RAYMOND SCOTT, APPELLANT,
v.
CONTAINER CORPORATION OF AMERICA AND FRED S. JAMES AND COMPANY OF FLORIDA, APPELLEES

Fla. 1st DCA | 1990-04-10
No. 89-639
BOOTH and NIMMONS, JJ., concur.
559 So. 2d 399 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Raymond Scott appealed a workers' compensation order denying all disability and wage loss benefits. The First District Court of Appeal reversed, finding the record did not support a finding that Scott reached maximum medical improvement without permanent impairment, and remanded for determination of his entitlement to temporary partial or permanent wage loss benefits.


Holding

The court reversed the order denying temporary total disability benefits for May-August 1987 and the entire claim for wage loss benefits. The court held that the medical evidence supported finding that Scott either had not reached maximum medical improvement or had reached it with some permanent impairment, and that the employer failed to show Scott was released for work or informed of his work search obligations. The case was remanded to determine whether Scott qualified for temporary partial or permanent wage loss benefits.


Headnotes

[1] An employer and carrier owe temporary total disability benefits for the period of May through August 1987 when acknowledged by the employer and carrier.

[2] A workers' compensation order denying an entire claim is not supported by the record when medical evidence indicates a need for retraining and a work reentry program.

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Key Quotes

“There is no basis for concluding that claimant has reached maximum medical improvement. This record contains no opinion from any doctor nor statement in any medical records that claimant has reached maximum medical improvement or that he has no permanent impairment, and the record does not support inference of either fact.”

Establishes the absence of medical evidence supporting the judge's implicit finding that Scott reached maximum medical improvement without impairment.

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Facts & Procedural History

Scott was injured and initially found temporarily totally disabled in a non-appealed June 1987 order, with employer and carrier ordered to pay tempora…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Raymond Scott, claimant, appeals a workers’ compensation order denying in its entirety his claim for temporary total disability, permanent total disability, temporary partial disability, or permanent wage loss benefits, evaluation and treatment through a rehabilitation program, and costs and attorney’s fees.

Employer and carrier acknowledge that they owe claimant temporary total disability benefits pursuant to section 440.15(2), Florida Statutes (1987), from May through August of 1987, so the order must be reversed to the extent that it denies temporary total disability benefits for that period.

The order must also be reversed to the extent that it denies claimant’s entire claim. Although the record supports the judge’s denial of total disability benefits, either as a continuation of temporary total disability benefits previously ordered1 or an award of permanent total disability benefits, the record does not support the denial of all claims. The indications by both Dr. MacMillan and the Casa Colina medical records (both of which were relied on by the judge below) that claimant can return to work only with some retraining are patently inconsistent with claimant having reached maximum medical improvement with no permanent impairment; yet, the legal effect of the ruling denying claimant’s entire claim is that he has reached maximum medical improvement with no permanent impairment.

Claimant requested either temporary partial disability benefits (temporary wage loss benefits)2 or permanent wage loss benefits3 as an alternative to temporary total disability or permanent total disability benefits. To be entitled to temporary partial disability benefits pursuant to section 440.15(4), an injured employee must have partially recovered his ability to work but must not have reached maximum medical improvement. Ringling Brothers v. O’Blocki, 496 So. 2d 947 (Fla. 1st DCA 1986).

An injured employee who has reached maximum medical improvement and is suffering from a permanent impairment, but is only partially disabled from working, may be entitled to .permanent wage loss benefits pursuant to section 440.-15(3)(b).

Cumberland Farm Food Stores v. Meier, 408 So. 2d 700 (Fla. 1st DCA 1982).

As a prerequisite to entitlement to either temporary or permanent wage loss benefits, however, the claimant, to demonstrate that such disability has prevented him from obtaining gainful employment, must either conduct a good faith work search or be excused from making such a search. Griffith v. McDonalds, 526 So. 2d 1032 (Fla. 1st DCA 1988); Piccadilly Cafeteria v. Polite, 433 So. 2d 591 (Fla. 1st DCA 1983).

There is no basis for concluding that claimant has reached maximum medical improvement. This record contains no opinion from any doctor nor statement in any medical records that claimant has reached maximum medical improvement or that he has no permanent impairment, and the record does not support inference of either fact. The only medical evidence regarding claimant’s condition subsequent to the prior, non-appealed order finding claimant temporarily totally disabled4 is found in the records of Casa Colina and the deposition and records of Dr. MacMillan. Both Dr. MacMillan and the Casa Colina records indicate that claimant can return to work if he initially limits his work day to six hours and completes some kind of work reentry program. This restriction indicates the presence of some medical impairment. Dr. MacMillan diagnosed claimant as suffering from myofascial pain syndrome,5 and the record does not contain any evidence that disputes this diagnosis. Dr. Visconti’s and Uricchio’s statements that they found no objective basis for claimant’s complaints do not conflict with Dr. MacMillan’s diagnosis.

First, nothing' in the record proves that myofascitis would necessarily exhibit symptoms that are subject to objective findings.

Second, Drs. Visconti and Uric-chio examined claimant approximately two years prior to the earlier, non-appealed order that found claimant temporarily totally disabled by a then-existing medical impairment and well prior to claimant’s participation in the Casa Colina program.

Thus, their records do not constitute competent, substantial evidence of claimant’s present condition. See Walker v. Allied Septic Tanks, 522 So. 2d 456 (Fla. 1st DCA 1988); Romero v. Waterproofing Systems of Miami, 491 So. 2d 600 (Fla. 1st DCA 1986); Reynolds v. Neisner Brothers, Inc., 436 So. 2d 1070 (Fla. 1st DCA 1983). The only fair construction of the medical evidence in this record is that claimant still suffers some degree of impairment and either has not reached maximum medical improvement or has reached maximum medical improvement with some degree of permanent impairment.

