Buro v. Dino's Southland Meats

• Decision Date: 12 January 1978
• Docket Number: No. 51866,51866
• Parties: Jean BURO, Petitioner, v. DINO'S SOUTHLAND MEATS, Cosmopolitan Mutual Insurance Company, and the Industrial Relations Commission, Respondents.
• Court: Florida Supreme Court

Page 874

354 So.2d 874

Jean BURO, Petitioner, v. DINO'S SOUTHLAND MEATS, Cosmopolitan Mutual Insurance Company, and the Industrial Relations Commission, Respondents.

No. 51866.

Supreme Court of Florida.

Jan. 12, 1978.

Laurence E. Windsor, of the Law Offices of Israel Abrams, North Miami Beach, for petitioner.

Michael J. D'Agostino, of Pyszka, Kessler, Adams & Solomon, Miami, for respondents.

SUNDBERG, Justice.

By petition for writ of certiorari we are asked to review an order of the Industrial Relations Commission reversing a Workmen's Compensation award for failure of the Judge of Industrial Claims to state sufficient facts for review by the Commission and for his failure to make a determination as to whether petitioner made a bona fide effort to obtain employment. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27, Florida Statutes (1975). In accordance with Florida Appellate Rule 3.10 e. we have dispensed with oral argument.

Petitioner sustained injuries arising out of and in the course of her employment as a cashier in a meat market when she slipped and fell on a greasy floor at her employer's premises on June 12, 1975. Petitioner's injuries affected her lower back, neck, shoulders, and legs. She was treated by several physicians approved by the carrier, including an orthopedic surgeon, until July 24, 1975, when the orthopedic surgeon concluded that she had reached maximum medical improvement. However, commencing August 13, 1975, petitioner came under the care of Dr. Kenneth Pollock, a chiropractic physician, because she continued to experience pain or discomfort. Dr. Pollock continued treating petitioner until December 12, 1975, at which time he discharged her as having reached maximum medical improvement. In the interval between the injury and December 12, 1975, petitioner attempted on several occasions to resume her employment as a cashier but found that she was neither able to stand for protracted periods of time nor able to perform the bending required by the job. However, petitioner did return to work with her employer on December 15, 1975, performing bookkeeping functions, which permitted her to remain seated in the course of her job. In her capacity as bookkeeper, petitioner works three or four hours per day, receiving a salary of $50 per week. Petitioner's weekly wage at the time of the injury was $100 per week.

Dr. Howard Kurzner, the orthopedic surgeon approved by the carrier, reexamined petitioner on December 9, 1975. Based on the reexamination, Dr. Kurzner reaffirmed his opinion that petitioner could have returned to work on July 24, 1975, and opined that she was left with no permanent partial disability as a result of the industrial injury. Subsequent to December 12, 1975, Dr. Pollock referred petitioner to his associate, Dr. David Boschowitz, for disability evaluation in that Dr. Boschowitz was a board-certified chiropractic orthopedist. Based on the AMA Guide to Evaluation of Permanent Impairments, Dr. Boschowitz was of the opinion petitioner had sustained a ten percent permanent partial physical impairment of the body as a whole due to the industrial accident.

Pertinent to our review are the following portions of the order of the Judge of Industrial Claims:

"4. As a result of her accident, claimant suffered temporary total disability from June 13, 1975 to December 13, 1975, at which time I find she reached her maximum medical improvement. This finding is based on the testimony by deposition of Dr. Kenneth Pollock, notwithstanding the opinion of Dr. Howard Kurzner.

"5. Having found that the claimant had reached her maximum medical improvement on December 13, 1975, I further find that she has sustained a 10% Permanent partial physical impairment of the body as a whole. This finding is made notwithstanding the opinion of Dr. Howard Kurzner, who indicated that the claimant had sustained no permanent disability, but is based on the testimony by deposition of Dr. David Boschowitz.

"6. The claimant is a 59 year old female who attended one year of high school and who also has a limited background as a dental assistant. Throughout most of her adult life she has worked in her capacity as a housewife although for approximately the last ten years she has been employed as a cashier and hostess in two restaurants, until her recent employment with the present employer with whom she was a cashier whose duties included waiting on customers at the meat market. She complains of low back pain as well as occasional pain in her neck and shoulders. She also complains of pain when she is required to do any heavy lifting, bending or standing for long periods of time. The claimant testified, and I so find, that she has returned to work with the employer, Dino's Southland Meats, earning $50.00 per week in the capacity of a bookkeeper which is primarily a sedentary job and is compatible with her stated physical condition. Having considered the above stated age, education and industrial background together with the 10% Permanent partial physical impairment rating, I find that the claimant sustained a 50% Permanent partial disability based on a loss of future wage earning capacity. I recognize, and it should be noted, that the claimant's husband is the president of the corporation which is the employer, and therefore, the claimant's employment could be considered as sheltered. I find, however, that her employment is not sheltered and that her $50.00 per week income accurately reflects her earning capacity."

Upon review by the Industrial Relations Commission, the following points were...