MICHAEL ALBERTA, APPELLANT,
v.
AMERICAN FREIGHT SYSTEMS, APPELLEE
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A workers' compensation claimant appealed a JCC order denying permanent physical impairment and wage loss benefits following a work-related back injury. The appellate court reversed the no-impairment and wage-loss denials, finding the medical evidence inconsistent and the carrier failed to inform the claimant of his entitlements and obligations regarding wage loss.
The court reversed the finding of no permanent impairment because Dr. Bonis's medical notes showed inconsistent range-of-motion findings that support moderate impairment under the AMA Guides, and the lack of testimony reconciling these findings with the zero percent rating rendered the notes insufficient as competent, substantial evidence. The court reversed the wage loss denial because the carrier failed to inform the claimant of his rights and obligations, and an uninformed decision to retire cannot excuse the carrier's duty to inform the claimant of his entitlement to wage loss benefits.
[1] A finding of no permanent impairment is not supported by competent, substantial evidence when a doctor's notes contain inconsistencies regarding the claimant's range of m…
[2] A claimant's voluntary retirement does not preclude entitlement to wage loss benefits if the employer/carrier failed to inform the claimant of their rights and obligation…
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Join FLexlaw to unlock all legal intelligence“it is a well established tenet of workers' compensation law that the E/C must inform a claimant of his rights to wage loss and of his responsibility to perform a work search”
Establishes the carrier's mandatory duty to inform claimants of their entitlements and obligations under workers' compensation law.
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Join FLexlaw to unlock all legal intelligenceOn February 26, 1985, Alberta, a 59-year-old truck driver, suffered a back injury while unloading a truck. Dr. Bonis, a rehabilitative medicine specia…
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SHIVERS, Chief Judge.
Claimant appeals portions of a workers’ compensation order finding he is not permanently physically impaired and denying him any wage loss or future chiropractic care. He also appeals the rejection of one medical opinion. We reverse the finding of no permanent impairment and no wage loss, and affirm the denial of future chiropractic care and the rejection of the one medical opinion.
On February 26, 1985, claimant, a 59-year-old truck driver, injured his back while unloading a truck for his employer. The employer accepted the injury as compensable and provided some compensation and medical benefits.
Eventually, claimant came under the care of Dr. Bonis, an M.D. specializing in rehabilitative medicine, who, according to his notes,1 believed that claimant suffered a cervical and lumbar sprain with no evidence of acute nerve root involvement. The Judge of Compensation Claims (JCC) relied primarily upon Dr. Bonis’s notes in making his no permanent impairment finding. In the order, he wrote that because of claimant’s more recent visits with Dr. Bon-is, Dr. Bonis was in a better position than other treating doctors to evaluate claimant up to the time of hearing.
Dr. Bonis initially placed claimant in an intensive rehabilitation program which was monitored by the employer/carrier’s (E/C’s) rehabilitation nurse. Dr. Bonis discharged claimant from the program March 28, 1986 and found him at MMI. Dr. Bonis recommended in a letter to the E/C that claimant could return to work March 31, 1986 with restrictions on lifting 50 pounds frequently and 75 pounds occasionally, sitting for more than two hours or standing more than one, and walking more that one mile. According to Dr. Bonis, these restrictions translated into a zero percent whole body impairment rating under the AMA Guides.
In Wilbanks v. Cianbro Corp., 512 So. 2d 300 (Fla. 1st DCA 1987) this court struck the JCC’s no permanent impairment finding because of the inconsistency presented by the JCC’s reliance on a doctor that placed on the claimant numerous medical restrictions which he had not lifted. The doctor had restricted the claimant in Wilbanks from repetitive bending, lifting over 25 pounds, pushing or pulling heavy loads, and prolonged sitting or standing.
As to Dr. Bonis’s restrictions in the instant case, it is not clear whether he ever lifted those restrictions as the doctor in Wilbanks had never lifted the restrictions placed on the claimant there. After completion of the initial rehabilitation program, claimant went back into the program for twenty-two therapy sessions between March 9, 1987 and April 23, 1987. Claimant again sought Dr. Bonis’s services in June 1988 and after that visit Dr. Bonis’s notes indicate that claimant had lumbar spine flexion of 75 degrees, extension of 15 degrees, lateral flexions of 20 degrees, and rotations of 15 degrees. As claimant points out, these findings appear to yield a moderate whole body permanent impairment in accordance with the AMA Guides. As a result, Dr. Bonis s notes do not provide adequate support for the JCC’s no permanent impairment finding. Had Dr. Bonis testified by deposition or otherwise and had he reconciled the range of motion test results and the restrictions he placed on claimant with his overall opinion that claimant has no permanent impairment, such might have provided competent, substantial evidence to support the JCC’s finding. Given the inconsistency in the notes, however, they cannot constitute competent, substantial evidence. We reverse the no permanent impairment finding and remand for taking of further evidence on the issue.
