WILLIAM G. KENNEDY, APPELLANT,
v.
MARCONA OCEAN INDUSTRIES AND WAUSAU INSURANCE COMPANIES, APPELLEES

Fla. 1st DCA | 1984-06-13
No. AU-265
MILLS and WIGGINTON, JJ., concur.
451 So. 2d 530 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 4 cases

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Synopsis

In this workers' compensation case, a claimant injured his left arm and shoulder in 1979 and challenged the deputy commissioner's denial of permanent and total disability benefits. The court affirmed, finding the claimant failed to conduct a work search despite not being medically excused from doing so, and rejected his argument for penalties.


Holding

The claimant was not entitled to permanent and total disability benefits because he failed to conduct a work search and was not medically excused from doing so. Penalties under Florida Statutes § 440.20(5) are not applicable to payments of compensation for permanent disability, and the failure to award penalties was not properly raised as error within the required timeframe.


Headnotes

[1] A claimant seeking permanent and total disability benefits must conduct a work search unless medically excused from doing so.

[2] Sheltered employment does not necessarily preclude the requirement for a claimant to conduct a work search.

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Key Quotes

“we find evidence in the record that claimant is not obviously unable to perform even light work without interruption”

Establishes that the claimant did not meet the threshold for permanent and total disability, requiring a work search

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Facts & Procedural History

William Kennedy, a right-handed 60-year-old, sustained a compensable left arm and shoulder injury on January 8, 1979. After two initial surgeries, he …

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The claimant in this workers’ compensation case appeals the deputy commissioner’s order denying his claim for permanent and total disability benefits and the assessment of penalties on these benefits. We affirm.

Claimant, a right-handed individual, sixty (60) years of age, injured his left arm and shoulder in a compensable accident on January 8, 1979. After two initial surgeries on his shoulder, claimant returned to work in the Bahamas for the employer herein from April of 1979 until February of 1981. The claimant was then transferred to his employer’s office in Fort Lauderdale and continued to work there in an office job until January of 1983 when he was put on “sick leave” for six months. During this latter period of time, claimant underwent two unsuccessful total shoulder replacement operations in June of 1981 and May of 1982, respectively. At the time claimant left his job in January of 1983, he was earning $49,500 a year. Claimant’s salary has increased since returning to work for his employer in 1979.

On February 26, 1983, claimant filed claim for permanent and total disability benefits. At the hearing held on this matter, claimant testified that he has not looked for work since he was put on sick leave in January of 1983. Claimant also testified that the office job in Fort Lauder-dale was created for him by his employer, although he did perform some useful functions in this job. Claimant’s son testified that claimant mows the grass at his house with a power" lawn mower, that claimant cleans up around the house, and, that claimant can drive a car. Additionally, an insurance form filled out by one of claimant’s treating physicians in connection with claimant’s application for long term disability benefits was introduced into evidence. Claimant’s physician checked a box on this form indicating that claimant has severe limitation of functional capacity, incapable of minimal (sedentary) activity (75-100%).

In his order, the deputy found that claimant was not entitled to permanent and total disability benefits, since claimant failed to conduct a work search and claimant was not medically excused from conducting such a work search. We find competent, substantial evidence to support the deputy’s finding that claimant is not entitled to permanent total disability benefits, since we find evidence in the record that claimant is not obviously unable to perform even light work without interruption. See Lancaster Youth Development Ctr. v. Waters, 381 So. 2d 1156, 1159 (Fla. 1st DCA 1980). A work search by claimant, therefore, was required. Moreover, we find that claimant’s job with the employer herein was not sheltered employment, and even assuming it was sheltered employment to some extent, such would not preclude a work search under the facts of this case. See University of West Florida v. Nall, 404 So. 2d 381 (Fla. 1st DCA 1981).

As to claimant’s contention that he is entitled to penalties on the 60% permanent partial disability benefits awarded, or the permanent total disability that should have been awarded, the record reveals that the deputy’s failure to award penalties was never raised as error within the time available for correction. Section 440.25(4)(a), Florida Statutes (1978 Supp.); Mezquita v. Florida Steel Corp., 419 So. 2d 675 (Fla. 1st DCA 1982). Furthermore, penalties under section 440.20(5), Florida Statutes (1978 Supp.), are not applicable to payments of compensation for permanent disability. See Kuhle v. Kirk, 177 So. 2d 329 (Fla.1965). Accordingly, the deputy’s order is AFFIRMED in all respects.

MILLS and WIGGINTON, JJ., concur.


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Citator

Cited By

  • Holiday INN & Adjustco, Inc. v. Herschel Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986)
    …al restrictions against light work, H.S. Camp & Sons v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984), provided that a “lengthy, exhaustive job search, unsuccessful since the injury” was performed in its place. Camp; Kennedy v. Marcona Ocean Industries, 451 So. 2d 530, 531 (Fla. 1st DCA 1984); West Coast Insulation v. Lee, 464 So. 2d 1317, 1318 (Fla. 1st DCA 1985). It is undisputed that Sallee has looked for work continuously since the E/C discharged him and has, in fact, attempted numerous jobs in the “light wor…
  • City OF N. Miami v. Marcy, 630 So. 2d 601 (Fla. 1st DCA 1993)
    …rter, 413 So. 2d 865 (Fla. 1st DCA 1982) (reversing order assessing penalties against e/c, where claimant had waived entitlement by failing to claim penalties, and e/c were denied an opportunity to be heard). Cf. Kennedy v. Marcona Ocean Industries, 451 So. 2d 530 (Fla. 1st DCA 1984); Mezquita v. Florida Steel Corp., 419 So. 2d 675 (Fla. 1st DCA 1982) (affirming order that failed to adjudicate issue of claimant’s entitlement to interest and penalties, where such benefits were claimed in the pretrial stipulati…

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