U.S. FOUNDRY & MANUFACTURING COMPANY AND GALLAGHER BASSETT INSURANCE SERVICE, APPELLANTS,
v.
JOSE SERPA, APPELLEE
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An employer/carrier appealed an award of permanent total disability (PTD) benefits to a welder injured in a workplace accident. The court reversed, holding that a claimant cannot establish PTD based merely on inability to continue work in his trained field or refusal of suitable employment without a medical determination of inability to work or a lengthy, exhaustive job search.
A claimant cannot establish entitlement to PTD benefits merely by showing inability to continue work in his trained field or by asserting that available employment is unsuitable. PTD requires either medical evidence that the claimant cannot perform light work uninterruptedly, or evidence of a lengthy, exhaustive job search that proved futile. Here, medical evidence supported that Serpa could perform the security guard job, and Serpa made no good faith attempt to do the work offered.
[1] To establish entitlement to permanent total disability benefits, a claimant must demonstrate either an inability to perform light work uninterruptedly due to physical lim…
[2] A claimant's belief that an employer acted in bad faith or a lack of interest in a offered position does not, in itself, establish entitlement to permanent total disabili…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To establish entitlement to PTD benefits, as was sought in this case, the claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy, exhaustive job search which has proved to be futile.”
Establishes the two-part test for PTD benefits that a claimant must satisfy.
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Join FLexlaw to unlock all legal intelligenceJose Serpa, a 53-year-old welder hired by U.S. Foundry in 1983, suffered a right knee injury in April 1985 requiring arthroscopic surgery. After recov…
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SHIVERS, Chief Judge.
The employer/carrier (E/C) appeal an order awarding permanent total disability (PTD) benefits. We reverse. Claimant is a 53-year-old, Spanish speaking Cuban immigrant who came to Florida in 1982. In Cuba he worked as a welder and U.S. Foundry hired him in that capacity in 1983. In April 1985 he suffered an industrial accident damaging cartilage in his right knee.
In May 1985 Dr. Nadler performed arthroscopic surgery, at which time he found evidence of arthritis and a small tear of the anterior portion of the medial meniscus. After two weeks away from work, claimant returned to welding work with U.S. Foundry. A few months later claimant was transferred to lighter work in the tool room and then was discharged in August 1985 because the tool room job was no longer needed.
The carrier paid temporary total disability and wage loss benefits and provided rehabilitation counseling services.
In August 1987 U.S. Foundry informed claimant’s rehabilitation counselor that two possible positions were soon to open for claimant but in December 1987, before claimant could be placed, he underwent further surgery on his injured knee. Following this surgery, Dr. Nadler believed claimant was at MMI and that he could return to light duty work that restricted standing or walking to one to two hours, lifting to ten to twenty pounds, limited pushing and pulling and no repeated bending or climbing. Based on the AMA guidelines, he gave claimant a four percent permanent impairment rating to the body as a whole. He also felt that claimant was not PTD and that it would be in claimant’s best interest to do some type of work.
In October 1988 the employer offered claimant a job as a security guard. Dr. Nadler believed claimant was capable of doing this job. At hearing claimant said that he did not accept the security guard job because he felt that U.S. Foundry was not acting in good faith and because they had fired him once already. He also felt that because he lacked any training as a security guard and did not know how to handle guns he was not qualified to perform the job.
The two rehabilitation counselors assisting claimant felt he was employable even though their efforts at placing claimant had been fruitless.
The judge of compensation claims (JCC) awarded claimant PTD benefits, finding that claimant’s rehabilitation counselors were unable to place claimant in suitable employment within his restrictions and abilities. In finding claimant PTD, the JCC cited cases which stand for the proposition that a causal relationship can be found between the incapacity to earn and an industrial injury when there is evidence that a claimant is unable to continue the work in which he has training and experience because of the disabling effects of the injury. E.g., Roger v. Sheraton Inn, 527 So. 2d 284 (Fla. 1st DCA 1988).
This proposition has been applied to establish causation, but it has not been applied to establish a blanket rule that a claimant’s inability to continue work in which he has training and experience because of an injury necessarily entitles him to PTD benefits. See Koger; Holiday Inn v. Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986); Carpenters R.
V. Service v. Eckert, 455 So. 2d 590 (Fla. 1st DCA 1984). It does not necessarily follow that a claimant’s success on a causation issue entitles him to a particular disability status with its commensurate benefits.
In Roger the JCC denied PTD benefits based on a finding that there was no causal connection between the claimant’s lack of employment and her industrial injury. Applying the above proposition, the court reversed the no causation finding based on the evidence that, due to her compensable injuries, the claimant could no longer work at the jobs in which she was trained and which she had held. Establishing the necessary causation, the court reversed the denial of PTD because the E/C did not adequately challenge the claimant’s job search, there was no evidence that she voluntarily limited her income, and because her vocational rehabilitation counselor testified that the claimant’s medically established physical restrictions effectively precluded her from finding work nearby. The causation issue was a separate matter, the affirmative resolution of which was the sine qua non of a PTD status.
To establish entitlement to PTD benefits, as was sought in this case, the claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy, exhaustive job search which has proved to be futile. E.g., H.S. Camp & Sons v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984). “Where there is no medical evidence that the claimant is unable to work, she is required to make a conscientious effort to return to work before she can establish that she is in fact unable to work.” Walter Glades Condominium v. Morris, 393 So. 2d 664, 665 (Fla. 1st DCA 1981).
Since Dr. Nadler believed that claimant could perform the security guard job that U.S. Foundry offered him and that it would be in claimant’s best interest to return to work, his testimony alone obviously does not provide a basis for a PTD award. See Buena Vista Palace v. Lopez, 557 So. 2d 948 (Fla. 1st DCA 1990).
