Fairchild Aircraft v. Raybon, 92-3812
| Decision Date | 07 April 1994 |
| Docket Number | No. 92-3812,92-3812 |
| Citation | 634 So.2d 801 |
| Parties | 19 Fla. L. Weekly D769 FAIRCHILD AIRCRAFT and American International Adjusting Company, Appellants, v. Ronald G. RAYBON, Appellee. |
| Court | Florida District Court of Appeals |
Roger M. Sherman of McConnaughhay, Roland, Maida, Cherr & McCranie, P.A., Pensacola, for appellants.
James F. McKenzie of McKenzie & Soloway, P.A., Pensacola, for appellee.
Appellants, the employer and carrier (E/C), seek reversal of a workers' compensation order awarding permanent total disability (PTD) benefits. We affirm.
The claimant was injured in two separate accidents, one in September 1988 when he injured his right shoulder, and the second when he injured his left knee in September 1989. The combination of the two industrial accidents left claimant unable to continue working as a sheet metal mechanic. After maximum medical improvement (MMI) was reached in May 1990, a two-year work search was undertaken, but it proved unsuccessful. The E/C referred claimant to rehabilitation consultants who performed an evaluation and made efforts to locate a job for the claimant, without success. The consultant assigned to claimant's case did not believe there was any hope of finding work for the claimant in claimant's home area, Crestview. The claimant also began a course of training in taxidermy, but discontinued this after he found that the work aggravated his shoulder. The claimant thereafter filed a claim for PTD benefits.
Prior to the final hearing counsel for the parties entered into a pretrial stipulation as ordered by the Judge of Compensation Claims (JCC). In this stipulation, approved by order of the judge, no mention was made by either the claimant or the E/C concerning the need for an evaluation for rehabilitation, or further training and education. The case then proceeded to final hearing, at which the claimant was the only live witness, all other testimony and medical evidence being presented by way of deposition. Following the testimony of the claimant, the judge inquired of counsel as to the position of the respective parties in the case. Claimant's counsel stated that claimant claimed the evidence warranted a finding of permanent total disability. The E/C's counsel opposed this view, pointing out the relatively minor degree of physical impairment suffered by the claimant. In response, the judge agreed with the E/C's counsel, but inquired In response, the E/C's counsel stated: "Well, one, you know, I'm--the statute suggests that you may want to refer him for some sort of comprehensive evaluation before an adjudication of permanent and total, you know, and that's obviously up to you." In further discussion between the judge and counsel, the judge expressed concern that the claimant had done a two-year work search, and had tried rehabilitation that had done no good. The judge also stated that he would not refer the claimant to rehabilitation because he had already been referred to rehabilitation, and that whether through the fault of the carrier or not, whatever had been done for the claimant "wasn't very good." At the conclusion of arguments of counsel, the judge indicated that he would enter an order finding the claimant permanently, totally disabled.
In his final order awarding PTD, the JCC discussed numerous factors supporting the claimant's claim. The findings and conclusions of the JCC which are most pertinent to the issue raised on appeal are found in two key paragraphs, which read as follows:
11(d) The Claimant's physicians are of the consensus that he cannot return to the heavy manual labor he has performed in the past. The physical limitations further interfere with his ability to perform many light or sedentary jobs since he cannot use his dominant hand for repeated activities and must change his position frequently. As noted above, he is not very suited by his limited education and work background for many light or sedentary jobs. The injuries, coupled with his background, have severely handicapped Claimant's ability to compete in the open labor market. Based upon those severe vocational handicaps, coupled with Claimant's long, extensive and unsuccessful job search, Buena Vista Palace v. Lopez, 557 So.2d 948 (Fla. 1st DCA 1990); Bill's Equipment and Rentals v. Teel, 498 So.2d 536 (Fla. 1st DCA 1986); Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986), and the rehabilitation counselor's opinion that there is no possibility of finding Claimant a job within his limitations in the relevant locality, Seligman & Latz, Inc. v. Panell, 530 So.2d 1032 (Fla. 1st DCA 1988), it is clear that Claimant has satisfactorily proven his entitlement to permanent total disability.
