PAN AMERICAN BANK AND C.L.A.S., APPELLANTS,
v.
MARIE ANN GLINSKI, APPELLEE
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The Florida First District Court of Appeal affirmed a workers' compensation award of permanent total disability benefits to an injured claimant and rejected the employer/carrier's attempt to offset those benefits with social security payments. The court held that permanent total disability can be established through evidence combining medical testimony of substantial impairment with expert labor market analysis, without requiring proof that the claimant is totally unable to work or has exhaustively searched for employment.
Permanent total disability benefits are properly awarded when medical evidence establishes substantial permanent impairment with severe physical restrictions and qualified expert testimony demonstrates the claimant cannot earn the wages previously received in the existing labor market, without requiring an exhaustive work search or medical testimony of total inability to work. The social security offset was properly denied because the employer and carrier failed to obtain from the Social Security Administration a full payment record showing initial entitlement and any prior offsets by SSA itself, and because the statute authorizing social security offsets does not apply to monthly wage loss benefits.
[1] A claimant may establish permanent total disability benefits through a combination of medical testimony and evidence of employability, without necessarily being medically…
[2] Employability evaluations by qualified professionals, considering a claimant's physical limitations and the labor market, can constitute competent substantial evidence su…
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Join FLexlaw to unlock all legal intelligence“the medical testimony established that claimant was suffering from a substantial permanent impairment due to the injury that severely restricted her ability to engage in physical activities. Although Dr. Jaen encouraged claimant to return to work in spite of these restrictions, he was not shown to be a qualified expert in the marketing of labor services and his testimony would not serve as competent proof that claimant remained capable of earning wages in the existing labor market.”
Distinguishes between medical capacity testimony and expert labor market testimony as evidence of disability
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Join FLexlaw to unlock all legal intelligenceThe claimant was injured in 1983 and reached maximum medical improvement in May 1990 with a 30% permanent impairment of the entire body. Her treating …
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ZEHMER, Judge.
The employer and carrier appeal a workers’ compensation order awarding the claimant permanent total disability benefits and denying an offset against the compensation benefits for social security benefits being received by the claimant. We affirm for the following reasons.
The permanent total disability award is supported by competent substantial evidence. Dr. Jaen opined that the claimant reached maximum medical improvement on May 7, 1990, with a 30% permanent impairment of the entire body. He stated that she could return to light duty work, but that she would be restricted to a job that would not require her to sit for more than 30 minutes continuously or stand for more than 90 minutes continuously, and she was not to stoop, bend, or walk up and down stairs.
On June 11, 1990, Dr. Jaen stated that claimant would be limited to working only 4 days per week.
On August 10, 1990, Dr. Jaen added to claimant’s limitations that she could not lift more than 30 pounds, and further restricted continuous standing to no more than 45 minutes. Cynthia Kirsch, a licensed rehabilitation evaluator, testified that she prepared an evaluation of claimant based on claimant’s physical limitations, work history, and education. She also performed a survey of the market in claimant’s area of employment. Based on this information, Ms. Kirsch opined that claimant is not capable of gainful employment due to her physical limitations, particularly the limitation on sitting for prolonged periods of time. In her opinion, a work search would be futile. She opined that claimant could not be rehabilitated through education or training to a point where she would be able to obtain and perform gainful employment. Again, the primary impediment to obtaining rehabilitation is the fact that claimant could not sit through the required classes.
The employer and carrier argue that because Dr. Jaen stated claimant could return to work, she was required to perform a lengthy and exhaustive work search as a prerequisite to obtaining an award of permanent total disability benefits. This argument, however, misconceives the nature of the proof required to establish the essential statutory elements of that award. The statutes in effect on the date of claimant’s injury in 1983 are applicable to the determination of her substantive rights. The term “disability” is defined in those statutes as meaning “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of injury.” § 440.-02(9), Fla.Stat. (1983).
Permanent total disability benefits are payable upon a determination that claimant’s disability is both total and permanent. Here, the medical testimony established that claimant was suffering from a substantial permanent impairment due to the injury that severely restricted her ability to engage in physical activities. Although Dr. Jaen encouraged claimant to return to work in spite of these restrictions, he was not shown to be a qualified expert in the marketing of labor services and his testimony would not serve as competent proof that claimant remained capable of earning wages in the existing labor market. Rather, the evidence presented by Ms. Kirsch, a witness shown to be qualified to express an opinion as to the claimant’s employability in the job market while taking into account her physical limitations, including those imposed by Dr. Jaen, was competent substantial evidence sufficient to support a finding that claimant was totally disabled from earning the wages she was receiving at the time of her injury. There simply is no legal requirement that claimant is limited to either presenting medical testimony that she can not return to work or performing an exhaustive work search before qualifying for permanent total disability benefits. The combination of the medical proof presented here coupled with the other evidence received by the judge was legally sufficient to support the award in this case. See Bill’s Equipment and Rentals v. Teel, 498 So. 2d 536 (Fla. 1st DCA 1986), wherein this court affirmed an award of permanent total disability benefits in the absence of medical evidence that the claimant was totally unable to work because the physical restrictions placed on the claimant’s activities effectively eliminated all types of employment within his capacity and qualifications. We further held that the deputy commissioner did not err in excusing the claimant’s failure to actively seek employment because the evidence showed that the claimant’s effort to find employment would be a futile and useless gesture.
