ARTHUR FULMER-ORLANDO AND KENT INSURANCE CO., APPELLANTS,
v.
ERNEST L. TAYLOR, APPELLEE
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In this workers' compensation appeal, the Florida First District Court of Appeal affirmed an award of temporary total disability benefits to an injured worker for the period from October 1980 to May 1981, rejecting the employer/carrier's argument that the claimant's failure to seek work during that period precluded benefits.
The court affirmed the award of temporary total disability benefits. The claimant's failure to seek work cannot logically support a reversal of benefits in the absence of evidence that he knew or should have known he was released for that purpose, particularly when the treating physician's testimony regarding possible light work was equivocal and the medical record did not indicate a release for work until May 1981.
[1] A workers' compensation claimant's failure to seek work does not preclude temporary total disability benefits when there is no evidence that the claimant knew or should h…
[2] A claimant's subjective testimony of constant severe pain and functional limitations, if uncontradicted by medical evidence, can support a finding of temporary total disa…
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Join FLexlaw to unlock all legal intelligence“a reversal of benefits here cannot logically rest on his failure to seek work in the absence of any evidence that he knew or should have known that he was released for that purpose”
Establishes the core holding that the claimant's lack of work search efforts cannot defeat a temporary disability award without proof he knew he was cleared to work.
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Join FLexlaw to unlock all legal intelligenceIn July 1980, the claimant sustained a low back injury when he fell while carrying heavy upholstery material. His treating physician initially determi…
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WENTWORTH, Judge.
Employer/carrier appeal a workers’ compensation order awarding temporary total disability benefits from October 1980 to May 1981, based on a hearing completed in December 1981. We affirm.
In July 1980 claimant sustained an industrial accident resulting in a low back injury when he fell while carrying heavy upholstery material. Claimant’s treating physician determined that he was temporarily totally disabled, and benefits were paid until October 1980. Claimant did not attain maximum medical improvement until May 1981, following hospitalization for myelog-raphy in March 1981. Employer/carrier contend that work search deficiencies preclude the award of temporary total disability benefits between October 1980 and May 1981.
Claimant’s treating physician testified that, while he had concluded that claimant could not return to the employment in which the injury occurred, he had “probably encouraged” claimant to find light work in October. Although claimant’s employment history was varied and the circumstances would ordinarily dictate diligent attempts at other work if he had been so advised, neither the doctor’s office notes nor any other part of the record to which we are referred indicates that claimant was released or informed that he could return to work until May of 1981. The equivocal nature of the doctor’s quoted testimony does not, in the context of this record, require that the deputy find otherwise. Even assuming direct retrospective testimony that claimant was able to undertake some light employment as early as October of 1980, a reversal of benefits here cannot logically rest on his failure to seek work in the absence of any evidence that he knew or should have known that he was released for that purpose.
In addition, claimant described his condition during this period as one of constant severe pain in his low back and buttocks, with numbness in his lower legs. Claimant further testified without medical contradiction that he could not walk any considerable distance without pain,, could not sit for prolonged periods, was not able to lift, to bend repetitively, and was generally unable to function normally. Refusing to accept this as a permanent condition, claimant underwent a myelogram in March of 1981. Although the record supports the determination of MMI on May 13, 1981, the date to which temporary benefits were awarded, we note the fact of continued medical care including strongly recommended psychiatric evaluation.
Employer/carrier also challenge the sufficiency of the evidence to support the deputy’s finding of a permanent impairment. However, the order states that the issue of wage loss was not presented and awards no permanent compensation benefits. The order on this point is therefore not subject to review in this appeal of the award of temporary disability compensation. The Wash House v. Tucker, 413 So. 2d 813 (Fla. 1st DCA 1982).
Affirmed.
BOOTH and WIGGINTON, JJ„ concur.
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Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)…conform to strict modification of activities with bed rest at home and heat application.” There is no evidence in this record that claimant at any time was told to go back to work or otherwise released for that purpose. In Fulmer-Orlando v. Taylor, 419 So. 2d 734 (Fla. 1st DCA 1982), this court stated; Although claimant’s employment history was varied and the circumstances would ordinarily dictate diligent attempts at other work if he had been so advised, neither the doctor’s office notes nor any other part…
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Lakeland Constr. Co. & INA/Esis v. Flatt, 433 So. 2d 1253 (Fla. 1st DCA 1983)…82, and July 22, 1982, the date of the hearing, the testimony of claimant is uncon-tradicted that none of his doctors or anyone else told him that he was able to work. This period of time, therefore, falls under the rule of Fulmer-Orlando v. Taylor, 419 So. 2d 734 (Fla. 1st DCA 1982), where this court stated: Even assuming direct retrospective testimony that claimant was able to undertake some light employment as early as October of 1980, a reversal of benefits [TTD] here cannot logically rest on his failure…
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Charles v. Suwannee Swifty and Associated Risk, 622 So. 2d 114 (Fla. 1st DCA 1993)…porary total disability benefits for the period in question, Croft v. Donna Jean Packing Company, 579 So. 2d 146 (Fla. 1st DCA 1991), even assuming retrospective testimony that claimant could have worked during this period. Fulmer-Orlando v. Taylor, 419 So. 2d 734 (Fla. 1st DCA 1982). Therefore, the order of the JCC denying temporary total disability benefits from December 14, 1990, through September 16, 1991, is hereby reversed, and the cause is remanded, for further proceedings to award the requested bene…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Wash House & S.C. Ins. Co. v. Tucker, 413 So. 2d 813 (Fla. 1st DCA 1982)