Hurricane Fence Industries v. Bozeman
| Decision Date | 06 May 1982 |
| Docket Number | No. AD-488,AD-488 |
| Citation | 413 So.2d 822 |
| Parties | HURRICANE FENCE INDUSTRIES and Maryland Casualty Company, Appellants, v. Wallace L. BOZEMAN, Appellee. |
| Court | Florida District Court of Appeals |
David A. Simpson, Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellants.
Roderic G. Magie, Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellee.
The primary issue presented here is one of jurisdiction and authority, on the part of a deputy commissioner, to order rehabilitation benefits in behalf of a worker's compensation claimant. Specifically, is a request, either by the employee, employer, or the carrier, to the Division of Worker's Compensation, 1 for a referral for evaluation of the claimant's need, etc., for rehabilitation as provided by Section 440.49(1)(a), Florida Statutes (1979), a necessary condition precedent to the award of rehabilitation benefits by the deputy commissioner under the new (1979) Workers' Compensation Act? 2 The deputy commissioner answered this question in the negative, and awarded rehabilitation. We affirm.
After his injury, the claimant continued to work for the employer until he received knee surgery in March, 1980. 3 When he attempted to return to work for the employer, he found that his job was filled. In his employment as an estimator for the fence company owned by the employer, he occasionally was required to walk over rough terrain to gather the necessary information to complete his estimate, and he customarily engaged in other physical labor in connection with his job. At the hearing, the claimant testified that he doubted he could continue such work because of his knee condition. The claimant contacted the State Vocational Rehabilitation Service, which helped enroll him in a meat cutting school in Chipley, Florida, which is normally a thirty-six week training course, and paid his tuition. 4 The claimant moved from Pensacola to Chipley in order to be near the school. He sought part-time employment in Chipley, but was unable to find employment he could do because of his injured knee.
The deputy commissioner pointed out in his order that after the claimant made arrangements to attend this school in Chipley, the employer offered him a job. The deputy ruled that this offer of employment "came too late." Further, the deputy commissioner found that the claimant's efforts to rehabilitate himself were reasonable and necessary under the circumstances, and that the carrier had made no effort to assist his rehabilitation, although the claimant was entitled to such benefits.
Our review convinces us that the deputy commissioner's findings and conclusions on the rehabilitation issue are supported by the record. 5 The evidence from the claimant, undisputed, discloses that he contacted the carrier seeking rehabilitation as early as October, 1980. He was informed that he was not eligible for rehabilitation because he did not have a back injury. A month later, he again contacted the carrier, informing the carrier of his intention to attend the school in Chipley. Again, he was told that he was not eligible. Apparently the carrier made no effort to communicate the claimant's rehabilitation requests to his employer, nor to explain the claimant's possible eligibility for such benefits, and the employer/carrier's obligation to provide them. The employer's first notice that rehabilitation benefits were being claimed apparently came by letter about the middle of December, 1980. The employer was not sure, but his guess was that it came from the Division of Vocational Rehabilitation (Florida Department of Health and Rehabilitation Services).
The employer/carrier argue that rehabilitation benefits are not available to a claimant unless he has first made application to the Division of Worker's Compensation for referral "to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment." Section 440.49(1)(a), Florida Statutes (1979). We disagree. Although the procedural step spelled out in the statute is the "correct procedure," as recently announced by this court in Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982), the absence of a Division report was not found to be a jurisdictional impediment to rehabilitation in Walker, nor is it here. Cf. Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982), opinion filed March 15, 1982, affirming denial of rehabilitation benefits where the employee had not applied to the division for evaluation.
Our determination of the jurisdictional issue calls for examination of the specific language of the 1979 rehabilitation statute, as well as its predecessor. Former Section 440.49, repealed effective July 1, 1979, 6 contained a provision limiting the authority of the deputy commissioner to award rehabilitation benefits. The repealed provision (Section 440.49(1), Florida Statutes (1978 Supp.)) provided in part:
However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the Division has been given reasonable time to evaluate the injured worker and advise all parties as to the rehabilitation program it may propose if said rehabilitation program is to be funded out of the fund established by s. 440.50 ....
Under the pre-1979 statute, rehabilitation was funded out of the Special Disability Trust Fund, rather than by direct payments by the employer/carrier. Under this prior law, a judge of industrial claims (now deputy commissioner) could not assume jurisdiction to award rehabilitation benefits unless he had first received an evaluation report from the Division advising as to the rehabilitation program proposed for the claimant. Hall v. Red Bishop Roofing, 393 So.2d 618 (Fla. 1st DCA 1981); Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1976).
No such limitation upon the jurisdiction or authority of the deputy commissioner appears in the 1979 version of Section 440.49, which provides that rehabilitation must be provided by the employer or carrier, at its own expense. Upon application, under the 1979 amendment, the Division "may" refer the employee "to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment." Upon receipt of a report of such evaluation, the deputy commissioner "may" order the service or treatment recommended in the report, or, the deputy may order "such other rehabilitation treatment or service deemed necessary," to be provided at the expense of the employer or carrier. Section 440.49(1)(a).
The new act's increased emphasis upon rehabilitation, and liberalization of the prerequisites for eligibility on the part of the claimant is evident. 7 The former statute, Section 440.49 (1978 Supp.), provided for rehabilitation in cases "in which it appears that disability probably will be permanent ...." The 1979 amendment eliminates the requirement of "permanent" disability, and provides for eligibility when "it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury ...." Section 440.49(1)(a), Florida Statutes (1979).
It appears from the foregoing that while application to the Division for referral to a physician or facility for evaluation is contemplated by the new law, if rehabilitation is "not voluntarily offered or accepted," nowhere is there any indication that such an application is a jurisdictional prerequisite to the receipt of rehabilitation benefits by the claimant. Any other interpretation of the new statutory language would be contrary to the self-executing concept firmly embodied (now even more so) in the workers' compensation law, and inconsistent with the wording of the statute. The language that the Division "may refer" the employee for evaluation is permissive, not mandatory, and this provision further incorporates the permissive form in the provision that the deputy commissioner "may order" that the recommended treatment or service be provided. The additional language of subsection (1)(a), authorizing the deputy commissioner to order "such other rehabilitation treatment or service deemed necessary," particularly when read in conjunction with the other subsections ((1)(b)-(f)), unquestionably confers upon the deputy commissioner the authority to award or decline to award the recommended treatment, or to award service or treatment even though not recommended in the report. We adhere, however, to the Walker opinion's directives concerning the desired procedure to be followed. 8
Having disposed of the jurisdictional issue adversely to appellants' position, we turn now to the circumstances of this case. We observe, initially, that the amended rehabilitation provision, with respect to "application" to the Division, does not differentiate between applications by the employee, employer, or the carrier. All are given equal right under the statute to apply to the Division for assistance in evaluating the rehabilitation needs of the employee, if rehabilitation is "not voluntarily offered or accepted." We interpolate here that implicit in the concept of voluntary offer and...
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Vocational rehabilitation in Florida workers' compensation cases: a comprehensive review of statutory and case law.
...services. However, estoppel was sometimes used successfully against the employer/carrier. In Hurricane Fence Industries v. Bozeman, 413 So. 2d 822 (Fla. 1st DCA 1982), the carrier refused the claimant's requests for rehabilitation. The claimant contacted the Department of Health and Rehabil......