Borges v. Osceola Farms Co., No. 93-2029

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ERVIN; JOANOS; BARFIELD; BARFIELD
• Citation: 651 So.2d 173
• Parties: 20 Fla. L. Weekly D502 Angel BORGES, Appellant, v. OSCEOLA FARMS COMPANY & National Employers Company, Appellees.
• Decision Date: 21 February 1995
• Docket Number: No. 93-2029

Page 173

651 So.2d 173 20 Fla. L. Weekly D502 Angel BORGES, Appellant,
v.
OSCEOLA FARMS COMPANY & National Employers Company, Appellees. No. 93-2029. District Court of Appeal of Florida,
First District. Feb. 21, 1995.
Rehearing Denied March 27, 1995.

Page 174

Roberto Rigal, Jr., of Levin, Busch, Schnepper & Stein, P.A., Miami, for appellant.

Timothy M. Basquill of Beisler & Beisler, West Palm Beach, for appellees.

ERVIN, Judge.

Angel Borges, the claimant below, appeals from a workers' compensation order denying permanent total disability (PTD) benefits and reimbursement for medical bills for services rendered by Dr. Cohen. Because the judge of compensation claims (JCC) relied solely on claimant's work search in denying PTD benefits and did not consider other relevant and pertinent factors, we reverse the denial of PTD benefits. We affirm, however, the denial of payment for Dr. Cohen's past bills, as the doctor was not authorized, alternative chiropractic care was offered and the treatment was not rendered in an emergency situation.

The JCC correctly found that there was no medical evidence to support a finding of PTD; however, he erred by denying PTD benefits based on a finding that claimant's work search was not sufficiently exhaustive and lengthy to warrant such an award. In so saying, we note that all the physicians' testimony was presented by deposition, as was that of the vocational experts. Consequently, this court's vantage point is not inferior to that of the JCC in considering such evidence. Metropolitan Dade County v. Pope, 615 So.2d 856, 857 (Fla. 1st DCA 1993); Severini v. Pan Am. Beauty Sch., Inc., 557 So.2d 896, 897 (Fla. 1st DCA 1990); Haga v. Clay Hyder Trucking Lines, 397 So.2d 428, 431 (Fla. 1st DCA), review denied, 402 So.2d 609 (Fla.1981).

The law is clear that in passing on the sufficiency of a work search, the JCC must decide whether claimant's efforts were reasonable and performed in good faith in light of all the relevant circumstances: physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence. Edwards v. Caulfield, 560 So.2d 364, 375 (Fla. 1st DCA 1990). Accord Gill v. USX Corp., 588 So.2d 1035, 1037-38 (Fla. 1st DCA 1991) (adequacy of

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work search is just one factor in determination of benefits; other factors include age, education, work history, etc.); GCC Beverage v. Simmons, 571 So.2d 59, 60 (Fla. 1st DCA 1990) (adequacy of work search is a factual matter which is dependent on the totality of the circumstances); Flesche v. Interstate Warehouse, 411 So.2d 919, 922 n. 3 (Fla. 1st DCA 1982) (there are a number of criteria by which wage-earning capacity must be measured and no single factor is conclusive).

Here the evidence discloses that claimant is presently 69. He neither speaks nor writes English, nor does he have the equivalent of a high school education. His work history consists mainly of manual labor. Although his physical impairment is only six percent, it nevertheless restricts him from carrying out his former employment, as well as...