City of Miami v. Tombley
| Decision Date | 28 August 1992 |
| Docket Number | No. 91-1877,91-1877 |
| Citation | 605 So.2d 895 |
| Court | Florida District Court of Appeals |
| Parties | 17 Fla. L. Week. D2023 CITY OF MIAMI, Appellant, v. John TOMBLEY, Appellee. |
A. Quinn Jones III, City Atty., Theresa L. Girten, Asst. City Atty., Miami, for appellant.
Mark L. Zientz of Williams and Zientz, Miami, for appellee.
The former employer/self-insured, City of Miami ("City" or "Appellant"), appeals the order of the Judge of Compensation Claims ("JCC") requiring Appellant 1) to pay Claimant permanent total disability ("PTD") benefits, commencing February 12, 1976, and continuing to date, 2) to pay Claimant's wife for nursing services at the federal minimum wage rate in effect on July 28, 1987, for 40 hours per week, 3) to administratively pay the outstanding medical and hospital costs incurred by Claimant to date, including psychiatric hospitalization and treatment, and to continue to provide Claimant with medical treatment and care as his injury requires, and 4) to pay costs of the proceeding below. We reverse and remand for the JCC to make further specific findings consistent with this opinion.
While he was a motorcycle policeman employed by the City, Claimant suffered a compensable industrial accident on March 31, 1970, resulting in injury to his lower and middle back. Appellant paid temporary total disability (TTD) benefits from the date of the accident through February 12, 1976, when the City administratively accepted Claimant as PTD. Permanent partial disability (PPD) benefits were paid from the date of the accident through November 1975. The City Pension Board granted a disability pension as of May 8, 1971. Claimant also received other supplemental disability benefits, and reached maximum medical improvement on April 5, 1975. PTD benefits were paid from February 12, 1976, until 1987, when the City filed a notice to contravene all benefits as of June 27, 1978. The City suspended Claimant's medical and PTD benefits in August 1987, alleging he had demonstrated a greater wage-earning capacity and had actually worked more hours after being accepted as PTD. See Malm v. Holiday Theatres, 560 So.2d 270, 271 (Fla. 1st DCA 1990); Hall v. City of Jacksonville, 443 So.2d 326, 327 (Fla. 1st DCA 1983) (); Lister v Walker, 409 So.2d 1153, 1155 (Fla. 1st DCA 1982). Compensation benefits were cut off in December 1987. Claimant maintained the City was aware of his subsequent employment, although he never specifically notified the City.
Appellant based its termination of benefits on evidence that Claimant was employed in various capacities with other employers after the 1970 accident. See City of Miami v. Knight, 510 So.2d 1069 (1st DCA), rev. den., 518 So.2d 1276 (Fla.1987), reversed on other grounds, Barragan v. City of Miami, 545 So.2d 252 (Fla.1989); see also section 440.15(1), Florida Statutes (1987). Claimant testified he began working as a credit card fraud investigator at a division of Southeast Bank six or eight months after the March accident. Barnett Bank ("Barnett") hired him in April 1975 and transferred him to the Barnett Visa Center in April 1976. He worked for Barnett for between four and five years. Claimant also held a part-time job as an investigator for the Carillon Hotel but left following a 1978 reduction in personnel. He then performed security work for the Doral Hotel on three nights a week, from 6:00 P.M. to 2:00 A.M., during the tourist season. He was dismissed from Barnett for violating company rules and has not been employed since 1979.
Claimant underwent numerous lumbar spine or cervical spine surgeries, and was treated for multiple fractures, during the decade following his 1970 back injury. On June 27, 1978, he was involved in an automobile accident that, according to Claimant, occurred shortly after he left Mercy Hospital from a scheduled medical appointment with Dr. Kallan, an orthopedic surgeon. Claimant was admitted to the hospital complaining of pain in his lower back, neck, elbow and leg. He filed a workers' compensation claim with Barnett that resulted in a $7,500 "washout" payment to Claimant.
On November 19, 1979, Claimant sustained injuries after running a red light in a Barnett company car. Initially, he alleged the accident occurred while he was going to interview a witness concerning a credit fraud investigation. His explanation changed in several material respects during the subsequent investigation, however, and the claim was denied in 1981 because it did not relate to the course and scope of employment.
Until 1980, when Claimant and his family moved to Georgia, he remained under the care of Dr. Kallan. Following the 1970 accident, Claimant received the prescription drug Thorazine in high doses over a 10-year period as a muscle relaxant to treat muscle spasms. His neurologist in Georgia, Dr. Pedersen, testified about an October 21, 1971, Mercy Hospital discharge summary record indicating Claimant was "positively snowed on Thorazine in the hospital." Pedersen said Claimant was diagnosed in 1986 as having tardive dystonia and tardive dyskinesia, movement disorders that resulted from the "cumulative effect of that medication." Dr. Pedersen referred Claimant to a psychiatrist for treatment of severe depression as a result of his medical condition. Pedersen testified that the psychiatrist and Claimant's wife had provided "assistance in the prevention of suicide." His neck is involuntarily held in a fixed position and he has abnormal involuntary movements of the body and tongue. Dr. Pedersen characterized Claimant...
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