CATHERINE LEIGHT, APPELLANT,
v.
ALADDIN MOVING COMPANY AND FIREMAN'S FUND, APPELLEES
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In this workers' compensation appeal, the court reversed the lower court's finding that Catherine Leight sustained only 75% permanent partial disability, holding instead that she was entitled to permanent total disability benefits based on uncontroverted evidence of her inability to work even part-time.
The court held that the appellant established permanent total disability and was entitled to total disability benefits rather than partial disability. The appellant presented uncontroverted evidence of total inability to work even part-time, and the employer failed to present any evidence of suitable available employment for her disabled condition.
[1] A judge of industrial claims errs in finding only a 75% permanent partial disability when uncontroverted evidence demonstrates the claimant is unable to work even part-ti…
[2] A claimant's job search sufficiently comports with their abilities and restrictions when it is the best they can do given their limitations, shifting the burden to the em…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“His opinion was that she would be unable to work on either a full or part-time basis because any activity would likely activate some part of her body that had been affected by her injuries.”
Establishes the uncontroverted medical evidence that the appellant was totally disabled and unable to engage in any work, full-time or part-time.
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Join FLexlaw to unlock all legal intelligenceCatherine Leight, a 65-year-old former secretary/bookkeeper, suffered injuries leaving her anatomically totally disabled according to her treating phy…
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PER CURIAM.
Appellant contends that the judge of industrial claims erred in finding that she sustained only a 75% permanent partial disability due to a loss of wage earning capacity. After carefully considering the record and the briefs in this case, we agree with the appellant that the order is in error. The basic controversy between the parties concerns the appellant’s ability to secure and hold employment in the open labor market in light of her physical disabilities. The order finds that the appellant is severely limited, but further states “I do feel that there is possibly some type of part-time work in which the claimant could become engaged.”
The appellant presented uncontroverted evidence that she is unable to work even part-time. Her treating physician testified that the appellant was, anatomically, totally disabled. His opinion was that she would be unable to work on either a full or part-time basis because any activity would likely activate some part of her body that had been affected by her injuries.
The 65 year old appellant testified that walking was painful, sitting for any length of time was painful, and that she could not perform her own housekeeping chores without assistance. She attempted, on two separate occasions, to return to work as a secretary/bookkeeper. On both occasions, she was unable to continue working because of increasing symptoms. The vocational re habilitation nurse’s report indicated that the type of work the appellant attempted to return to without success would be as sedentary as she would be able to find on the open labor market.
Although the testimony in evidence as to the appellant’s testing of the labor market discloses a minimal effort, -we conclude that her job search sufficiently comports with her abilities and restrictions. Matera v. Gautier, 133 So. 2d 732 (Fla.1961). The burden was therefore shifted to the employer to show that suitable work was in fact available. Mahler v. Lauderdale Lakes, 322 So. 2d 507 (Fla.1975). However, the employer here failed to present any evidence of available employment suitable for the appellant in her disabled state. There is accordingly no competent, substantial evidence to support the speculative conclusions, supra, that the appellant was capable of some minimal part-time work.
Additionally, we note that neither the order nor the record indicates that any specific issue was raised or resolved as to merger or apportionment of disability, although the order refers to appellant’s preexisting congenital hip and leg condition. The employer claimed and the judge awarded an offset pursuant to § 440.15 5(c), Florida Statutes (1978), for compensation paid for appellant’s impairment due to a previous industrial accident, but our disposition of the appeal in favor of appellant’s claim for permanent total disability on this record will require rejection of that offset because the provision in terms applies only to successive awards for permanent partial disability. Galt Ocean Mile Hotel v. Burton, IRC Order 2 — 2955, cert. dismissed, 336 So. 2d 600 (Fla.1976).
We conclude for reasons above stated that the denial of permanent total disability benefits in this case was erroneous. Kaplan v. Lowry Electric Company, 293 So. 2d 348 (Fla.1974). The order dated May 22, 1979, is reversed and this cause is remanded for the entry of a further order on the merits consistent with this opinion.
SHAW and WENTWORTH, JJ., concur. BOOTH, J., dissents.
BOOTH, Judge,
dissenting.
I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, Case No. QQ-76, Opinion filed December 27, 1979 (Fla. 1st DCA).
On the merits, I would concur in the majority’s opinion.
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Drummond v. Plumbing Corp. OF Am. & R.P. Hewitt & Assocs., 428 So. 2d 741 (Fla. 1st DCA 1983)…a v. Gautier, 133 So. 2d 732 (Fla.1961). Accordingly, the burden therefore shifted to the employer to show that suitable work was, in fact, available. Mahler v. Lauderdale Lakes National Bank, 322 So. 2d 507 (Fla.1975); Leight v. Aladdin Moving Co., 381 So. 2d 258 (Fla. 1st DCA 1980). The employer failed to present competent, substantial evidence of available employment suitable for the claimant. Its own specially-created job is unsuitable by the very fact that it requires a seventy-minute drive, a trip which…
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Fla. Coll. & Aetna Cas. & Sur. Co. v. Arlin Wilsher, Sr., 410 So. 2d 969 (Fla. 1st DCA 1982)…e. . Application of § 440.15(5)(c), Florida Statutes (1977), would be improper, because that sub-section is applicable to cases involving successive injuries causing a claimant to be permanently and partially disabled. Leight v. Aladdin Moving Co., 381 So. 2d 258, 260 (Fla. 1st DCA 1980). . An unambiguous statute must be accorded its plain and ordinary meaning. Rowe v. State, 394 So. 2d 1059 at 1059 (Fla. 1st DCA 1981); Carson v. Miller, 370 So. 2d 10, 11 (Fla.1979); 30 Fla.Jur. Statutes § 87 (1974). . Pro…
Authorities Cited
- Mahler v. Lauderdale Lakes Nat'l Bank, 322 So. 2d 507 (Fla. 1975)
- Burns v. City OF Fort Lauderdale, 133 So. 2d 732 (Fla. 1961)
- Kaplan v. Lowry Elec. Co., Inc., 293 So. 2d 348 (Fla. 1974)