At hearing, claimant testified that after he completed his March 1986 rehabilitation program and Dr. Bonis returned him to work, he returned to his employer, accompanied by his rehabilitation nurse, seeking light duty. He said they told the terminal manager what his restrictions were but the terminal manager had no light-duty work available. Upon learning this, claimant decided to retire right then and there. Claimant also testified that neither his rehabilitation nurse nor anyone else associated with the E/C told him he was obligated to perform a work search. The carrier’s representative at the hearing admitted that nothing was sent claimant regarding his entitlements and obligations.
The JCC did not order any wage loss benefits be paid claimant, writing that claimant retired voluntarily and began drawing social security benefits. The JCC acknowledged that claimant had completed some work search, but dismissed it as cursory. It is apparent from the record that claimant undertook a work search only after his lawyer told him to.
It is a well established tenet of workers’ compensation law that the E/C must inform a claimant of his rights to wage loss and of his responsibility to perform a work search. E.g., Ninia v. Southwest Bottlers, 547 So. 2d 966 (Fla. 1st DCA 1989). A work search is not a prerequisite to receive benefits if the E/C has failed to advise the claimant of his obligation to perform such. Id. We agree with the JCC that claimant’s decision to retire was voluntary; however, we cannot permit claimant’s decision to serve as a premise for denial of wage loss when he was not properly informed of his entitlements and obligations under the law. On this record, we are unable to determine that claimant would have retired even had he been informed as required; but it would be no imprudent speculation to wager that if he had been so informed, retirement would not have been so readily forthcoming. Regardless of whether claimant would or would not have retired if he had been properly informed, his uninformed election to retire should not subsequently excuse the E/C of their duty to inform claimant of his right to seek wage loss benefits. Accordingly, we reverse the denial of wage loss and remand for reconsideration of claimant’s entitlement to wage loss in light of this opinion.
As to claimant’s remaining points on appeal, we find that the JCC did not abuse his discretion in rejecting Dr. Vogel’s' opinion on permanent physical impairment, Curry v. Miami Dolphins, Ltd., 522 So. 2d 1010 (Fla. 1st DCA 1988), and the medical opinions on which the JCC relied support the denial of future chiropractic care.
AFFIRMED in part, REVERSED and REMANDED in part.
BOOTH and WOLF, JJ., concur. . There was no medical testimony in this case. Medical reports and narratives were stipulated into evidence.
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Roll v. Inlet, 609 So. 2d 674 (Fla. 1st DCA 1992)…gation to inform an employee of the entitlement to wage-loss benefits upon voluntary retirement where the employer knew, or reasonably should have known, that the retirement is related to the industrial accident. Alberta v. American Freight Systems, 565 So. 2d 378 (Fla. 1st DCA 1990). In Alberta, Phillips v. Duval County School Board, 577 So. 2d 630 (Fla. 1st DCA 1991), and Southern Bell Tel. Co. v. Seneca, 512 So. 2d 1005 (Fla. 1st DCA 1987), the employers were required to advise the claimants of their right…1 / 2
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Rodriguez v. Albertson's & Risk Administrators, Inc., 614 So. 2d 678 (Fla. 1st DCA 1993)…no permanent impairment is irreconcilable with a conclusion that the claimant has physical restrictions on account of the injury. See, e.g., Williams v. Walt Disney World Co., 583 So. 2d 794 (Fla. 1st DCA 1991); Alberta v. American Freight Systems, 565 So. 2d 378 (Fla. 1st DCA 1990); [*680] Jackson v. Publix Supermarkets, Inc., 520 So. 2d 50 (Fla. 1st DCA 1987); Wilbanks v. Cianbro Corp., 512 So. 2d 300 (Fla. 1st DCA 1987). Because of the irreconcilable opinions offered by Dr. Burgess, his testimony does no…
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Hoyt Phillips v. Duval Cnty. Sch. Bd. & Gallagher Bassett, 577 So. 2d 630 (Fla. 1st DCA 1991)…ion omitted] This obligation cannot be met unless the employer informs the injured worker of the benefits to which he or she may be entitled. Appellant’s voluntary retirement is not dispositive of this issue. In Alberta v. American Freight Systems, 565 So. 2d 378, 379-380 (Fla. 1st DCA 1990), the claimant, then age 59, sustained a back injury in the course of his employment. The claimant completed a rehabilitation program, reached MMI, and was returned to work with certain restrictions. When the Alberta clai…
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
- Emory Curry v. Miami Dolphins, Ltd., 522 So. 2d 1010 (Fla. 1st DCA 1988)
- Ninia v. Sw. Bottlers & Liberty Mut. Ins. Co., 547 So. 2d 966 (Fla. 1st DCA 1989)
- Hobart Wilbanks v. Cianbro Corp. & U.S.F. & G., 512 So. 2d 300 (Fla. 1st DCA 1987)