The JCC found that claimant was ill-suited to work as a security guard. In doing so he referred to the claimant’s lack of interest in being a security guard and the claimant’s belief that U.S. Foundry exhibited bad faith. In support of this finding he cited New Wales Chemicals, Inc. v. Parks, 518 So. 2d 360 (Fla. 1st DCA 1987) and Viking Sprinkler Co. v. Thomas, 413 So. 2d 816 (Fla. 1st DCA 1982). New Wales involved an E/C’s refusal to provide rehabilitation benefits1 because they had offered claimant a security guard job.
This court affirmed the JCC’s award of rehabilitation benefits holding that the security guard job was “not suitable employment for claimant so as to preclude him from receiving rehabilitation benefits.” Id. at 363. In Viking Sprinkler we affirmed the JCC’s award of rehabilitation benefits, stating that refusing rehabilitation benefits because of the availability of any employment, regardless of its suitability, is counter to the statutory goal of rehabilitation which is to return the employee to “suitable gainful employment.” These cases do not apply to an analysis of a PTD finding. The issue before the JCC in the instant case was not claimant’s entitlement to rehabilitation benefits but whether he was PTD.
Broward County Sheriffs Office v. Williams, 430 So. 2d 968 (Fla. 1st DCA 1983) is similar to the instant case and guides our decision here. In that case the claimant was a deputy sheriff who suffered neck and back injuries resulting in a 30 percent permanent impairment to the body as a whole. At hearing on his claim for PTD benefits the employer offered claimant a job as a bailiff and the JCC continued the hearing to allow claimant to take the pre-employment physical examination and to attempt work as a bailiff. After the examination, his doctor concluded that he was capable of handling the job. Claimant, nevertheless, did not report for work, and at a subsequent hearing he asserted that he was unable to do the work because of the possibility of becoming involved in physical altercations. The court held:
The claimant is clearly not patently totally disabled, and there was no competent substantial medical evidence that claimant could not perform the duties of a civil bailiff. The claimant’s own belief that he would be unable to handle the work of a bailiff cannot substitute for a good faith attempt to actually do the work.
Id. at 969. As in Broward County Sheriffs Office, there is no competent substantial medical evidence in the record that claimant could not perform the duties of security guard. Indeed, the medical evidence indicates the contrary. In addition, claimant made no effort to do the work offered; he merely expressed apprehension about doing it. As such, there is no adequate basis for the PTD finding.
REVERSED and REMANDED with directions that the JCC enter an order requiring the E/C to allow claimant to attempt the offered employment. In doing so, we do not prejudice any entitlement claimant might have to wage loss and rehabilitation benefits.
BOOTH and WOLF, JJ., concur. . Section 440.49(l)(a), Fla.Stat., in pertinent part, requires employers or carriers to provide rehabilitation services when it appears that a compensable injury will preclude an employee from earning wages equal to wages earned prior to the injury.
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Wal-Mart Stores, Inc. v. Liggon, 668 So. 2d 259 (Fla. 1st DCA 1996)…form was available and competent substantial evidence does not support the determination that the men’s fitting room job offered to her constituted sheltered employment, the JCC erred in finding to the contrary. See U.S. Foundry & Mfg. Co. v. Serpa, 564 So. 2d 559, 561-62 (Fla. 1st DCA 1990) (court reversed PTD finding where claimant refused to attempt job as security guard offered by the employer at first merits hearing, despite doctor’s conclusion that he could handle job: “[Tjhere is no competent substanti…
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Shaw v. Publix Supermarkets, 609 So. 2d 683 (Fla. 1st DCA 1992)…in late October 1990 but was unable to work more than 3 Vi hours on any single day. She then discontinued working because she said it was too difficult and painful. These facts distinguish the case sub judice from U.S. Foundry & Manuf. Co. v. Serpa, 564 So. 2d 559, 561 (Fla. 1st DCA1990) and Broward County Sheriffs Off. v. Williams, 430 So. 2d 968 (Fla. 1st DCA1983). E/C contend the light-duty working conditions were arranged to assist Claimant’s recovery, but not because any medical evidence necessitated sp…
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Carter v. City OF Venice, 584 So. 2d 577 (Fla. 1st DCA 1991)…benefits, .a claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy, exhaustive job search which has proved futile. U.S. Foundry & Manufacturing Company v. Serpa, 564 So. 2d 559 (Fla. 1st DCA 1990). Our review of the record shows that no view of the evidence would support the conclusion that the claimant did not satisfy the above articulated alternative method of establishing entitlement to PTD by engaging in a lengthy, exh…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walter Glades Condo. v. Petunia Morris, 393 So. 2d 664 (Fla. 1st DCA 1981)
- H.S. Camp & Sons & Am. Mut. Ins. Co. v. Flynn, 450 So. 2d 577 (Fla. 1st DCA 1984)
- Viking Sprinkler Co. & Lumbermens Mut. Cas. Co. v. Thomas, 413 So. 2d 816 (Fla. 1st DCA 1982)
- Graham v. State, 496 So. 2d 227 (Fla. 1st DCA 1986)
- Carpenters R.V. Serv. & S.C. Ins. Co. v. Eckert, 455 So. 2d 590 (Fla. 1st DCA 1984)
- Buena Vista Palace & Adjustco, Inc. v. Lopez, 557 So. 2d 948 (Fla. 1st DCA 1990)
- NEW Wales Chems., Inc. v. Parks, 518 So. 2d 360 (Fla. 1st DCA 1987)
- Broward Cnty. Sheriff's Off. v. Williams, 430 So. 2d 968 (Fla. 1st DCA 1983)
- Koger v. Sheraton INN & Ina/Aetna & Tony's Rest. & Reliance Ins. Co., 527 So. 2d 284 (Fla. 1st DCA 1988)