Regarding employer and carrier’s argument that claimant failed to conduct an adequate work search, the record contains no evidence indicating that a doctor told claimant he was released to return to work after leaving Casa Colina. Appellees’ reference to an incident in May of 1985 when employer sent claimant a letter directing him either to return to work or be terminated proves nothing. At that time, claimant returned to work and re-injured his back. Dr. Visconti’s records show that after the re-injury he placed claimant back on complete bed rest. This incident occurred before the claimant was found temporarily totally disabled in the 1987 order and thus was not competent to prove claimant had been released for work at or subsequent to his release from the Casa Colina program. Claimant specifically testified that no doctor had informed him that he could return to work. Claimant maintains that employer and carrier never informed him of his responsibility to conduct a work search, and employer and carrier did not present any competent evidence to dispute this fact. Since employer and carrier did not show that claimant had been informed of his release to work and of his responsibility to perform a work search, and since the record does not support a finding that claimant has reached maximum medical improvement without permanent impairment, the record fails to support the judge’s denial of wage loss benefits, either for temporary disability or permanent disability, for the period of May 1988 through the date of the hearing.

Therefore, we reverse the order with directions to award wage loss benefits for the period of May 1988 through the date of the hearing. We remand with directions to determine whether claimant has reached maximum medical improvement and is entitled to temporary partial disability or permanent wage loss benefits. See Morris v. Metal Industries, 491 So. 2d 312 (Fla. 1st DCA 1986).

In light of our reversal on the above issue, we also reverse the judge’s refusal to award claimant costs and attorney’s fees. We expressly leave open for further consideration claimant’s entitlement to evaluation and treatment through the Star Rehabilitation Program.

REVERSED AND REMANDED for further proceedings consistent herewith.

BOOTH and NIMMONS, JJ., concur. . On June 16, 1987, the judge ordered employer and carrier to provide claimant with treatment at Casa Colina Comprehensive Back Services (Casa Colina), and to pay claimant temporary total disability benefits until he completed the Casa Colina treatment and continuing thereafter so long as he remained temporarily totally disabled. Employer and carrier did not appeal this order. . § 440.15(4)(a), Fla.Stat. (1987). Temporary partial disability benefits are based on actual wage loss suffered during the period of such temporary disability.

. Wage loss benefits pursuant to section 440.-15(3)(b) may be referred to as "permanent" because the claimant receiving such benefits must have reached maximum medical improvement with some permanent impairment.

. See footnote 1.

. The doctor did not explain precisely what he meant by this term; however, we are confident it was used in the following sense. The word "myo” is a "combining form denoting relationship to muscle.” Dorland’s Illustrated Medical Dictionary 860 (26th ed. 1985). The word “fas-cial” means "pertaining to or of the nature of a fascia.” Id at 488. The word "fascia” means "a sheet or band of fibrous tissue such as lies deep to the skin or forms an investment for muscles and various organs of the body." Id. at 487. “Myofascitis” is defined as the "inflammation of a muscle and its fascia, particularly of the fas-cial insertion of muscle to bone.” Id. at 861.

Thus, myofascitis commonly is used to describe "low back pain of obscure pathology, with symptoms severe enough to indicate probable inflammatory origin." Blakiston’s New Gould Medical Dictionary 772 (2d ed. 1956).


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  • Nickolls v. Univ. OF Fla. & Div. of Risk Mgmt., 606 So. 2d 410 (Fla. 1st DCA 1992)
    …CA 1991); Dyer v. Lakeland Health Care Ctr., 582 So. 2d 760 (Fla. 1st DCA 1991); Stanley v. Okeelanta Corp., 575 So. 2d 734 (Fla. 1st DCA 1991); Pan American World Airways v. Mash, 573 So. 2d 383 (Fla. 1st DCA 1991); Scott v. Container Corp. of Am., 559 So. 2d 399 (Fla. 1st DCA 1990); Parker v. Eaton Corp., 554 So. 2d 644 (Fla. 1st DCA 1989); Coleman v. Champion Int'l, Inc., 552 So. 2d 1196 (Fla. 1st DCA 1989); Mackin v. Olde World Cheese Shop, 536 So. 2d 301 (Fla. 1st DCA 1988); Rios v. Fred Teitelbaum Const…
  • Rolle v. Picadilly Cafeteria, 573 So. 2d 94 (Fla. 1st DCA 1991)
    …made no objective neurological findings. However, objective findings are not necessarily essential to establish the validity of a claim. Rather, the nature of the injury may preclude such objective findings. See Scott v. Container Corp. of America, 559 So. 2d 399, 401 (Fla. 1st DCA 1990). Further, Dr. Kahn's failure to make such findings does not negate claimant’s improvement under his care— which improvement occurred after, and is therefore inconsistent with, the maximum medical improvement date set forth i…
  • Gill v. USX Corp. & Alexsis, Inc., 588 So. 2d 1035 (Fla. 1st DCA 1991)
    …st DCA 1991) (even if physician testifies that claimant could have worked at an earlier time, the evidence must establish that claimant was so informed or that she should have known she was released to work). Accord, Scott v. Container Corp. of Am., 559 So. 2d 399, 401 (Fla. 1st DCA 1990) (argument that claimant failed to conduct adequate work search is immaterial when there was no evidence that physician told claimant to return to work). We have previously stated that “a doctor’s communication concerning cla…

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