HARPER PLUMBING & HEATING AND HEWITT, COLEMAN & ASSOCIATES, INC., APPELLANTS,
v.
THOMAS BOYD, APPELLEE

Fla. 1st DCA | 1982-08-18
No. AI-421
MILLS, BOOTH and THOMPSON, JJ., concur.
418 So. 2d 396 Florida District Court of Appeal, First District (1982) Caution
Cited by 14 cases

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Synopsis

An employer/carrier appealed a workers' compensation award of temporary partial and total disability benefits to an injured worker, challenging the deputy's finding that the worker did not voluntarily limit his income. The Florida appellate court reversed, holding that the worker's subjective complaints of pain without medical evidence were insufficient to support the finding, and that the employer's initial assessment was reasonable and did not constitute bad faith.


Holding

The court reversed the deputy's findings on both issues. The claimant's bare complaints of continued pain and inability to work, unsupported by medical evidence, were insufficient to meet the evidentiary standard because the inability was not readily observable. The employer/carrier's conclusion that the claimant was voluntarily limiting income was reasonable under the circumstances, and the absence of bad faith precluded an award of attorney's fees.


Headnotes

[1] A claimant's testimony of continued pain is insufficient, in itself, to establish an inability to work when such inability is not readily observable or does not require m…

[2] A finding that a claimant did not voluntarily limit income is not supported by competent substantial evidence when it fails to reject uncontroverted medical testimony reg…

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Key Quotes

“a claimant's "bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable" and is insufficient in itself”

Establishes the evidentiary standard that subjective pain complaints without medical evidence cannot support a finding when the injury is not readily observable

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Facts & Procedural History

The claimant suffered an industrial accident on June 20, 1980. The employer obtained a night watchman position for him paying $5.00 per hour requiring…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding temporary partial and total disability benefits resulting from an industrial accident of June 20, 1980, and finding claimant entitled to a reasonable attorney’s fee and costs. The employer/carrier contends that the deputy’s finding that claimant did not voluntarily limit his income pursuant to Section 440.15(4)(b), Florida Statutes, is not supported by competent substantial evidence, and that the deputy further erred in finding claimant’s attorney entitled to a fee. We reverse.

The deputy may rely on the claimant’s account of his ability to work when this issue “does not require medical expertise but rather lies within the actual knowledge of the claimant or is readily observable by lay people.” However, a claimant’s “bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable” and is insufficient in itself. Lindsley Homecare Centers v. Fuster, 413 So. 2d 810, 811 (Fla. 1st DCA 1982).

See also Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981).

Here, as the claimed inability to work was not readily observable, claimant’s testimony that he did not feel capable of working his scheduled hours was insufficient. The order failed to specify any reason for rejecting the uncontroverted testimony of claimant’s physicians that he was “more than capable” of performing light work as a night watchman.1 Therefore, the deputy’s finding that claimant did not voluntarily limit his income pursuant to Section 440.-15(4)(b), Florida Statutes, is not supported by competent substantial evidence and must be reversed. The cause is remanded for a determination of claimant’s temporary partial disability benefits based on the wages he would have earned as a night watchman had he not voluntarily limited the hours he worked.

The deputy’s finding that the employer/carrier acted in bad faith in computing claimant’s temporary partial disability benefits is also unsupported by competent substantial evidence. The servicing agent’s conclusion that claimant was voluntarily limiting his income by working fewer hours was reasonable under the circumstances of this case. Where reasonable excuse exists for the nonpayment of benefits, an award of attorney’s fees on the basis of bad faith is not proper simply because the deputy disagrees with the employer/carrier’s assessment of claimant’s condition and later determines that benefits should have been paid. Walt Disney World Company v. May, 397 So. 2d 1003 (Fla. 1st DCA 1981).

Therefore, the deputy’s finding of bad faith and of the claimant’s entitlement to an attorney’s fee is reversed.

REVERSED and REMANDED for proceedings in accordance with this opinion.

MILLS, BOOTH and THOMPSON, JJ., concur. . The employer/carrier obtained the job as a night watchman for claimant, paying $5.00 per hour. The position required an average of approximately 30 hours work per week and involved no climbing, lifting, bending, or walking over rough terrain. The claimant’s duty was to walk around property the approximate size of a football field at irregular intervals and to punch in on two clocks. When not walking, he remained in an enclosure which was lighted and heated, and was provided with a chair to enable him to sit or stand as he desired. Dr. madison, claimant’s treating orthopedic surgeon, stated that claimant was “more than capable” of performing this job, and there is no medical evidence whatsoever that the position exceeded claimant’s physical restrictions.

Nevertheless, after approximately one month on the job, claimant began to miss work, and conceded that he sometimes left the premises unsecured without contacting supervisors to advise he was leaving. After repeated warnings, claimant was eventually terminated for excessive absenteeism.


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Citator

Cited By

  • Storage Tech. Corp. & Travelers Ins. Co. v. Philbrook, 448 So. 2d 42 (Fla. 1st DCA 1984)
    …e claimant did unsuccessfully attempt employment, and her testimony as to those facts is sufficient to sustain the compensation award. To the extent that Kyle v. Davis, 435 So. 2d 918 (Fla. 1st DCA 1983), and Harper [*45] Plumbing & Heating v. Boyd, 418 So. 2d 396 (Fla. 1st DCA 1982), suggest a contrary result, those opinions do not address the rationale of the decisions above noted. In the present case, unlike Harper and Kyle, the deputy specified his reasons for rejecting the physician’s testimony as to wor…
  • Buena Vista Palace & Adjustco, Inc. v. Lopez, 557 So. 2d 948 (Fla. 1st DCA 1990)
    …imately six hours a day. He also stated that he believed claimant could do light work on an uninterrupted basis. Dr. Gomez’s testimony alone does not support a PTD award. See Ronald Allen Trucking Company, supra; Harper Plumbing and Heating v. Boyd, 418 So. 2d 396, 397 (Fla. 1st DCA 1982) (the court reversed the PTD benefits award because claimant’s physicians stated that claimant was more than capable of performing light work); cf. Seligman & Latz, Inc. v. Panell, 530 So. 2d 1032 (Fla. 1st DCA 1988) (one doc…
  • Arc Kyle & CNA Ins. Grp. v. Davis, 435 So. 2d 918 (Fla. 1st DCA 1983)
    …abilitation and due reimbursement for costs incurred in obtaining the awarded benefits. Wage-loss benefits are not award-able when a claimant has voluntarily limited his income. Section 440.15, Florida Statutes, Harper Plumbing and Heating v. Boyd, 418 So. 2d 396 (Fla. 1st DCA 1982), and Paul Lawhon Plumbing Co. v. Cave, 427 So. 2d 1093 (Fla. 1st DCA 1983). A claimant’s “bare complaints of continued pain so that the claimant feels unable to work” is not a condition that is “readily observable by lay people.”…

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