JAMES B. ROSS, APPELLANT,
v.
J. E. HILL CONTRACTORS, APPELLEE

Fla. 1st DCA | 1982-03-08
No. AB-193
MILLS and THOMPSON, JJ., concur.
410 So. 2d 638 Florida District Court of Appeal, First District (1982) Positive Treatment
Cited by 2 cases

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Synopsis

An injured worker sought permanent total disability benefits after suffering a 5% permanent physical impairment. The deputy commissioner awarded only 50% permanent disability based on loss of wage earning capacity, but the appellate court found the factual findings regarding rehabilitation experts' testimony were contradicted by the record, requiring remand for redetermination.


Holding

The erroneous factual finding regarding the rehabilitation experts' testimony is vacated and the cause is remanded for redetermination. The deputy's findings as to what the experts testified were contradicted by the record, though credibility determinations regarding subjective pain complaints remain within the deputy's province and could support denial of permanent total disability on remand.


Headnotes

[1] A deputy commissioner's finding of diminished wage-earning capacity must be supported by competent substantial evidence.

[2] A deputy commissioner's finding based on erroneous factual conclusions regarding expert testimony is invalid.

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Key Quotes

“A review of the record shows that the testimony of the specified witnesses was contrary to that stated in the order. Without exception they testified that claimant was not employable in the current market in the area based on their observation of his physical and mental limitations.”

Establishes that the deputy commissioner's factual findings regarding expert testimony were contradicted by the actual record.

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Facts & Procedural History

Appellant was injured in a compensable workplace accident resulting in a 5% permanent physical impairment rating. He testified to continuing disabling…

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Appellant was injured in a compensable accident which resulted in a 5% permanent physical impairment rating by his treating physician. However, appellant testified to continuing disabling pain and the doctor indicated that such pain was not inconsistent with the injury in question. A claim was filed for permanent total disability, and after a hearing the deputy found that claimant suffered a 50% permanent disability based on loss of wage earning capacity.

In denying appellant’s claim for permanent total disability benefits the deputy commissioner made the following finding:

7. I find that the claimant has sustained a 50% diminution of wage earning capacity. I make this finding from the testimony of Murray Zolt, James Mack, Fred Collins, and John Green, rehabilitative experts, who even though they testified that they had been unable to obtain the claimant employment, they were of the opinion that there was employment available that the claimant could do in his present physical condition. I further make this finding from the fact that the claimant is employed with Goodwill Industries where he makes thirty five dollars a week and I realize that this is a sheltered employment situation, (e.s.)

A review of the record shows that the testimony of the specified witnesses was contrary to that stated in the order. Without exception they testified that claimant was not employable in the current market in the area based on their observation of his physical and mental limitations.

The employer/carriers’ position is that the denial of permanent total disability should be affirmed because we must assume that the deputy commissioner did not believe that appellant’s pain rendered him totally disabled. Therefore, they assert, the award is supported by competent substantial evidence.

The credibility of subjective complaints may of course affect a deputy’s determination of disability based on a claimant’s loss of earning capacity. Thus, the denial of permanent total disability compensation in this case might be affirmed if the order were so premised instead of being based on an erroneous finding as to the rehabilitation experts’ deposition testimony.

Since credibility determinations are beyond our appellate functions, the erroneous decretal portion of the order is vacated and the cause is remanded for redetermination consistent with this opinion on the existing record of claimant’s permanent disability. As to all other points raised in the appeal and cross-appeal the order is affirmed.

MILLS and THOMPSON, JJ., concur.


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Cited By

  • DON Facciobene, Inc. v. Hough Roofing, Inc., 225 So. 3d 323 (Fla. 5th DCA 2017)
    …to the expert witnesses as they were supported by competent, substantial evidence. See Flood v. Union Planters Bank, 878 So. 2d 407, 411 (Fla. 3d DCA 2004) (citing Iden v. Kasden, 609 So. 2d 54, 57 (Fla. 3d DCA 1992)); Ross v. J.E. Hill Contractors, 410 So. 2d 638 (Fla. 1st DCA 1982). . Final payment was due thirty days after the renovations’were completed.…

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