There was likewise no error in denying the requested social security offset under the circumstances of this case and ordering that the amounts so withheld by the employer and carrier be reimbursed to the claimant. The appealed order finds that the employer and carrier had not obtained from the Social Security Administration a full payment record showing the initial month of entitlement to social security benefits and whether the social security benefits had already been offset by the Social Security Administration itself.
Therefore, the order comports with this court’s decision in Colonel’s Table v. Molena, 412 So. 2d 64 (Fla. 1st DCA 1982). In that case, the employer and carrier accepted the claimant as permanently and totally disabled but discontinued compensation payments, contending that they were entitled to do so because the claimant was receiving social security benefits for herself and her minor child in excess of the weekly compensation amount.
At the hearing on this issue, neither party presented any evidence as to the amount of offset that could otherwise be taken by the Social Security Administration pursuant to 42 U.S.C. § 424a. The deputy commissioner held that the employer and carrier’s failure to establish the amount of offset that could otherwise be taken by the Social Security Administration precluded the employer and carrier from taking the statutory offset until such information was provided.
This court affirmed the deputy commissioner’s order, stating that such an offset should not be permitted in the absence of evidence that it is warranted. This court further stated that since the chapter 440 statutory offset provision is a defense to the payment of compensation otherwise due, “the burden of proving its appropriateness and applicability would appear to be one which employer and carrier must bear.” 412 So. 2d at 66.
The appealed order in this case also denied the social security offset and ordered the sums withheld by the employer and carrier reimbursed to the claimant because the compensation benefits paid to the claimant under the 1983 statute were monthly benefits not subject to social security offsets. In Good Housekeeping v. Kitler, 492 So. 2d 700 (Fla. 1st DCA 1986), we held that the statute authorizing offset of social security disability benefits against weekly workers’ compensation benefits does not authorize social security offsets against wage loss benefits, because wage loss benefits are paid monthly and are based on an average monthly wage. While the statute authorizing social security offsets, section 440.15(9)(a), keys such offsets to “weekly” benefits, the statute governing wage loss benefits, section 440.15(3)(b), Florida Statutes (1989), was amended in 1989 to provide that wage loss benefits are to be based on a claimant’s average weekly wage and payable on a biweekly basis. The employer and carrier argue that this amendment to section 440.15(3)(b) allows them to apply the social security offset provision to all wage loss benefits paid after the date of the amendment. The employer and carrier have not yet established that any such offset would be proper for the reasons stated in the preceding paragraph, so we do not reach the issue concerning whether the 1989 amendment to section 440.15(3)(b) can operate to subject wage loss benefits paid after the date of that amendment to social security offsets. This issue will become ripe for review only after the employer and carrier obtain the necessary information from the Social Security Administration and attempt to withhold any offset.
The order is AFFIRMED.
SHIVERS and KAHN, JJ., concur.
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Shaw v. Publix Supermarkets, 609 So. 2d 683 (Fla. 1st DCA 1992)…v. Surrency, 467 So. 2d 740, 741-42 (Fla. 1st DCA 1985). The JCC found the number of job searches conducted by Claimant was “so few in number to be insufficient to constitute a good faith job search for any period.” In Pan American Bank v, Glinski, 584 So. 2d 52, 53-54 (Fla. 1st DCA1991), however, we held that a job search is not a prerequisite for obtaining PTD benefits if a claimant demonstrates inability to engage in gainful employment due to physical limitations. See Carter v. City of Venice, 584 So. 2d…
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Santos v. K-Mart & KM Admin. Servs., 629 So. 2d 1071 (Fla. 1st DCA 1994)…ployee. Wilcox. It is this review which Santos asserts he sought below. The employer carries the burden, if raised by a claimant as an issue for hearing, to prove that a social security offset was appropriately taken. Pan American Bank v. Glinski, 584 So. 2d 52 (Fla. 1st DCA 1991); Colonel’s Table v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982). In the instant ease, in dismissing Santos’ claim, the JCC effectively approved the e/c’s offset without any eviden-tiary basis. Upon the filing of Santos’ claim reque…
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Enedina Herrera v. Hojo INN Maingate & Armor Ins. Co., 680 So. 2d 439 (Fla. 1st DCA 1996)…rter, 584 So. 2d at 578. Entitlement to permanent to [*441] tal disability may be shown as well by a combination of medical proof of a substantial permanent impairment and vocational evidence that a claimant is unemployable. Pan Am. Bank v. Glinski, 584 So. 2d 52, 53-54 (Fla. 1st DCA1991). In the present case the JCC found a substantial physical impairment and expressly accepted the testimony of the physician who assigned that impairment. This physician, Dr. Merritt, limited claimant to maximum lifting of te…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bill's Equip. & Rentals & U.S. Fid. & Guar. Co. v. Teel, 498 So. 2d 536 (Fla. 1st DCA 1986)
- Colonel's Table & Zurich-American Ins. Co. v. Malena, 412 So. 2d 64 (Fla. 1st DCA 1982)
- Good Housekeeping GAS Co. & Crawford & Co. v. Kitler, 492 So. 2d 700 (Fla. 1st DCA 1986)