BUTLER'S DAIRY AND WHITING NATIONAL SERVICES, INC., APPELLANTS,
v.
TERRY G. HONEYCUTT, APPELLEE

Fla. 1st DCA | 1984-06-07
No. AW-39
MILLS and WIGGINTON, JJ., concur.
452 So. 2d 120 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 4 cases

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Synopsis

In this workers' compensation appeal, the First District Court of Appeal affirmed an award of permanent and total disability benefits to a dairy worker who suffered a back injury when kicked by cows. The court rejected the employer's argument that a claimant must demonstrate 100% physical impairment to qualify for such benefits, holding instead that the relevant standard is whether the claimant is physically incapable of engaging in gainful employment, specifically unable to perform even light work uninterruptedly.


Holding

The court held that section 440.15(1)(b) does not require a claimant to demonstrate 100% physical disability to claim permanent and total disability benefits. Rather, the claimant must be physically incapable of engaging in gainful employment, specifically unable to uninterruptedly perform even light work due to physical limitation. Applying this standard, the claimant met his burden through competent, substantial evidence from his treating physician, a rehabilitation expert, and his own testimony.


Headnotes

[1] A claimant seeking permanent total disability benefits must establish that they are not able uninterruptedly to do even light work due to physical limitations.

[2] A claimant is not required to demonstrate 100% physical disability to be awarded permanent total disability benefits.

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Key Quotes

“section 440.15(l)(b) (1979) does not require, nor does Frank's Fine Meats mandate, that a claimant demonstrate that he or she is 100% physically disabled or physically broken and wrecked for all purposes except merely to live in order to claim permanent total disability benefits”

Establishes that the 100% impairment threshold is not a statutory or judicial requirement for permanent total disability benefits.

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Facts & Procedural History

Claimant injured his back on September 4, 1979, when kicked by cows while working as a dairyman. He underwent two unsuccessful back operations and ext…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order awarding the claimant permanent and total disability benefits. We affirm.

Claimant injured his back in a compensable accident on September 4, 1979, when he was kicked by a couple of cows while working for his employer as a dairyman. Since the date of his accident to the present, claimant has received extensive medical treatment, both physical, including two unsuccessful back operations, and psychiatric. Claimant’s treating physician since 1979 to the present, Dr. Robert Massam, opined that claimant is 30% permanently physically impaired as a result of his accident. Claimant’s treating psychiatrist, Dr. J.A. Cruz, who first came into contact with claimant after claimant tried to commit suicide, testified that claimant is five to ten percent permanently psyehiatrically impaired due to his accident. In addition, Dr. Massam opined that claimant is 100% permanently physically impaired from returning to his previous job, and that claimant is unable to return to the labor market. This opinion of Dr. Massam was not shared by Dr. Cruz, nor was it shared by Dr. Robert Pfaff, who conducted a one-time independent examination of claimant; Dr. Pfaff opining that claimant could perform such work as assembly work, bench work, office work, or sales, provided claimant received additional training.

In 1983, claimant filed claim for permanent and total disability benefits. At hearing, the above-mentioned medical opinions were introduced. Additionally, rehabilitation expert Karl Melcher, who conducted a three day vocational evaluation of claimant, testified that claimant would not be a good candidate for rehabilitation and that claimant could not perform light work uninterruptedly. Claimant testified that he experiences periodic pain, especially after prolonged periods of sitting or standing, and that he has been unable to find work after inquiring about jobs at numerous places.

In the order on review, the deputy found that claimant is permanently and totally disabled within the meaning of the statute. Specifically, the deputy found that claimant is substantially permanently disabled, both psyehiatrically and anatomically, and that claimant is unable to do even light work uninterruptedly. The employer/carrier contend that this order is error. We disagree.

In essence, the employer/carrier contend that since Dr. Massam assigned claimant a 30% anatomical impairment, as opposed apparently to a 100% impairment, the deputy was precluded from awarding claimant permanent and total disability benefits. The employer/carrier cite this court’s recent decision in Frank’s Fine Meats v. Sherman, 443 So. 2d 1055 (Fla. 1st DCA 1984), in support of their position. However, section 440.15(l)(b) (1979) does not require, nor does Frank’s Fine Meats mandate, that a claimant demonstrate that he or she is 100% physically disabled or physically broken and wrecked for all purposes except merely to live in order to claim permanent total disability benefits. See generally Port Everglades Terminal Co. v. Canty, 120 So. 2d 596, 600 (Fla.1960). Rather, the claimant must be physically incapable of engaging in gainful employ ment and the burden is on the claimant to “establish that he is not able uninterruptedly to do even light work due to physical limitation.” Applying this standard to the case at hand, we find and hold that the testimony of Dr. Massam, as corroborated by the testimonies of Karl Melcher and claimant, provide competent, substantial evidence that claimant is not able uninterruptedly to do even light work due to physical limitation. Accordingly, claimant is entitled to permanent and total disability benefits. Compare H.S. Camp & Sons v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984).

The order on appeal is AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


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Citator

Cited By

  • …Vocational expert testimony need not rely exclusively on first hand knowledge. See Heavy Constructors, Inc. v. Dericho, 259 So. 2d 489 (Fla.1972); Dental Arts Lab, Inc. v. Constantino, 531 So. 2d 999 (Fla. 1st DCA 1988); Butler’s Dairy v. Honeycutt, 452 So. 2d 120 (Fla. 1st DCA 1984); Drummond v. Plumbing Corp. of Am., 428 So. 2d 741 (Fla. 1st DCA 1983); contra Florida Div. of Corrections v. Morgan, 382 So. 2d 1288 (Fla. 1st DCA 1980).…
  • Ernie Haire Ford, Inc. v. Hamilton, 483 So. 2d 555 (Fla. 1st DCA 1986)
    …o do even light work uninterruptedly, and that his possible return to work is speculative and could only be in sheltered [*556] employment. Drummond v. Plumbing Corporation of America, 428 So. 2d 741 (Fla. 1st DCA 1983); Butler’s Dairy v. Honeycutt, 452 So. 2d 120 (Fla. 1st DCA 1984). Although claimant’s testing of the job market was minimal, considering his age, severe physical limitations, and his industrial history, his efforts at Ernie Haire Ford following the surgery and his “work” at the mini-warehouse…

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