BREVARD COUNTY SCHOOL BOARD AND THE HARTFORD INSURANCE GROUP, APPELLANTS/CROSS-APPELLEES,
v.
DORIS JAMES KING, APPELLEE/CROSS-APPELLANT
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The Florida District Court of Appeal reversed a workers' compensation award of permanent total disability, finding that a teacher's aide with a 10% anatomical impairment rating failed to demonstrate a loss of wage-earning capacity beyond her anatomical rating. The court held that pain alone does not justify refusing to seek employment, particularly after the claimant reached maximum medical improvement.
The court reversed the award of permanent total disability, holding that the claimant failed to demonstrate a loss of wage-earning capacity in excess of her 10% anatomical rating. Pain alone does not justify refusing to seek employment, and the claimant's refusal to test her employability despite physician recommendations supports finding that she did not establish total disability.
[1] Pain alone does not necessarily indicate a loss of wage earning capacity, nor is it an excuse for not seeking a job.
[2] A claimant must demonstrate a loss of wage earning capacity in excess of their anatomical impairment rating to justify benefits beyond that rating.
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Join FLexlaw to unlock all legal intelligence“Pain alone does not necessarily indicate a loss of wage earning capacity, nor is it an excuse for not seeking a job.”
Establishes the governing legal principle that subjective pain complaints are insufficient to support permanent total disability without demonstration of actual wage-earning incapacity.
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Join FLexlaw to unlock all legal intelligenceA 49-year-old teacher's aide with a high school education suffered a compensable workplace accident on February 20, 1975. Her treating physician repor…
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PER CURIAM.
The claimant, a 49-year old teacher’s aide with a high school education, received an anatomical impairment rating of 10% based solely on physical complaints arising out of a compensable accident that occurred on February 20, 1975. Dr. Jesse Ledbetter treated her from the date of accident until June of 1975 and reported that as of April 11th she was able to return to work. She, however, remained unemployed and, on May 9th and June 5th, Dr. Ledbet-ter repeated his suggestion that she return to work. The claimant changed doctors and, on July 9, 1975, she was seen by Dr. Diaz who initially suspicioned a herniated disc. Objective testing was negative, but on August 18, 1975, the doctor advised the claimant to remain out of work for another 3-6 months. Her complaints continued and by January of 1976, Dr. Diaz felt that there was possible psychological overlay. Claimant moved to Texas and began seeing Dr. DeYoung who, on May 24th, advised her that there was nothing physically preventing her from returning to work.
On June 10, 1976 she was involved in a non-compen-sable automobile accident and underwent a laminectomy for neck and shoulder problems incident thereto. She chose not to follow through with suggested psychological treatment and, on December 10, 1977, Dr. Kornblit opined that she had reached a point of maximum medical improvement with 10% permanent partial disability of the body as a whole, in spite of the cervical laminectomy. The factual situation is such that the record will support the deputy’s finding that a job search was not required from February 20, 1975 until December 10, 1977. We can, however, find no evidence justifying claimant’s failure to seek a job subsequent to December 10th. Pain alone does not necessarily indicate a loss of wage earning capacity, nor is it an excuse for not seeking a job. Knittel v. Terminal Transport Co., IRC Order 2-3114 (February 28, 1977).
The claimant has not demonstrated a loss of wage earning capacity in excess of her anatomical rating.
Accordingly the record will not support the deputy’s finding of permanent total disability. This is borne out by claimant’s refusal to test her employability despite repeated suggestions by her physicians that she return to work.
The decretal portion of the deputy’s order correctly adopts the stipulated date of maximum medical improvement, therefore, any finding to the contrary is harmless error. The issue of apportionment argued in the main brief and by cross-appeal has not been treated in light of this reversal.
The order is reversed and the cause remanded to the deputy with directions that he reconsider his order in accordance with this opinion.
ERVIN, SHAW and WENTWORTH, JJ., concur.
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