CARDINAL INDUSTRIES, INC., AND INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS,
v.
CLARENCE DAWKINS, APPELLEE

Fla. 1st DCA | 1981-01-16
No. QQ-426
MILLS, C. J., and BOOTH, J., concur.
392 So. 2d 368 Florida District Court of Appeal, First District (1981) Caution
Cited by 22 cases

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Synopsis

In this workers' compensation appeal, the Florida District Court of Appeal affirmed an award of temporary total disability benefits for a limited period but reversed awards for extended benefits and continuing medical care, holding that subjective complaints of pain without objective medical findings cannot support ongoing disability claims.


Holding

The court affirmed temporary total disability benefits through January 24, 1979, when medical treatment ended and no objective injuries were found, but reversed awards for continuing disability benefits and medical care beyond that date, holding that subjective pain complaints without medical evidence of disability cannot establish ongoing entitlement to workers' compensation benefits.


Headnotes

[1] Competent and substantial evidence supports a finding of temporary total disability benefits awarded for a period ending when a physician concludes, based on tests, that…

[2] A claimant's subjective complaints of pain alone are insufficient to establish entitlement to temporary total disability benefits or continuing medical treatment when no…

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Key Quotes

“Where there is no medical evidence that the claimant is totally disabled, total disability cannot be established merely by the claimant's testimony that he did not make an effort to work because he did not feel able to do so.”

Establishes the legal standard that subjective complaints without objective medical evidence are insufficient to support total disability claims

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Facts & Procedural History

Appellee sustained a work-related lower back strain in July 1978 and a second injury in November 1978 when he fell from a jack. After the November inj…

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Opinion of the Court
McCORD, Judge.

McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding certain temporary total disability benefits to appellee, ordering appellants to pay for continuing medical care for appellee and assessing attorney’s fees. Competent substantial evidence supports the Judge of Industrial Claims’ finding of temporary total disability from November 30, 1978, until January 24, 1979, and thus we affirm the benefits awarded therefor. However, as to the remaining temporary total disability benefits awarded and the award of continuing medical care, we reverse.

Appellee sustained a work-related injury in July 1978 when he strained a muscle in his lower back. He missed no work as a result of that injury and continued his work activities as usual, which included lifting heavy sheets of gypsum.

On November 7, 1978, he sustained another injury when he fell from a jack and landed on his hand and buttocks on a cement surface. Following that accident, he continued normal work activities for two weeks, after which time he consulted Dr. Williams, a family physician. Dr. Williams took x-rays but found nothing wrong with appellee, and referred appellee to Dr. Madison, an orthopedist, who first saw appellee in December 1978. Dr. Madison prescribed a corset for appellee as well as physical therapy but did not place any restrictions on appellee in regard to his back.

In January 1979, appellee was seen by Dr. Madison’s partner, Dr. Mackey. Dr. Mackey found no objective indication of back injury but, based on appellee’s subjective complaints, he prescribed a certain nerve treatment and physical therapy three times a week. Dr. Madison testified that during the time appellee was undergoing therapy, he was unable to work. He also testified that by January 24, 1979, he had performed all the appropriate tests and still found no objective findings of any back problems.

Consequently, he prescribed no further treatment. Another doctor, Dr. Stanford, began to see appellee in February 1979 and, after taking extensive tests, concluded that he could find no cause for appellee’s symptoms, and he had no treatment to offer.

At the hearing, appellee testified that he still suffers pain. He has not worked since December 11, 1978, and, at the time of the hearing in February 1979, he felt he was unable to work. The Judge of Industrial Claims concluded that appellee was temporarily totally disabled from November 30, 1978, the date he last worked for his employer, forward. He also ruled that appellants are responsible for payment of past and future medical bills incurred by appel-lee. Dr. Madison’s testimony is competent to establish that appellee was unable to work during the period of physical therapy, which ended January 24, 1979, when Dr. Madison concluded that, on the basis of many tests, appellee suffered no physical injury.

Thus, on the basis of Dr. Madison’s testimony, the evidence supports the finding of temporary total disability until that point in time.

Competent substantial evidence does not, however, support the Judge of Industrial Claim’s conclusion that appellee is entitled to further temporary total disability benefits and to continuing medical treatment. Of the three doctors testifying, none found residual problems with appel-lee’s back, and all three recommended no further treatment. The only testimony indicating temporary total disability and the need for continuing treatment was appel-lee’s own testimony. According to Action Pool Builders v. Grant, IRC Order 2-3743 (1979):

Where there is no medical evidence that the claimant is totally disabled, total disability cannot be established merely by the claimant’s testimony that he did not make an effort to work because he did not feel able to do so. Under such circumstances, a claimant is required to make an effort to return to gainful employment. Martin Marietta Corporation v. Johnson, 7 PCR 355 (1973), cert. denied, 283 So. 2d 557 (Fla. 1973).

Therefore, the award of temporary total disability benefits beyond January 24,1979, and the award of continuing medical treatment are reversed.

As to the award of attorney’s fees, we remand for reassessment in light of the reduction of benefits awarded as a result of this opinion.

Affirmed in part, reversed in part, and remanded for reassessment of attorney’s fees.

MILLS, C. J., and BOOTH, J., concur.


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Citator

Cited By (11 total)

  • …. See Commercial Carrier Corp. v. Bennett, note 2, supra, involving a six month period after claimant’s release for work, without evidence that he sought either further medical attention or return to employment; Cardinal Industries, Inc. v. Dawkins, 392 So. 2d 368 (Fla. 1st DCA 1981), involving impropriety of continued temporary total disability compensation for simple complaints of pain when claimant failed to follow recommendations by three treating physicians that he should attempt to return to work; note…
  • Fair-Way Rest. & Aetna Ins. Co. v. Fair, 425 So. 2d 115 (Fla. 1st DCA 1982)
    …excuse lack of work effort, by the fact that it involved a six-month period after the claimant’s release for work, without evidence that he had sought either further medical attention or a return to employment; Cardinal Industries, Inc. v. Dawkins, 392 So. 2d 368 (Fla. 1st DCA 1981), by the fact that there the claimant failed to follow recommendations by three treating physicians that he should attempt to return to work; Walter Glades Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981), by the fact tha…
  • Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)
    …981). The claimant made no work search and the medical testimony indicated that claimant was able to work. The claimant’s testimony that he was unable to work is insufficient to establish his entitlement to TTD. Cardinal Industries, Inc. v. Dawkins, 392 So. 2d 368 (Fla. 1st DCA 1981). Therefore the award of TTD benefits from February 8, 1980 to March 26, 1980 is reversed. Although he reached MMI on July 23, 1980, and was told that he could return to work without limitations as of that date, the claimant soug…

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