Kennedy v. Marcona Ocean Industries, AU-265
| Decision Date | 13 June 1984 |
| Docket Number | No. AU-265,AU-265 |
| Citation | 451 So.2d 530 |
| Parties | William G. KENNEDY, Appellant, v. MARCONA OCEAN INDUSTRIES and Wausau Insurance Companies, Appellees. |
| Court | Florida District Court of Appeals |
Earle Lee Butler of Butler & Pettit, Fort Lauderdale, for appellant.
Thomas W. Conroy of Conroy & Simberg, Hollywood, for appellees.
The claimant in this workers' compensation case appeals the deputy commissioner's order denying his claim for permanent and total disability benefits and the assessment of penalties on these benefits. We affirm.
Claimant, a right-handed individual, sixty (60) years of age, injured his left arm and shoulder in a compensable accident on January 8, 1979. After two initial surgeries on his shoulder, claimant returned to work in the Bahamas for the employer herein from April of 1979 until February of 1981. The claimant was then transferred to his employer's office in Fort Lauderdale and continued to work there in an office job until January of 1983 when he was put on "sick leave" for six months. During this latter period of time, claimant underwent two unsuccessful total shoulder replacement operations in June of 1981 and May of 1982, respectively. At the time claimant left his job in January of 1983, he was earning $49,500 a year. Claimant's salary has increased since returning to work for his employer in 1979.
On February 26, 1983, claimant filed claim for permanent and total disability benefits. At the hearing held on this matter, claimant testified that he has not looked for work since he was put on sick leave in January of 1983. Claimant also testified that the office job in Fort Lauderdale was created for him by his employer, although he did perform some useful functions in this job. Claimant's son testified that claimant mows the grass at his house with a power lawn mower, that claimant cleans up around the house, and, that claimant can drive a car. Additionally, an insurance form filled out by one of claimant's treating physicians in connection with claimant's application for long term disability benefits was introduced into evidence. Claimant's physician checked a box on this form indicating that claimant has severe limitation of functional capacity, incapable of minimal (sedentary) activity (75-100%).
In his order, the deputy found that claimant was not entitled to permanent and total disability benefits, since claimant failed to conduct a work search and claimant was not medically excused from conducting such a work search. We find competent, substantial evidence to support the deputy's finding that claimant is not entitled to permanent total...
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...had waived entitlement by failing to claim penalties, and e/c were denied an opportunity to be heard). Cf. Kennedy v. Marcona Ocean Industries, 451 So.2d 530 (Fla. 1st DCA 1984); Mezquita v. Florida Steel Corp., 419 So.2d 675 (Fla. 1st DCA 1982) (affirming order that failed to adjudicate is......
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...that a "lengthy, exhaustive job search, unsuccessful since the injury" was performed in its place. Camp; Kennedy v. Marcona Ocean Industries, 451 So.2d 530, 531 (Fla. 1st DCA 1984); West Coast Insulation v. Lee, 464 So.2d 1317, 1318 (Fla. 1st DCA 1985). It is undisputed that Sallee has look......