H.S. Camp & Sons v. Flynn

• Decision Date: 11 May 1984
• Docket Number: No. AV-73,AV-73
• Citation: 450 So.2d 577
• Parties: H.S. CAMP & SONS and American Mutual Insurance Co., Appellants, v. Bryce C. FLYNN, Appellee.
• Court: Florida District Court of Appeals

Page 577

450 So.2d 577

H.S. CAMP & SONS and American Mutual Insurance Co., Appellants, v. Bryce C. FLYNN, Appellee.

No. AV-73.

District Court of Appeal of Florida First District.

May 11, 1984.

Rehearing Denied June 11, 1984.

James M. Hess, of Driscoll, Langston & Kane, Orlando, for appellants.

Daniel L. Hightower, of Green, Simmons, Green, Hightower & Gray, Ocala, for appellee.

WENTWORTH, Judge.

The employer/carrier in this case appeal an order of August 19, 1983, awarding permanent total disability compensation benefits two years after claimant's maximum medical improvement from a crush injury and ensuing infections of his dominant right hand in a meat grinding machine accident. ¹ Temporary total disability was paid for a year during which surgery was performed six times on claimant's hand, and wage loss was paid thereafter through February 1983. Issues on appeal are (1) sufficiency of proof of total disability "due to physical limitation" under § 440.15(1)(b), Florida Statutes; (2) voluntary limitation of income by refusing offered employment; and (3) duty of the deputy, before adjudicating permanent total disability, to determine whether claimant may be rehabilitated to suitable gainful employment. We affirm based upon discussion below on the first point. As to issues two and three we conclude that the order meets the essential statutory requirements and is based on an adequate record predicate as to (1) unsuitability of the particular commission sales job offer and (2) lack of any evidence that the rehabilitative services provided in this case could produce results sufficient to defer the permanent total disability determination.

Appellant's contention with respect to proof of permanent total disability appears to be that the following statutory language precludes permanent total disability compensation in any case in which the medical evidence is that claimant is capable of light work:

440.15 ... (1) Permanent total disability.--... (b) ... shall be determined in accordance with the facts .... no compensation shall be payable ... if the employee ... is physically capable of engaging in, gainful employment; and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation. (e.s.)

Appellant relies on recent decisions reversing permanent total disability awards for lack of competent substantial evidence of physical limitation. Arnold Lumber Co. v. Randall, 438 So.2d 433 (Fla. 1st DCA 1983); Hillsborough County Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983); Ronald Allen Trucking Co. v. Helton, 449 So.2d 874 (Fla. 1st DCA 1984). In those cases, however, the court did not (as appellant contends) hold that incapacity for light work may be established only by medical evidence of physical limitation totally precluding light work. Neither did the recited facts and issues presented in those cases require a decision on the question now before us, i.e., the relevance of a lengthy and exhaustive job search, completely unsuccessful throughout the three years since injury in spite of services from three vocational rehabilitation or placement experts. That factor was in our opinion properly considered by the deputy in the context of the case before him, under circumstances permitting a conclusion that continued search is futile until changed conditions can be shown, a remedy which of course remains available following determination of permanent total disability.

We recognize, of course, that the medical evidence in the present case shows less than total physical incapacity and that the doctor opined a capacity for light work, but we do not find that to be conclusive because we do not read the terms of the statute to limit permanent total disability compensation to those claimants whose doctors impose medical restrictions against "light work." Such a construction would collide with the basic long-standing statutory definition of disability: an incapacity to earn to which a compensable injury contributes. ² It would also collide with the terms of the 1979 amended provision for permanent total disability above quoted, which restricts such compensation when claimant is "physically capable of ... gainful employment." (e.s.) The amended language does clearly emphasize the requirement that such disability shall be causally related not only to the compensable accident and injury but also to the resulting physical limitation. We conclude against reversal of the deputy's apparent conclusion on this factual issue. ³

The parties argue, tangentially, the applicability of the ruling and rationale of the en banc opinion in Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982). ⁴ There is, in the present case, no need to debate the pertinence of the Regency economic dislocation argument to proof of permanent total disability since the nature of claimant's impairment and work history in this case is such that he clearly does not depend solely on accident-related job interruption to show a causal relationship between...