WILBRO DAIRIES AND FLORIDA FARM BUREAU INSURANCE COMPANIES, APPELLANTS,
v.
LEONARD HESCH, APPELLEE
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In this workers' compensation appeal, the First District Court of Appeal reversed in part and affirmed in part an order awarding temporary total disability benefits, wage loss benefits, and a penalty. The court found that the deputy commissioner erred in awarding TTD benefits for October 1-22, 1981, because there was no medical evidence of inability to work and no adequate good faith employment search.
The court reversed the award of TTD benefits for October 1-22, 1981, because there was no medical evidence of inability to work (Dr. Hooshmand actually instructed the claimant to return to work) and no adequate good faith employment search. The court also reversed the wage loss benefits for October 22-31, 1981, due to the absence of an adequate employment search for that calendar month. The court affirmed the penalty assessment, holding that entitlement to penalties was adequately raised in the claim for benefits and pretrial stipulation.
[1] An award of temporary total disability benefits requires medical evidence of an inability to work or a conscientious effort to return to work.
[2] An adequate good faith employment search cannot be established by testimony of looking for work without specifying the number of places visited or the names of businesses…
Previewing 2 of 4 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“At no time did Dr. Hooshmand place any restrictions on claimant or state that he was unable to work during this time period. In fact, Dr. Hooshmand told claimant to try to return to work when he first saw him on October 1, 1981.”
Establishes that the medical evidence did not support a finding of inability to work, which is essential for TTD benefits.
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Join FLexlaw to unlock all legal intelligenceThe claimant was treated by Dr. Hooshmand starting October 1, 1981. On that first visit, Dr. Hooshmand told the claimant to try to return to work and …
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JOANOS, Judge.
Having considered appellants’ motion for rehearing, we grant the motion in part and withdraw the decision and opinion filed August 10, 1983, substituting the following decision and opinion in lieu thereof.
In this workers’ compensation case, the employer/carrier (“E/C”) appeal an order awarding temporary total disability (“TTD”) benefits from October 1, 1981, through October 22, 1981; wage loss benefits from October 22, 1981, to March 2, 1982; and assessing a penalty on unpaid benefits.
We reverse in part and affirm in part. The deputy awarded TTD benefits from October 1, 1981, through October 22, 1981, based on a finding that claimant’s condition improved during that period of treatment with Dr. Hooshmand. E/C contends there was no medical evidence of inability to work during that time period and no evidence of a good faith employment search, thus the award of TTD was error.
We agree. Dr. Hooshmand saw claimant for the first time on October 1, 1981, and again on October 22,1981. At no time did Dr. Hooshmand place any restrictions on claimant or state that he was unable to work during this time period. In fact, Dr. Hooshmand told claimant to try to return to work when he first saw him on October 1, 1981. In addition, claimant’s testimony that he looked for work before November 5, 1981 (when he began keeping a list), but did not know how many places he may have gone to before that date, together with the failure to offer the names of any businesses where he inquired did not establish an adequate good faith employment search. See Conshor, Inc. v. Barnhart, 422 So. 2d 946 (Fla. 1st DCA 1982); Southern Medical, Inc. v. Osuna, IRC Order 2-3763 (April 12, 1979).
Absent medical evidence of inability to work or a conscientious effort to return to work, the award of TTD benefits was erroneous. See Walter Glades Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981).
Due to the absence of an adequate employment search for the calendar month of October, we also reverse the award of wage loss benefits from October 22 to October 31, 1981.
E/C next argues that there is no competent substantial evidence that claimant sustained a permanent impairment within the AMA Guides because, although Dr. Hooshmand stated he applied the Guides in determining a permanent impairment, his testimony showed that he actually did not apply the Guides. At no time was this argument raised before the deputy commissioner, therefore the issue has been waived. See Sunland Hospital v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982).
We reject E/C’s argument that the issue of penalties was not raised in accordance with the requirements of Section 440.-20(7), Florida Statutes. Entitlement to penalties was raised in the claim for benefits and in the pretrial stipulation. We hold that this satisfied the requirements of the statute.
REVERSED in part and AFFIRMED in part.
LARRY G. SMITH and NIMMONS, JJ., concur.
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Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)…es which deny TTD benefits in the absence of medical evidence showing an inability to work or a good faith work search involve situations where a claimant was explicitly released to work by one or more physicians. See, e.g., Wilbro Dairies v. Hesch, 438 So. 2d 968 (Fla. 1st DCA 1983); Fair-Way Restaurant v. Fair, 425 So. 2d 115 (Fla. 1st DCA 1982); Quality Petroleum Corp. v. Mihm, 424 So. 2d 112 (Fla. 1st DCA 1982); Commercial Carrier Corp. v. Bennett, supra; Walter Glades Condominium v. Morris, supra. We al…
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Musgrave v. State, 466 So. 2d 1238 (Fla. 1st DCA 1985)…Tampa Bay Moving Systems, Inc. v. Frederick, 433 So. 2d 628 (Fla. 1st DCA 1983). Absent medical evidence of inability to work, a'conscientious effort to locate employment is a prerequisite to an award of temporary benefits. Wilbro Dairies v. Hesch, 438 So. 2d 968 (Fla. 1st DCA 1983). Moreover, it is the claimant’s burden to produce competent substantial evidence of a good faith work search. Conshor, Inc. v. Barnhart, 422 So. 2d 946 (Fla. 1st DCA 1982). Musgrave’s job search consisted of contact with only th…
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Miller v. Farrens Tree Surgeons, Inc., 476 So. 2d 1387 (Fla. 1st DCA 1985)…Brothers, Inc., 436 So. 2d 1070, 1072 (Fla. 1st DCA 1983); and that a claimant must present medical evidence of an “inability to work or a conscientious effort to return to work” before there can be an award of TTD benefits. Wilbro Dairies v. Hesch, 438 So. 2d 968, 969 (Fla. 1st DCA 1983); Conshor, Inc., v. Barnhart, 422 So. 2d 946 (Fla. 1st DCA 1982). Nevertheless, as regards the denial of TTD benefits from January 2, 1984 to January 16, 1984, our examination of the record reflects that Dr. Oaklander’s relea…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)
- Walter Glades Condo. v. Petunia Morris, 393 So. 2d 664 (Fla. 1st DCA 1981)
- Conshor, Inc. v. Barnhart, 422 So. 2d 946 (Fla. 1st DCA 1982)