12. The Employer/Carrier contends that the undersigned should refer the Claimant for vocational evaluation and rehabilitation before adjudication of permanent total disability. The Employer/Carrier has had in excess of two (2) years since maximum medical improvement to evaluate and attempt rehabilitation of the Claimant. Other than the failed attempt at the taxidermy course which was initiated and accomplished only with the persistence of the Claimant, the Employer/Carrier has made no attempt to evaluate and rehabilitate the Claimant. It is only in the face of a likely permanent total disability adjudication that the Employer/Carrier has raised this issue. There is no evidence that a comprehensive vocational evaluation and rehabilitation would be successful with this Claimant. Further, the Employer/Carrier has failed to undertake this for over two years and instead only attempted job placement. It would be unfair to the Claimant to delay his receipt of permanent total disability benefits in the face of the Employer/Carrier's inaction in this regard in the past. However, hopefully, this Order will spur the Employer/Carrier to now attempt comprehensive rehabilitation which will lead to successful return to work for this Claimant. W.R. Grace & Co. v. Marshall, 405 So.2d 444 (Fla. 1st DCA 1981).
The E/C present a single issue on appeal. They contend that the JCC erred in entering an order adjudicating the claimant PTD without first determining whether there is a reasonable probability that the claimant could be rehabilitated through training and education to the point of achieving suitable gainful employment. In so ruling, the E/C contend, the JCC disregarded the mandate of section 440.49(1)(c), Florida Statutes, Chapter 89-289, Laws of Florida (1989), effective October 1, 1989.
As amended, section 440.49(1)(c) provides:
Prior to entering an order adjudicating an injured employee to be permanently and totally disabled, the judge of compensation claims shall first determine whether there is a reasonable probability that, with appropriate training and education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of the individual to undertake such training or education.
The E/C contend that the above-quoted subsection effectively overruled this court's decision in W.R. Grace v. Marshall, 405 So.2d 444 (Fla. 1st DCA 1981) in which this court, construed the same subsection as it existed prior to the 1989 amendments as permitting, under the facts presented, a final order awarding PTD and at the same time ordering that the claimant be evaluated for vocational rehabilitation.
For comparison, we think it is pertinent to consider the language of section 440.49(1)(c) in effect when W.R. Grace was decided. Section 440.49(1)(c), enacted in 1979 as Chapter 79-40, Sec. 37, Laws of Florida, provided:
Prior to adjudicating an injured employee to be permanently and totally disabled, the Deputy Commissioner shall determine whether there is a reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
The W.R. Grace decision held that the deputy commissioner (now JCC) complied with the statute by determining in the same order that the claimant probably could and in furtherance of his best interest should be rehabilitated with appropriate training, and that the claimant was permanently and totally disabled as well due to loss of wage earning capacity. The court pointed out that to require a rehabilitation evaluation and reference to an appropriate training facility as a condition to recognizing a claimant's present permanent disability, "would leave claimant either without compensation for his present disability or in receipt of an adulterated-type of temporary disability benefits extending beyond the date of his maximum medical improvement." 405 So.2d at 445. Such a result, the court found, would neither be in the best interests of all affected parties, nor would it be consistent with the harmonious administration of Chapter 440.
The E/C insist that the 1989 amendments to the statutes were designed specifically to overrule the holding in W.R. Grace. According to the E/C's argument, under the amended version of 440.49(1)(c), the entry of an order adjudicating a claimant to be permanently and totally disabled is prohibited unless, as a condition precedent, the JCC has determined whether or not there is a reasonable prospect of rehabilitation.
We find the E/C's argument as to the presumed effect of the statutory changes to be deceptively simple. We agree, as argued by the appellee, that the changes in the wording of section 440.49(1)(c) did little, if anything, to alter the clear meaning and import of the prior statute.
To what extent, if any, the amended statute overruled ...
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