benefits, and therefore, this Court was not presented with an OJCC finding that but for the 2003 statute he would be entitled to wage-loss benefits. Similarly, a review of the evidence presented in this case reveals that under all versions of section 440.15(3) between 1993 and 2003,
We therefore affirm the trial court's order granting Tenet's motion to dismiss the plaintiff's complaint with prejudice.
Affirmed.