A.D. BUILDERS, INC. AND GENERAL ACCIDENT INSURANCE COMPANY, APPELLANTS,
v.
GREGORY JOHNSTON, APPELLEE

Fla. 1st DCA | 1988-07-08
No. 87-1933
MILLS and WIGGINTON, JJ., concur.
528 So. 2d 1225 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 5 cases

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Holding

The court held that the deputy commissioner's finding that the claimant's disability substantially impaired his capacity to earn pre-injury wages was not supported by competent substantial evidence, thus reversing the award of rehabilitation benefits.


Headnotes

[1] An award of rehabilitation benefits requires competent substantial evidence that the claimant's injury will preclude them from earning wages equal to those earned prior t…

[2] A claimant's subjective desire for rehabilitation services, without supporting vocational or medical expert testimony, is insufficient to establish entitlement to rehabil…

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Facts & Procedural History

Claimant suffered a compensable injury, reaching maximum medical improvement with a permanent impairment. Claimant expressed a desire for rehabilitati…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier (E/C) appeal the final order of the deputy commissioner (DC) authorizing claimant’s request for future medical care with Dr. Ross and granting claimant’s request for rehabilitation benefits. Claimant cross-appeals the DC’s calculation of claimant’s average weekly wage and the DC’s award of temporary partial disability and temporary total disability benefits. Upon review of the record below, we reverse that portion of the DC’s order awarding rehabilitation benefits and affirm the DC’s order as to the remaining points on appeal.

On August 18, 1986, claimant suffered a compensable injury when he stepped on a nail at work. Claimant developed an infection of the right big toe and subsequently developed arthritis and osteomyelitis secondary to the infection. Claimant reached maximum medical improvement on July 20, 1987, with a permanent impairment of 4% of the body as a whole based on the Ameri-can Medical Association’s Guide to Permanent Physical Impairment.

Prior to his injury, claimant worked as a carpenter for an hourly wage of $9.00 an hour. Subsequent to his injury, however, claimant was told by his doctors that a return to his trade as a carpenter was “out of the question.” Claimant personally felt that he would not be able to go back to work because he could not lift heavy weights. He testified that he had been employed as a paramedic and a fireman in the past but that he felt those occupations were “ruled out now, I can’t do that.” Claimant indicated that he would like rehabilitation assistance including vocational testing and whatever might be appropriate. However, claimant presented no testimony from a vocational consultant or medical expert regarding his request for rehabilitation.

A hearing on claimant’s claim for benefits was held before the DC on October 28, 1987. On November 23, 1987, the DC entered an order granting claimant’s request for rehabilitation benefits as follows:

I find that the claimant’s injury and resulting disability have substantially impaired his capacity to earn pre-injury wages and that he is entitled to rehabilitation benefits as requested with Jerry Adato.

Section 440.49(l)(a), Florida Statutes (1986) states as follows:

When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.

In the instant 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 specific type of vocational rehabilitation. Additionally, this court noted that the claimant’s physician assigned the claimant a 25% impairment rating, prohibited the claimant from lifting more than 30 pounds, and recommended that the claimant receive vocational training. In Norris, the claimant presented testimony from a rehabilitation nurse and a rehabilitation counselor recommending that the claimant be retrained in order to secure employment paying wages comparable to those he received under his prior earning capacity.

In the instant case, claimant does not indicate that his disability would preclude him from securing emloyment paying at least $9.00 an hour (claimant’s pre-injury wage). Additionally, the DC was presented with no medical evidence indicating that claimant should undergo vocational rehabilitation. The record reveals no testimony in this regard other than claimant’s assertion that he would like to be rehabilitated. Because there is no evidence in the record that could support a finding that claimant has suffered an injury that would preclude him from earning wages equal to the wages he earned prior to the injury, the portion of the DC’s order awarding rehabilitation benefits is reversed. Dimirra Development, Inc. v. Mills, 501 So. 2d 63 (Fla. 1st DCA 1987). The remainder of the order is affirmed.

AFFIRMED in part, and REVERSED in part.

MILLS and WIGGINTON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kash 'N Karry & Crawford & Co. v. Wallace, 553 So. 2d 222 (Fla. 1st DCA 1989)
    …-injury employment status, and the deputy made no finding that computer training was necessary to achieve the claimant’s pre-injury wage. See Dimirra Development, Inc. v. Mills, 501 So. 2d 63 (Fla. 1st DCA 1987), and A.D. Builders, Inc. v. Johnston, 528 So. 2d 1225 (Fla. 1st DCA 1988). Therefore, whether the award is deemed rehabilitation benefits or a lump sum advance, it is inappropriate. Accordingly, the order below is REVERSED in its entirety. SHIVERS and BARFIELD, JJ., concur.…
  • Hillsborough Cnty. Sch. Bd. v. Brown, 573 So. 2d 871 (Fla. 1st DCA 1990)
    …habilitation benefits, a claimant must offer competent substantial evidence that her compensable injury prevents her from earning wages equal to those earned prior to the injury. See § 440.49(1)(a), Fla.Stat. (1987); A.D. Builders, Inc. v. Johnston, 528 So. 2d 1225 (Fla. 1st DCA 1988). In the instant case, claimant was able to return to work for employ [*872] er and did not require rehabilitation to achieve her pre-injury wage; thus, the award of rehabilitation benefits was improper. Furthermore, we are direct…
  • Pitts v. State, 272 So. 3d 463 (Fla. 3d DCA 2019)
    …e-injury employment status, and the deputy made no finding that computer training was necessary to achieve the claimant’s pre-injury wage. See Dimirra Development, Inc. v. Mills, 501 So.2d 63 (Fla. 1st DCA 1987), and A.D. Builders, Inc. v. Johnston, 528 So.2d 1225 (Fla. 1st DCA 1988). Therefore, whether the award is deemed rehabilitation benefits or a lump sum advance, it is inappropriate. Accordingly, the order below is REVERSED in its entirety. SHIVERS and BARFIELD, JJ., concur.…

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