WEST COAST INSULATION AND ZURICH AMERICAN INSURANCE COMPANY IN CARE OF ATLAS GENERAL AGENCY, APPELLANTS,
v.
ROBERT E. LEE, APPELLEE
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The court held that a deputy commissioner may find permanent total disability based on a claimant's apparent discomfort, unsuccessful job search, and surgical history, even without extensive medical evidence of anatomical impairment.
[1] A deputy commissioner in a workers' compensation case may consider a claimant's fruitless job search, multiple surgeries with unfavorable results, and apparent discomfort…
[2] Appellate courts will not retry factual issues at the appellate level and substitute their judgment for that of the deputy commissioner when factual findings are supporte…
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Join FLexlaw to unlock all legal intelligenceLee, injured in a compensable accident, underwent two surgeries with poor results and complained of continuous pain. Despite medical testimony suggest…
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JOANOS, Judge.
Employer and carrier appeal from a workers’ compensation order in which the deputy commissioner found Lee to be permanently, totally disabled based upon his observation of Lee’s apparent discomfort, the history of two surgical procedures with less than favorable results and Lee’s showing his unemployability by a fruitless fifteen-month job search. We affirm.
Lee, forty-five years old with a ninth grade education, suffered a compensable back injury when he fell from a stack of drywall on 12 August 1981. Two surgeries were performed in August and November 1981, after which his physician told him nothing more could be done. Temporary total disability was paid until January, 1983, when the employer and carrier began paying wage loss. Lee conducted an extensive, but fruitless, job search from January, 1983 to March, 1984. While medical testimony reflected that Lee was legitimately disabled, ranging from 10-20% permanent partial disability, the deputy commissioner noted the lack of medical evidence to support a finding of PTD based upon an anatomical impairment. Lee complained of continuous pain, a burning sensation in his back, headaches and trouble sleeping. The deputy commissioner found that Lee was permanently, totally disabled due to the consequences of the industrial accident and had proven himself unemployable by his lengthy, unsuccessful work search.
It is beyond our province to “retry the claim at the appellate level and substitute our judgment for that of the deputy on factual issues supported by competent, substantial evidence_” Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983). The deputy could properly consider Lee’s futile work search, multiple surgeries with less than favorable results and apparent discomfort to determine the factual issue of his ability to engage in light work and conclude that Lee is PTD. See, H.S. Camp & Sons v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984). As in Flynn, we find no reason to disturb the deputy’s conclusion on the factual issue.
Accordingly, the order is affirmed.
MILLS and BARFIELD, JJ., concur.
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Lerman v. Broward Cnty. Bd. OF Cnty. Comm'rs & Risk Mgmt. Div., 555 So. 2d 419 (Fla. 1st DCA 1989)…bility. H.S. Camp & Sons v. Flynn, 450 So. 2d 577, 579 (Fla. 1st DCA 1984). See also Oak Construction Co. v. Jackson, 522 So. 2d 1068, 1071 (Fla. 1st DCA 1988); Holiday Inn v. Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986); West Coast Insulation v. Lee, 464 So. 2d 1317, 1318 (Fla. 1st DCA 1985). It is well settled that it is the employer/carrier’s responsibility to apprise [*423] the claimant of his possible entitlement to benefits and his duty to conduct a work search. § 440.185(10), Fla.Stat. (1985). Therefore,…
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Davis v. Bonded Transp., Inc., 573 So. 2d 373 (Fla. 1st DCA 1991)…t DCA 1990); Oak Construction Company v. Jackson, 522 So. 2d 1068 (Fla. 1st DCA 1988); Bill’s Equipment and Rentals v. Teel, 498 So. 2d 536 (Fla. 1st DCA 1986); Holiday Inn v. Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986); West Coast Insulation v. Lee, 464 So. 2d 1317, 1318 (Fla. 1st DCA 1985). The medical evidence in the instant case indicates that although claimant has a seventeen to twenty percent permanent impairment of the body as a whole, his physicians consider him physically capable of working at a light…
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Southland Corp. & Kemper Ins. Grp. v. Hunt, 465 So. 2d 1329 (Fla. 1st DCA 1985)…Flynn, the claimant’s work search, particularly in view of his education and experience,2 did not permit “a conclusion that [*1330] continued search is futile until changed conditions can be shown.” Id. at 579. See also West Coast Insulation v. Lee, 464 So. 2d 1317 (Fla. 1st DCA 1985) (award of PTD affirmed where claimant “had proven himself unemployable by his lengthy, unsuccessful work search” conducted over a period of 15 months). Accordingly, the order awarding permanent total disability benefits is rever…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Swanigan v. Dobbs House & Am. Motorists Ins. Co., 442 So. 2d 1026 (Fla. 1st DCA 1983)
- H.S. Camp & Sons & Am. Mut. Ins. Co. v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984)