DEPARTMENT OF TRANSPORTATION, DIVISION OF RISK MANAGEMENT, APPELLANT,
v.
CHARLIE E. FERRELL, APPELLEE
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The Florida District Court of Appeal affirmed a workers' compensation order awarding permanent total disability (PTD) benefits to an employee who suffered a work-related back injury followed by an unrelated vision loss, based on 100% diminution of wage-earning capacity. The court found competent substantial evidence supported the deputy commissioner's PTD determination despite procedural irregularities in the medical evidence presentation.
The court affirmed the PTD determination based on 100% loss of wage-earning capacity. The court held that although the claimant did not conduct an adequate work search, a work search would have been futile under the circumstances, and competent substantial evidence supported the deputy's finding of PTD.
[1] A workers' compensation order finding permanent total disability based on a 100% diminution of wage earning capacity will be affirmed if supported by competent substantia…
[2] A claimant's failure to conduct an adequate work search may be excused if the circumstances indicate such a search would have been futile.
Previewing 2 of 4 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“Claimant sustained a compensable injury to his back on February 21, 1978. Approximately a year later, claimant suffered a substantial loss of vision due to a sudden onset of cataracts, a condition unrelated to the accident.”
Establishes the sequence of events: the work-related injury followed by an unrelated vision loss that contributed to the PTD determination.
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Join FLexlaw to unlock all legal intelligenceClaimant sustained a compensable back injury on February 21, 1978. Approximately one year later, claimant suffered a substantial loss of vision due to…
The full statement of facts, procedural history, and disposition for this case are member content.
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THOMPSON, Judge.
The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred in finding claimant permanently totally disabled (PTD) based on a 100% diminution of wage earning capacity. We affirm.
Claimant sustained a compensable injury to his back on February 21, 1978. Approximately a year later, claimant suffered a substantial loss of vision due to a sudden onset of cataracts, a condition unrelated to the accident. Claimant was subsequently awarded temporary total disability (TTD) benefits due to his back injury. However, the award of TTD benefits was reversed since all the medical testimony indicated that the claimant had reached maximum medical improvement (MMI). Department of Transportation v. Ferrell, 393 So. 2d 627 (Fla. 1st DCA 1981). Due to the conflict in the medical testimony as to the actual date of MMI, the cause was remanded to the deputy.
On remand the deputy found that claimant had reached MMI on December 28,1978 and that claimant was PTD based on a 100% diminution of wage earning capacity. The order indicates that the deputy found the date of MMI, December 28, 1978, from the deposition of Dr. Freed.
However, we note that Dr. Whittaker, not Dr. Freed indicated that claimant reached MMI by December 28, 1978.
Furthermore, the order indicates that the deputy made the finding of PTD from the deposition of Dr. Henderson.
We note, with some disapproval, that the deposition of Dr. Henderson which related to this finding was not transcribed or filed with the Department of Labor and Employment Security, Division of Workers’ Compensation until after the date of the instant order.
However, Dr. Henderson’s medical report was before the deputy at the time the order was entered. Since this report contains competent substantial evidence to support the deputy’s finding of PTD, we affirm the order. Although claimant did not make an adequate work search, it is clear that under the circumstances a work search would have been futile. See Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976).
Accordingly, since there is competent substantial evidence to support the deputy’s order, we affirm the finding of PTD based on a 100% loss of wage earning capacity.
JOANOS and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Sizemore v. Canaveral Port Auth., 332 So. 2d 23 (Fla. 1976)
- Dep't OF Transp. v. Ferrell, 393 So. 2d 627 (Fla. 1st DCA 1981)