GLADYS CROFT, APPELLANT,
v.
DONNA JEAN PACKING COMPANY AND FIREMAN'S FUND INSURANCE, APPELLEES

Fla. 1st DCA | 1991-03-29
No. 90-00358
MINER, J., and WENTWORTH, Senior Judge, concur.
579 So. 2d 146 Florida District Court of Appeal, First District (1991)

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Synopsis

Gladys Croft appealed the denial of temporary total disability (TTD) benefits for two periods following her work-related 1978 injury that manifested in a back condition in early 1989. The court reversed, holding that Croft was entitled to TTD benefits for January 19-31, 1989 and the period after March 13, 1989, because medical evidence supported her inability to work and she was not properly informed of her release to light duty.


Holding

The court held that claimant is entitled to TTD benefits for January 19-31, 1989 because her increased pain causing work stoppage was consistent with the uncontradicted medical diagnoses, and it was unreasonable to expect her to work during the interim period before her specialist's diagnosis. The court also held that claimant is entitled to TTD benefits for the period following March 13, 1989 because she was never informed that she was released to return to work.


Headnotes

[1] Temporary total disability benefits require competent, substantial evidence that the claimant is unable to work.

[2] A claimant who is not under medical restrictions must make a conscientious effort to return to work to establish inability to work.

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Key Quotes

“Generally, there must be competent, substantial evidence showing that the claimant is unable to work before she is entitled to temporary total disability benefits.”

Establishes the legal standard for TTD benefits entitlement

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Facts & Procedural History

Claimant suffered a work-related slip-and-fall accident on December 4, 1978, requiring multiple knee surgeries. On January 19, 1989, she experienced s…

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Opinion of the Court
BOOTH, Judge.

BOOTH, Judge.

This cause is before us on appeal from the Judge of Compensation Claims order denying temporary total disability benefits for the periods January 19, 1989 through January 31, 1989, and March 13, 1989 forward.

Claimant was injured in a work-related, slip-and-fall accident on December 4, 1978. As a result of that accident, claimant has undergone numerous knee operations and been placed under the care of Dr. Terrence Barry. She continued working sporadically until January 19, 1989, when significant back pain caused her to seek medical care from Dr. Barry, who diagnosed a possible back problem. Dr. Barry referred claimant to Dr. Johns, a neurosurgeon, who on February 1, 1989, diagnosed lumbar radiculitis secondary to “HNP [herniated nucleus pul-posus] L4-5,” posterior joint syndrome, and lumbar degenerative joint and disc disease. Dr. Johns testified that claimant could not work from February 1, 1989 through March 13, 1989. Both doctors causally related claimant’s back injury to the work-related accident.

On March 13, 1989, Dr. Johns rediag-nosed claimant and found that the signs of lumbar radiculitis were not present. Furthermore, Dr. Johns testified that claimant could have returned to work on a light-duty basis. However, at no time was claimant informed that she could return to work. The employer and carrier (E/C) agree that claimant was temporarily totally disabled for the period February 1, 1989 through March 13, 1989, but dispute the January 19 to February 1 period and after March 13. The judge of compensation claims denied temporary total disability for the periods in question.

Generally, there must be competent, substantial evidence showing that the claimant is unable to work before she is entitled to temporary total disability benefits. 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. Sun ’N Lake Inn, Inc. v. Folsom, 426 So. 2d 1265 (Fla. 1st DCA 1983). Here, claimant’s increased pain caused her to stop work and seek medical treatment on January 19. On that date, she was diagnosed as having a possible back condition and was referred to a specialist. Two weeks later, on February 1, she was able to see the specialist, who confirmed a back condition and recommended she stop work. It would be unreasonable to assume that she should have worked during the interim period prior to the final diagnosis and stop-work prescription of February 1.

Thus, appellant’s increased pain, which caused her to discontinue her employment on January 19, 1989, was consistent with the diagnosis of Drs. Johns and Barry, whose testimony was un-contradicted. Competent, substantial evidence supports an award of temporary total disability for the period January 19 through January 31, 1989. See Sun ’N Lake Inn, Inc. v. Folsom, supra, and also Evans v. Orlando Work Force, 449 So. 2d 992 (Fla. 1st DCA 1984).

As to the period following March 13, 1989, Dr. Johns testified that claimant could have returned to work. However, the record reveals that no one informed claimant that she was released to return to work nor was it clear that claimant should have known she was released for that purpose. Therefore, claimant cannot be denied TTD benefits for the period following March 13, 1989. Fulmer-Orlando v. Taylor, 419 So. 2d 734 (Fla. 1st DCA 1982); Davis v. Phillips & Jordan, 483 So. 2d 534 (Fla. 1st DCA 1986).

Accordingly, we reverse and remand to the judge of compensation claims for determination of entitlement to temporary total disability benefits consistent with this opinion.

MINER, J., and WENTWORTH, Senior Judge, concur.


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