Entenmann's Bakery v. Smith, 92-751
| Decision Date | 18 June 1993 |
| Docket Number | No. 92-751,92-751 |
| Citation | 620 So.2d 1049 |
| Parties | 18 Fla. L. Week. D1455 ENTENMANN'S BAKERY and the Hartford Insurance Company, Appellants, v. Daniel SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Jorge A. Pena, William T. Goran & Ivette E. Linares of Reinart, Perez & Goran, P.A., Coral Gables, for appellant.
Donald D. Gillis of Donald D. Gillis, P.A., Miami, for appellee.
The Employer/Carrier ("E/C") appeal from an order of the Judge of Compensation Claims ("JCC") awarding temporary partial disability (wage-loss) benefits, wage-loss benefits, payment of medical bills, and interest, and imposing penalties. The E/C do not challenge the award of temporary partial disability benefits. Section 440.15(4)(a), Florida Statutes (Supp.1988). We affirm the order in all respects except for the award of wage-loss benefits, which was premature because Claimant had reached maximum medical improvement ("MMI") only for his orthopedic condition but not for his psychiatric condition. Copeland Steel v. Miles, 536 So.2d 1179, 1180-81 (Fla. 1st DCA1989); Fuchs Baking Co. v. Estate of Szlosek, 466 So.2d 415 (Fla. 1st DCA1985); Cumberland Farm Food Stores v. Meier, 408 So.2d 700 (Fla. 1st DCA1982). See section 440.15(3)(b), Florida Statutes (Supp.1988).
In the interest of judicial efficiency relating to proceedings likely to arise concerning Claimant's entitlement to wage-loss benefits, we must comment on the E/C's first argument as to whether Claimant's 1989 accident meets the statutory requirements governing "permanent impairment." A recitation of key facts is necessary. Claimant, Daniel Smith, has a history of work-related back injuries. In 1982, he commenced treatment with Dr. Hinds, an orthopedic surgeon, for his back problems generally, not for any specific injury. Hinds performed a spinal fusion in 1985 in the same area involved in Claimant's 1967 surgery. Claimant was deemed to have reached MMI on February 8, 1985, and Hinds released him with a 25% permanent impairment and restrictions upon lifting more than 50 pounds. Following the discharge, Claimant returned to employment.
In 1989, he went to work for Appellant/Employer, initially as a mechanic's helper and later as a semi-tractor trailer truck driver. On August 16, 1989, in the course and scope of employment, Claimant was involved in a vehicular collision. He returned to Dr. Hinds for treatment beginning in September 1990. The doctor released him on November 21, 1990, for "regular duty with restrictions": a 25% permanent impairment rating and a lifting limit of 50 pounds, with no prolonged bending or stooping and no overhead reaching or climbing. Dr. Hinds considered the 1990 restrictions to be "no worse than the restrictions in the February of 1985 release." Hinds last saw Claimant on January 9, 1991, and felt he was orthopedically at MMI then. Hinds testified that Claimant could work in a position like the one with Employer, but that he could not do so symptom-free because of the presence of truck vibrations and the necessity of long periods of sitting during inter-city travel. The doctor acknowledged that Claimant is "at a higher risk for recurrent problems" if he resumes his prior work activities. Asked whether Claimant can physically perform his prior duties, Hinds responded affirmatively. However, he qualified that pronouncement as follows: Given Claimant's past medical history and his back condition, Dr. Hinds testified that what Claimant has to do, in addition to driving, constitutes factors that are going to determine how long he can engage in that activity. He stated, within a reasonable degree of medical probability, that after the 1989 accident, the length of time Claimant could engage in various employmental activities would be diminished when compared to the facts upon discharge in 1985.
Before the 1989 accident, Claimant's work frequently required him to drive uninterruptedly for periods of up to 5 1/2 hours because of the rigid timetable for delivery of baked goods in southern and central Florida. Due to medication prescribed for a psychiatric condition that developed following the 1989 accident, Claimant experiences drowsiness as a side effect. He testified that during simulated driving procedures, he could not sit for more than 1 1/4 hours. Dr. Trapana, an orthopedic surgeon, recommended that Claimant not drive long distances because of the back problems. We find the record supports the finding that
Claimant's current physical restrictions prevent him from driving a semi-tractor trailer continuously in excess of two hours. Additionally, Claimant's current medication can cause drowsiness, which would be unacceptable if operating heavy equipment or a semi-tractor trailer.
Wage-loss benefits were awarded from May 21, 1991, through the date of hearing, excluding the period during which Claimant received...
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Rojas v. United Sheet Metal, 1D01-4561.
...permanent disability benefits cannot be awarded prior to the claimant's reaching MMI from both disorders." Entenmann's Bakery v. Smith, 620 So.2d 1049, 1051 (Fla. 1st DCA 1993)(emphasis in original). The fact that the claimant's work restrictions all stem from his physical injuries rather t......