LONE STAR OF FLORIDA AND SCOTT WETZEL SERVICES, APPELLANTS,
v.
WARREN BUTLER, APPELLEE
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Lone Star of Florida and Scott Wetzel Services appealed a workers' compensation order finding the claimant permanently totally disabled after a crane hook injury. The court affirmed the PTD finding but reversed the date of maximum medical improvement from July 9, 1980 to May 29, 1980, eliminating temporary total disability benefits owed between those dates.
The court affirmed that the claimant is permanently totally disabled based on substantial evidence that he conducted a good faith job search and cannot perform light work. However, the court reversed the date of MMI to May 29, 1980, as testified by the treating physician Dr. Yates, finding the examining physician's testimony insufficient to contradict this date.
[1] A claimant's good faith job search, coupled with physical restrictions and problems, can support a finding of permanent total disability.
[2] A treating physician's testimony regarding the date of maximum medical improvement is generally entitled to greater weight than that of an examining physician who saw the…
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Join FLexlaw to unlock all legal intelligence“Claimant did make a good faith job search and .. . with Claimant's restrictions and problems he is patently disabled.. .. Claimant cannot even do light work on a steady basis.”
Establishes the basis for the permanent total disability finding, supported by the claimant's job search efforts and demonstrated work restrictions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant, a 59-year-old cement truck driver, was struck in the back of the head by a 300-pound crane bucket hook on March 21, 1979. The claimant m…
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JOANOS, Judge.
The employer/carrier appeal the deputy commissioner’s order finding the claimant permanently totally disabled, setting July 9, 1980, as the date of maximum medical improvement, ordering the payment of temporary total disability benefits from May 29, 1980, to July 9,1980, and reserving jurisdiction to determine whether employer/carrier are entitled to credit for permanent disability payments made between May 29, 1980 and July 9, 1980. We affirm in part and reverse in part.
Claimant, at the time of the injury, March 21, 1979, was a 59 year old cement truck driver. He was standing beside his truck when a bucket hook from a crane hit him in the back of the head. It was indicated that the hook weighed approximately 300 pounds. Competent substantial evidence supports the deputy’s conclusion that claimant is PTD. Although appellants argue that claimant did not make a work search adequate to show loss of wage earning capacity, the record supports the deputy’s findings that “Claimant did make a good faith job search and .. . with Claimant's restrictions and problems he is patently disabled.. .. Claimant cannot even do light work on a steady basis.” See Red Oak Farms, Inc. v. Scott, 408 So. 2d 841 (Fla. 1st DCA 1982); Lancaster Youth Development Center v. Waters, 381 So. 2d 1156 (Fla. 1st DCA 1980); Caruso v. Crown Liquors, Inc., 379 So. 2d 1317 (Fla. 1st DCA 1980).
With regard to the date of MMI, however, we agree with appellants’ argument that the date should have been set at May 29, 1980. The deputy’s selection of the date of MMI was based on Dr. Ortiz’s testimony. Dr. Ortiz, an examining physician, saw claimant only twice, on July 9, 1979, and July 9, 1980. He gave an opinion, following the second visit, that claimant had reached MMI on or before July 9,1980, and that by this second visit, everything that should have been done for the claimant had been done. The treating physician Dr. Yates, on the other hand, was in a position to set a definite date of MMI, and he testified it occurred on May 29, 1980. Dr. Ortiz’s opinion does not conflict with Dr. Yates’ opinion.
In light of our determination that the date of MMI should have been May 29, 1980, further benefits for temporary total disability were not due, therefore no question remains as to any credit due employ er/carrier for payments attributed to permanent disability made after May 29, 1980.
The permanent total disability award is AFFIRMED. The order is REVERSED as to the date of MMI, the payment of additional temporary total disability benefits, and the reservation of jurisdiction to resolve the credit issue.
THOMPSON and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Caruso v. Crown Liquors, Inc., 379 So. 2d 1317 (Fla. 1st DCA 1980)
- Cloud v. Cloud, 381 So. 2d 1156 (Fla. 2d DCA 1980)
- Lancaster Youth Dev. Ctr. & Kemper Ins. Co. v. Waters, 381 So. 2d 1156 (Fla. 1st DCA 1980)
- RED OAK Farms, Inc. v. Scott, 408 So. 2d 841 (Fla. 1st DCA 1982)