LARRY TOWNE, APPELLANT,
v.
BATES FILE COMPANY AND WAUSAU INSURANCE COMPANY, APPELLEES
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Larry Towne appealed a workers' compensation order denying his claim for vocational rehabilitation training as a casino gaming dealer. The court reversed, holding that the employer's failure to respond to his rehabilitation request, combined with his documented need and medical support for retraining, entitled him to rehabilitation benefits.
The court held that the deputy commissioner erred in denying the rehabilitation claim. A prior formal request to the Division for evaluation is not a prerequisite to rehabilitation awards, and the employer's knowledge of the claimant's need and desire for rehabilitation, combined with its failure to respond or present alternatives, supports granting the claim.
[1] A prior request to the Division for evaluation of a claimant's need for rehabilitation is not an indispensable condition precedent to an award of rehabilitation.
[2] A claimant is not precluded from obtaining rehabilitation services independently of the employer and the Division, but does so at the risk of not persuading the deputy co…
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Join FLexlaw to unlock all legal intelligence“A prior request to the Division for evaluation of a claimant's need for rehabilitation is not an indispensable condition precedent to an award of rehabilitation.”
Establishes that formal prior evaluation requests are not required for rehabilitation awards
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Join FLexlaw to unlock all legal intelligenceTowne injured his back on August 14, 1984, while lifting a 55-gallon drum, aggravating prior back surgery. His treating physician, Dr. Maurer, assigne…
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WENTWORTH, Judge.
Appellant seeks review of a workers’ compensation order denying his claim for rehabilitation. He contends the deputy commissioner erred in denying the claim on grounds that appellant neither requested rehabilitation nor submitted a plan of rehabilitation for approval. We reverse.
Appellant on August 14, 1984 injured his back while employed by appellee Bates File Company when he lifted a 55-gallon drum, apparently aggravating the residuals of prior back surgery. The employer/carrier (e/c) provided medical care and temporary disability. Appellant’s authorized treating physician, Dr. Alan Maurer, assigned a 25% impairment rating, placed a 30-pound restriction on lifting, and recommended that appellant receive vocational training, stating that he believed appellant would not ever again be able to perform any job involving lifting.
Appellant in April 1985 moved to Las Vegas with the intention of re-enrolling in a professional casino gambling dealer’s school. He had attended the school from March to May 1984, when he completed one course and obtained a so-called “gaming card” necessary for employment as a dealer. At that time appellant had trained only in poker, and the gaming card he had obtained entitled him to deal only in poker. At the time of his move appellant had written to the e/c’s workers’ compensation claims manager, providing information about the school and the employment outlook for dealers on Florida-based cruise ships. He forwarded a March 1985 letter from Dr. Maurer in which the doctor stated that he supported appellant’s desire to retrain as a dealer, and that such work would be suitable for appellant’s physical limitations. Appellant requested the e/c to approve the retraining program. The e/c did not reply to the request.
On June 12, 1985 appellant filed a claim for rehabilitation under section 440.49, Florida Statutes, formally requesting the e/c to provide him with training through the dealer’s school in Las Vegas. In an October 1985 pretrial stipulation, the e/c claimed appellant already had received all Chapter 440 benefits to which he was entitled.
In his order, the deputy commissioner found insubstantial competent evidence to support the claim for rehabilitation, stating that appellant had not requested rehabilitation or submitted any plan of rehabilitation for approval. The record references hereinabove do not support the stated grounds for denying rehabilitation. A prior request to the Division for evaluation of a claimant’s need for rehabilitation is not an indispensable condition precedent to an award of rehabilitation. Hurricane Fence Industries v. Bozeman, 413 So. 2d 822 (Fla. 1st DCA 1982). In C & H Construction v. Leyman, 453 So. 2d 1163, 1164 (Fla. 1st DCA 1984), the court stated that “the claimant is not precluded from obtaining services independent of the employer and the Division, but when he does so he obtains those services at the risk he will not persuade the deputy commissioner that those particular services were necessary.” The court affirmed the order awarding rehabilitation, finding that the employer knew of the claimant’s desire and need for rehabilitation services for six months before the hearing, but did nothing until just before the hearing date.
In this case, appellant informed the e/c in April 1985 of his desire to receive vocational training at the dealer’s school. Aside from seeking information about the school, the e/c did not present alternatives or otherwise respond to the request until the October 1985 pretrial stipulation. Such evidence clearly reflects a “do nothing” approach to the request for rehabilitation training, in the face of awareness of appellant’s condition, his 25% permanent impairment rating, his restrictions on lifting, and Dr. Maurer’s recommendation that he receive rehabilitation. We conclude that the record and findings on the evidentiary facts provide no basis for rejection of the claim.
The order is therefore reversed and the cause remanded with directions that the claim be granted.
BOOTH, C.J., and MILLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Nickolls v. Univ. OF Fla. & Div. of Risk Mgmt., 606 So. 2d 410 (Fla. 1st DCA 1992)…t the employer is responsible for the reasonable and necessary expenses incurred independently by the employee. Hill v. Beverly Enters., 489 So. 2d 118, 120-21 (Fla. 1st DCA 1986). In the area of rehabilitation training, in Towne v. Bates File Co., 497 So. 2d 967 [*422] (Pla. 1st DCA 1986), this court reversed a deputy commissioner’s denial of a claim for rehabilitation benefits, observing that the claimant had informed the E/C of his desire to receive vocational training, and that aside from seeking informa…
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A.D. Builders, Inc. v. Johnston, 528 So. 2d 1225 (Fla. 1st DCA 1988)…tant case, the DC’s finding that claimant’s disability has substantially impaired his capacity to earn pre-injury wages is not supported by competent substantial evidence. The instant case can be contrasted with the cases of Towne v. Bates File Co., 497 So. 2d 967 (Fla. 1st DCA 1986) and Norris v. Ed Taylor Corp., 484 So. 2d 64 (Fla. 1st DCA 1986). In both cases, this court found that the claimants were entitled to rehabilitation benefits. In Towne, the evidence indicated that the claimant requested a specifi…
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Towne v. Bates File Co. & Wausau Ins. Cos., 532 So. 2d 65 (Fla. 1st DCA 1988)…SHIVERS, Judge. The claimant in this workers’ compensation case appeals an order entered by the deputy commissioner (DC) after remand by this court in Towne v. Bates File Company, 497 So. 2d 967 (Fla. 1st DCA 1986). We find it necessary to reverse and remand for further proceedings. The record on appeal establishes that the claimant sustained a compensable back injury in August of 1984 leaving him with a 25% impairment rating, restriction…
Authorities Cited
- C & H Constr. & Aetna Ins. Co. v. Leyman, 453 So. 2d 1163 (Fla. 1st DCA 1984)
- Lopez v. Fla. Parole & Prob. Comm'n, 413 So. 2d 822 (Fla. 1st DCA 1982)
- Select Int'l, Inc. v. Staples, 413 So. 2d 822 (Fla. 2d DCA 1982)