Garcia v. Fence Masters, Inc., 1D08-5275.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPer Curiam
Citation16 So.3d 200
PartiesReinaldo B. GARCIA, Appellant, v. FENCE MASTERS, INC., and AIG Claims Services, Inc., Appellees.
Docket NumberNo. 1D08-5275.,1D08-5275.
Decision Date06 August 2009
16 So.3d 200
Reinaldo B. GARCIA, Appellant,
v.
FENCE MASTERS, INC., and AIG Claims Services, Inc., Appellees.
No. 1D08-5275.
District Court of Appeal of Florida, First District.
August 6, 2009.

[16 So.3d 201]

Bill McCabe, Longwood, and Richard J. Dolan, II of Morales, Dolan & Cerino, P.A., Hialeah, for Appellant.

John R. Darin of Znosko & Reas, P.A., Maitland, and Gonzalo Rodriguez, Fort Lauderdale, for Appellees.

PER CURIAM.


Claimant challenges an order of the Judge of Compensation Claims (JCC) denying his claim for permanent total disability (PTD) benefits. Claimant argues the JCC erred by relying on the opinion of a vocational expert retained by the employer/carrier (E/C) because the opinion was not sufficiently supported by valid data. For reasons explained herein, we reverse and remand this case for further proceedings.

Background

Claimant, a fifty-nine-year-old welder with limited education and a work history restricted to the field of welding, was displaced from his employment of sixteen years by a compensable injury to his left (non-dominant) shoulder. Claimant is fluent in Spanish, but cannot speak, read, or write in English. All of the physicians who offered opinions in this matter opined Claimant was permanently limited to sedentary or light work and could not return to his previous occupation. Instead of utilizing the reemployment and rehabilitation provisions mandated by section 440.491(1)-(9), Florida Statutes (2005), the E/C hired Richard Lopez, a vocational expert. Two days prior to final hearing, and nearly one and a half years after Claimant requested PTD benefits, Lopez performed a "labor market survey" by looking for job listings in the newspaper and on the Internet. Lopez testified he found ten jobs purportedly within Claimant's physical restrictions, and within fifty miles of Claimant's home. Lopez testified the E/C instructed him not to assist Claimant in finding work; rather, he was simply needed to identify positions within Claimant's "physical limitations." When cross-examined about the actual vocational, physical, and educational requirements of the jobs included in the labor market survey, Lopez admitted he had no knowledge as to such information. Lopez also testified he performed a transferrable skills analysis and, in essence, could not identify any skills possessed by Claimant that would transfer to lighter work. Claimant, in turn, hired a vocational expert who testified he investigated the jobs identified by Lopez, and all of them had physical, vocational, and/or educational requirements that exceeded Claimant's abilities.

The JCC's denial of PTD benefits

The JCC denied PTD benefits by finding Lopez's testimony more persuasive than that of Claimant's vocational expert and concluding Claimant was capable of performing at least sedentary work within a fifty-mile radius of his residence. From the JCC's order, however, it is not clear whether she took into consideration (in addition to Claimant's physical restrictions) vocational factors that might restrict Claimant from engaging in gainful employment. Claimant admitted, at all times relevant to these proceedings, he was physically capable of sedentary work, but was seeking PTD benefits based on his physical restrictions coupled with his vocational limitations. In the...

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5 cases
  • BLAKE v. MERCK, 1D09-5464.
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 2010
    ...negates an award of permanent total disability.* Claimant was injured on February 20, 2004. As we noted in Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009), for injuries occurring on or after October 1, 2003, the JCC must "consider not only physical restrictions, but als......
  • Hdv Constr. Sys. Inc. v. Aragon
    • United States
    • Court of Appeal of Florida (US)
    • August 9, 2011
    ...within a fifty-mile radius of his residence, considering his physical and vocational limitations. See Garcia v. Fence Masters, Inc., 16 So.3d 200, 202 (Fla. 1st DCA 2009) (reversing denial of PTD benefits where JCC made conclusory finding that claimant was physically capable of performing a......
  • HDV Constr. Sys., Inc. v. Aragon, CASE NO. 1D10-6401
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2011
    ...within a fifty-mile radius of his residence, considering his physical and vocational limitations. See Garcia v. Fence Masters, Inc., 16 So. 3d 200, 202 (Fla. 1st DCA 2009) (reversing denial of PTD benefits where JCC made conclusory finding that claimant was physically capable of performing ......
  • Thomas v. Bircheat, 1D08-4503.
    • United States
    • Court of Appeal of Florida (US)
    • August 6, 2009
    ...Injuries incurred during that time are compensable. Hill v. Gregg, Gibson, & Gregg, Inc., 260 So.2d 193, 195 (Fla.1972). Nevertheless, 16 So.3d 200 this error is harmless because the JCC properly concluded Claimant was not entitled to workers' compensation benefits due to his intoxication. ......
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