ANGELO CARUSO, APPELLANT,
v.
CROWN LIQUORS, INC. AND COSMOPOLITAN MUTUAL INSURANCE COMPANY, APPELLEES
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In this workers' compensation appeal, the Florida District Court of Appeal affirmed the industrial judge's denial of chemonucleolysis treatment and the average weekly wage calculation, but reversed the judge's erroneous rulings that an injured employee must seek work regardless of physical condition and that Caruso's disability should be apportioned between a work injury and pre-existing conditions.
The court affirmed that chemonucleolysis need not be provided and that the average weekly wage calculation was proper. The court reversed the judge's requirement that Caruso seek employment despite being bedridden 23 hours daily, holding that failure to seek employment is reasonable and justified under certain circumstances. The court also reversed the apportionment of disability, holding that apportionment is proper only when the pre-existing condition was disabling at the time of accident or award, which was not shown here.
[1] An employer is not required to furnish a medical procedure not available in the United States.
[2] The failure of an injured employee to seek employment may be reasonable and justified under certain circumstances, particularly when the employee is confined to bed and h…
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Join FLexlaw to unlock all legal intelligence“The failure of the claimant to seek employment is reasonable and justified under certain circumstances.”
Establishes that injured workers need not seek employment in all circumstances, contradicting the industrial judge's blanket requirement
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Join FLexlaw to unlock all legal intelligenceAngelo Caruso was injured in an industrial accident resulting in a herniated disc. The industrial judge found that Caruso is confined to bed approxima…
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PER CURIAM.
This appeal and cross-appeal from an order of the judge of industrial claims presents us with four issues. We affirm the judge’s ruling that the employer/carrier should not be required to furnish the claimant with chemonucleolysis, a medical/surgical procedure not available in the United States. We find no reversible error in the method used to calculate the average weekly wage and therefore affirm.
However, we do find error in the judge’s ruling that an injured employee is required to look for work regardless of his physical or mental condition, and in his apportionment of claimant’s disability.
The judge of industrial claims found that Caruso is confined to bed approximately 23 hours a day and is heavily medicated. He found this confinement compatible with Caruso’s diagnosis and condition. Despite this, the judge found “that it is necessary for an injured employee to test the open labor market under any circumstances.” This is a misstatement of the law. The failure of the claimant to seek employment is reasonable and justified under certain circumstances. Chicken ‘N’ Things v. Murray, 329 So. 2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976). It belies all logic and reason to expect a person who is confined to bed 23 hours á day to actively seek work.
The judge of industrial claims also erred when he apportioned Caruso’s permanent partial disability one-half to the industrial accident and one-half to his pre-exist-ing thrombophlebitis and pulmonary embolism. In Evans v. Florida Industrial Commission, 196 So. 2d 748 (Fla.1967), the court ruled that apportionment is proper only when the pre-existing condition is disabling at the time of the accident or at the time of the award. There is no evidence in the record showing that Caruso was disabled from the thrombophlebitis or pulmonary embolism at the time of the accident or at the time of the hearing, and the judge specifically found the condition asymptomatic. The judge further found the indus trial accident resulted in a herniated disc which was causing the present symptoms and disability. Such findings are inconsistent with apportionment.
The record, including the judge’s order, indicates Caruso is permanently and totally disabled and the disability is solely attributable to the industrial accident. %
Affirmed in part, reversed in part and remanded for entry of an order consistent with this opinion.
MILLS, C. J., and McCORD, J., concur. BOOTH, J., dissents with an opinion.
BOOTH, Judge,
dissenting.
I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So. 2d 1265 (Fla. 1st DCA 1979).
On the merits, I would concur in the majority’s opinion.
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Escambia Cnty. Council ON Aging & Auto-Owners Ins. Co. v. Goldsmith, 465 So. 2d 655 (Fla. 1st DCA 1985)…and an award is made. He further argues that the following cases of this Court have consistently and uniformly applied the criteria set forth in Evans: Sarasota County v. Reichert, 413 So. 2d 163 (Fla. 1st DCA 1982); Caruso v. Crown Liquors, Inc., 379 So. 2d 1317 (Fla. 1st DCA 1980); Dade County School Board v. Walker, 379 So. 2d 1026 (Fla. 1st DCA 1980); Boca Raton Sprinkler v. Andrews, 416 So. 2d 846 (Fla. 1st DCA 1982); Barile Excavation & Pipeline Sewer Improvement v. Hough, 417 So. 2d 843 (Fla. 1st DCA…
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Sarasota Cnty. & R. P. Hewitt & Assocs. of Fla., Inc. v. Reichert, 413 So. 2d 163 (Fla. 1st DCA 1982)…rkers’ compensation order awarding claimant permanent total disability benefits. We affirm. Apportionment is proper only when the pre-existing condition is disabling at the time of the accident or at the time of the award. Caruso v. Crown Liquors, 379 So. 2d 1317 (Fla. 1st DCA 1980). There is competent substantial evidence that claimant was not disabled at either time because of a pre-existing condition. LARRY G. SMITH and SHAW, JJ., concur.…
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RED OAK Farms, Inc. v. Scott, 408 So. 2d 841 (Fla. 1st DCA 1982)…such circumstances, a job search is not required to establish total loss of wage earning capacity. Chicken ’N Things v. Murray, 329 So. 2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976); Caruso v. Crown Liquors, Inc., 379 So. 2d 1317 (Fla. 1st DCA 1980). The pertinent findings of the deputy’s order are as follows: I find that the claimant is permanently and totally disabled. I base this finding on the claimant’s education, age, prior work experience and the physical limitation…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emerson Crews v. Town OF BAY Harbor Islands & Metro. Dade Cnty. Self Ins. Fund, 378 So. 2d 1265 (Fla. 1st DCA 1979)
- Evans v. Fla. Indus. Comm'n, 196 So. 2d 748 (Fla. 1967)
- Chicken'n'things & Ins. Co. of N. Am. v. Martha Murray & the Fla. Dep't of Commerce, 329 So. 2d 302 (Fla. 1976)
- Sizemore v. Canaveral Port Auth., 332 So. 2d 23 (Fla. 1976)