ROBERT MUSGRAVE, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION AND DIVISION OF RISK MANAGEMENT, APPELLEES

Fla. 1st DCA | 1985-04-11
No. AZ-5
JOANOS and BARFIELD, JJ., concur.
466 So. 2d 1238 Florida District Court of Appeal, First District (1985) Negative Treatment
Cited by 6 cases

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Synopsis

In this workers' compensation appeal, Musgrave challenged the deputy commissioner's finding that he reached maximum medical improvement (MMI) and was therefore ineligible for temporary disability benefits. The court affirmed, holding that MMI was properly established and that Musgrave's job search was inadequate to support a claim for temporary benefits.


Holding

The court affirmed the deputy commissioner's finding of MMI, rejecting Musgrave's arguments that the doctor's determination was retrospective and that palliative physical therapy treatments demonstrated ongoing recovery. The court also affirmed the finding that Musgrave's job search was inadequate, as he contacted only three potential employers over four months and failed to demonstrate that his limited search efforts were unsuccessful due to the light duty restriction rather than lack of diligent effort.


Headnotes

[1] Temporary disability benefits are not awarded when a claimant fails to conduct a good faith work search.

[2] Physical therapy treatments prescribed for palliative purposes do not preclude a finding of maximum medical improvement, even if they result in some improvement.

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Key Quotes

“temporary disability continues as long as recovery or lasting improvement in the injured person's condition can reasonably be expected”

Establishes the legal standard for temporary disability in workers' compensation cases; cited from Corral v. McCrory Corp.

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Facts & Procedural History

Musgrave suffered a compensable neck and back injury on July 27, 1982, and underwent fusion surgery performed by Dr. Woolsey. On November 28, 1983, Dr…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

In this workers’ compensation action, Musgrave appeals from an order denying temporary disability and medical benefits. He contends that the deputy commissioner was in error when he found maximum medical improvement (MMI) had been reached and the work search he conducted was inadequate. We disagree and affirm.

Musgrave suffered a compensable injury to his neck and back on 27 July 1982. He was treated by Dr. Woolsey, who performed a fusion.

Dr. Woolsey testified that on 28 November 1983, Musgrave was advised that he had reached MMI and could return to light duty work in December. At this time, Musgrave was referred to Dr. Kurras for physical therapy treatments.

On 2 December 1983, Musgrave sought light duty work from his employer, however, he was informed that such work was currently unavailable. Following this, Musgrave made a limited attempt to procure alternative employment and finally resumed work on 21 March 1984, when a light duty position became open with the Department of Transportation.

Musgrave sought temporary partial or temporary total benefits for the period of 13 January 1984 through 21 March 1984. The deputy found that on 28 November 1983 Musgrave reached MMI and even if Musgrave had not reached MMI as of that date, the job search conducted by him was inadequate.

Musgrave presents two arguments in response to the deputy’s finding of MMI. First, Dr. Woolsey rendered MMI in retrospect. This contention was refuted by the doctor’s testimony and is not supported by the record.

Second, because the physical therapy treatments generated improvement in Musgrave’s condition, they must be regarded as curative in nature. For this contention, Musgrave relies on Corral v. McCrory Corp., 228 So. 2d 900 (Fla. 1st DCA 1969), in which we stated temporary disability continues as long as recovery or lasting improvement in the injured person’s condition can reasonably be expected. However, in this case we also opined that the nature of medical treatment as curative or palliative is not to be determined by the ultimate success or failure of the treatment. During the hearing, Dr. Woolsey testified that he had not anticipated much improvement in Musgrave’s condition from the physiotherapy sessions and had prescribed them for palliative purposes only. It is therefore irrelevant to the MMI determination that the treatments realized some success. Through these arguments, it cannot be said that Musgrave has made a clear showing of error on the part of the deputy. See, 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 three potential employers during essentially a four-month period. Notably, Musgrave applied to only one nursery despite his college background in landscape technology and horticulture. This work search cannot be deemed a good faith effort to find employment. Further, Mus-grave failed to present any evidence that his search was unsuccessful based on the restriction imposed by Dr. Woolsey of light duty employment, rather than unavailability of work, as required by Belle v. General Electric Co., 409 So. 2d 182 (Fla. 1st DCA 1982).

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Tampa Elec. Co. v. Bradshaw, 477 So. 2d 624 (Fla. 1st DCA 1985)
    …r prospective employers during the year after he reached maximum medical improvement, the deputy found that the claimant had made a good faith attempt to secure additional part-time employment. Citing Musgrave v. State, Department of Transportation, 466 So. 2d 1238 (Fla. 1st DCA 1985), the majority admits that the claimant did not make a good faith attempt to secure additional part-time employment, but excuses this failure by saying that he is working full time with his primary employer. If he is not required…
    1 / 2
  • Reinero Faife v. L. Luria & SON & Kemper Grp., 587 So. 2d 610 (Fla. 1st DCA 1991)
    …n of further recovery or lasting improvement. This evidence comports with the standard announced in Corral v. McCrory Corp., 228 So. 2d 900 (Fla.1969), for the attainment of maximum medical improvement. See also, Musgrave v. State, Dept. of Transp., 466 So. 2d 1238 (Fla. 1st DCA 1985). Both doctors also indicated that this was a prospective assessment which they made in April 1989. The employer/carrier’s failure to promptly obtain the opinions at that time does not negate the claimant’s attainment of maximum m…

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