Davis v. Bonded Transp., Inc.

• Decision Date: 10 January 1991
• Docket Number: No. 89-2836,89-2836
• Citation: 16 Fla. L. Weekly 175,573 So.2d 373
• Parties: 16 Fla. L. Weekly 175 Arthur DAVIS, Appellant, v. BONDED TRANSPORTATION, INC., and The Travelers, Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 373

573 So.2d 373

16 Fla. L. Weekly 175

Arthur DAVIS, Appellant, v. BONDED TRANSPORTATION, INC., and The Travelers, Insurance Company, Appellees.

No. 89-2836.

District Court of Appeal of Florida,

First District.

Jan. 10, 1991.

Woodburn S. Wesley, Jr., and Mary Koch Polson of Cotton, Wesley, Poche & Gates, Shalimar, for appellant.

Thomas F. Condon, of Mitchell & Condon, P.A., Pensacola, for appellees.

JOANOS, Judge.

Claimant appeals a workers' compensation order which denied his claim for permanent total disability benefits with prejudice. We affirm the order with respect to the denial of permanent total disability status, but strike that portion of the order purporting to deny the claim with prejudice.

The 52-year old claimant suffered a compensable back injury on September 14, 1985. At the time of his injury claimant had been working as operations manager for employer Bonded Transportation, Inc. He had been an employee of Bonded for twenty-two years.

On October 9, 1985, claimant underwent surgery to repair two herniated discs resulting from the work-related injury. During his recuperative and rehabilitative period, claimant was treated by two orthopedic surgeons and a specialist in physical medicine and rehabilitation. His treating orthopedist, Dr. Hodnett, opined that claimant reached maximum medical improvement as of September 4, 1986, with a one hundred percent permanent impairment rating of the body as a whole with respect to his former job with Bonded, but with a twenty percent impairment of the whole body generally. On June 21, 1986, Dr. Hodnett released claimant to return to sedentary work, with restrictions on bending, squatting, and lifting.

Dr. VerVoort, rehabilitation specialist, examined claimant on November 11, 1988, at the request of employer/carrier. Dr. VerVoort gave claimant a seventeen percent whole man permanent impairment rating. Dr. VerVoort stated that claimant could not return to the type of work he was doing before his accident and injury, but opined that claimant can perform light to light/medium work on a full-time basis. Dr. VerVoort explained that his opinion was based solely on his assessment of claimant's physical capacities, and did not take into account his age or educational level as that would impact upon his ability to obtain a job.

In late 1985, claimant began working with rehabilitation counselors in an effort to return to work. At the direction of these counselors, claimant attended a ten-week seminar on reentry into the job market, attended a weight loss program, learned to write a resume, and checked on job leads. In addition, claimant was referred to Southeastern Vocational Services (SVS) for a comprehensive vocational evaluation. This evaluation revealed that claimant is of average intelligence, and functions within the range of seventh to eleventh grade level. Claimant scored lowest in mathematics; his highest score was in reading comprehension. He scored very low in clerical aptitudes, and has a particular problem with fine motor dexterity.

When asked his conclusions regarding claimant's employability and the area in which he could be employed, Mr. Gilmartin, the SVS director, expressed concern about Dr. VerVoort's opinion that claimant was capable of full-time employment. Mr. Gilmartin and his staff found that claimant's endurance was not sufficient to last a whole day at work on an everyday basis. Mr. Gilmartin also expressed concern about the four-year period that claimant had been away from work, observing that the longer one is away from work due to injury, the more difficult it becomes to return. It was Mr. Gilmartin's belief that claimant was not likely to return to work.

There is uncontroverted record evidence that since the summer of 1986, claimant has conducted a conscientious and extensive work search. He returned to work with Bonded in January 1988, but worked only one day as a packer. Although the one day of work left him sore and stiff, claimant called Bonded every morning in an effort to be placed back on the work schedule, until he was told not to do so by the employer. Despite his extensive work search efforts, claimant's only job offer since his work injury was the one day of work at Bonded.

The judge of compensation claims determined that claimant is not permanently and totally disabled, and denied the claim with prejudice. In the order denying benefits, the judge noted that given claimant's average intelligence and excellent reading skills, he would be an excellent candidate for "true rehabilitation" as opposed to the job placement assistance...