Bill's Equipment and Rentals v. Teel, BJ-407

• Decision Date: 20 November 1986
• Docket Number: No. BJ-407,BJ-407
• Citation: 498 So.2d 536,11 Fla. L. Weekly 2448
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 2448 BILL'S EQUIPMENT AND RENTALS and U.S. Fidelity & Guaranty Company, Appellants, v. Charles A. TEEL and Division of Workers' Compensation, Appellees.

Page 536

498 So.2d 536

11 Fla. L. Weekly 2448

BILL'S EQUIPMENT AND RENTALS and U.S. Fidelity & Guaranty Company, Appellants, v. Charles A. TEEL and Division of Workers' Compensation, Appellees.

No. BJ-407.

District Court of Appeal of Florida First District.

Nov. 20, 1986.

Rehearing Denied Dec. 24, 1986.

John F. McMath, P.A., Miami, for appellants.

Thomas C. Johnson of Dunn and Johnson, P.A., Miami, for appellees.

SMITH, Judge.

Employer/Carrier (E/C) seek review of a workers' compensation order awarding claimant permanent total disability benefits and claimant's counsel an attorney's fee in the amount of $15,000.00. We affirm on both issues.

Claimant, a sixty-five year old male with two and one-half years of education, suffered a compensable back injury on July 9, 1979, when he tried to unroll and cut a heavy piece of pump hose. Claimant was treated by several doctors for his back injury and preexisting osteoarthritis. All four doctors gave claimant a permanent physical impairment rating ranging from five percent (5%) to twenty-six percent (26%), and one doctor stated that claimant's condition would progressively deteriorate. The doctors instructed claimant to avoid repetitive twisting, bending, and lifting more than ten pounds. Claimant also suffers from constant back pain which is intensified by prolonged walking, sitting and driving.

Claimant has worked most of his life as a heavy equipment mechanic, but he also has some experience as a gas station attendant, car washer, and farm hand. After his accident, he tried to do some auto mechanic work at home, but it was too painful. He then sought similar work from several prospective employers.

E/C first contend that neither the medical testimony nor the quality of claimant's work search supports the deputy commissioner's finding of permanent total disability. While there was no specific medical evidence of claimant's total inability to work, the physical restrictions placed on his activities had the effect of eliminating all types of employment within claimant's capacity and for which he would be qualified. Claimant is hampered by his limited schooling and advanced age, and has no job skills which do not involve repetitive twisting, bending, and lifting more than ten pounds. The record reveals that claimant sought employment commensurate with his work experience and job skills, while the employer made no effort to obtain employment for claimant. Based on these facts, the deputy commissioner did not err in excusing claimant's failure to more actively seek employment. Where an effort to find employment would be a futile and useless gesture, the deputy may excuse claimant from the requirement of a work search as a predicate for disability benefits. Fairchild Industries, Inc. v. Sievers, 447 So.2d 393 (Fla. 1st DCA 1984). We conclude that the deputy did not err in finding claimant unemployable and totally disabled.

E/C next contend that the amount of attorney's fee awarded was excessive. The present value of the benefits obtained for claimant was $61,500.00. At the hearing, claimant's counsel submitted an affidavit in which he described his activities during the seventy hours he expended on...