Gill v. USX Corp., No. 90-1797

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ERVIN
• Citation: 588 So.2d 1035
• Parties: Howard GILL, Appellant, v. USX CORPORATION and Alexsis, Inc., Appellee. 588 So.2d 1035, 16 Fla. L. Week. D2826
• Docket Number: No. 90-1797
• Decision Date: 06 November 1991

Page 1035

588 So.2d 1035 Howard GILL, Appellant,
v.
USX CORPORATION and Alexsis, Inc., Appellee. No. 90-1797. 588 So.2d 1035, 16 Fla. L. Week. D2826 District Court of Appeal of Florida,
First District. Nov. 6, 1991.
Rehearing Denied Dec. 13, 1991.

Page 1036

Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellant.

Charles E. Bentley and Sherri L. Hussey, of Holland & Knight, Lakeland, for appellee.

ERVIN, Judge.

Appellant Howard Gill appeals an order denying him wage-loss (WL) benefits between April 20, 1988 and January 10, 1990. Gill first asserts the judge of compensation claims (JCC) erred in denying his request for WL benefits between April 20, 1988 and November 10, 1988, during which time his primary treating physician had issued statements that claimant was to remain off work. Gill also claims the JCC erred in denying benefits between November 11, 1988 and January 10, 1990, because the employer/carrier (E/C) did not provide him with job-search or rehabilitation assistance. We reverse as to both issues and remand for further proceedings consistent with this opinion.

Gill was injured when he forcefully hyperextended his left foot on July 11, 1985, while working as a materials unloader for the employer, U.S. Agri-Chemicals, Inc., a division of USX Corporation. He has been treated primarily by orthopedist Dr. Horst Von Paleske, who diagnosed Gill's condition as post-traumatic neurodystrophy, also known as reflex sympathetic dystrophy. Dr. Von Paleske testified that claimant reached maximum medical improvement (MMI) on February 20, 1987, with an eight percent permanent partial impairment of his ankle.

In a previous appeal, Gill v. U.S. Agri-Chemicals, 561 So.2d 371, 372 (Fla. 1st DCA 1990), we affirmed the JCC's denial of WL benefits through April 19, 1988, concluding that "claimant had not shown the requisite causal connection between a physical limitation resulting from the industrial injury and any lost wages after the date of maximum medical improvement." We reversed only for recalculation of claimant's

Page 1037

average weekly wage. We are now being asked to consider Gill's request for WL benefits for the subsequent periods not addressed in that opinion.

On May 11, 1988, Dr. Von Paleske wrote a work-restriction slip for Gill's employer, stating that claimant "will be off work until seen again in four months." He wrote another on August 11, 1988, advising that claimant "will be off work for three more months." In a report also dated August 11, 1988, Dr. Von Paleske commented that claimant was unable to "perform anything at all" because of severe pain in his left foot and ankle, and that his left foot and lower leg were "bluish reddish discolored." At the final hearing, Dr. Von Paleske testified that Gill had been capable of performing light-duty work since he reached MMI on February 20, 1987, and that he prepared the work-restriction notes quoted above only to excuse claimant from having to engage in manual labor with the employer. He could not remember, however, whether he actually told Gill that he could do only light or sedentary work, and he made no record in his office notes that he had actually so advised the claimant until November 10, 1988.

After considering the above evidence, we reverse that part of the final order denying Gill WL benefits between April 20, 1988 and November 10, 1988. There is simply nothing in the record suggesting that Dr. Von Paleske ever informed Gill that he could engage in light-duty or sedentary work during this period. See Croft v. Donna Jean Packing Co., 579 So.2d 146, 148 (Fla. 1st DCA 1991) (even if physician testifies that claimant could have worked at an earlier time, the evidence must establish that claimant was so informed or that she should have known she was released to work). Accord, Scott v. Container Corp. of Am., 559...