Lopez v. Duda

• Citation: 109 So.3d 1277
• Decision Date: 04 April 2013
• Docket Number: No. 1D12–3482.,1D12–3482.
• Court: Court of Appeal of Florida (US)
• Parties: Gilberto LOPEZ, Appellant, v. A. DUDA & SONS, INC. and Chartis Claims, Inc., Appellees.

109 So.3d 1277

Gilberto LOPEZ, Appellant,

v.A. DUDA & SONS, INC. and Chartis Claims, Inc., Appellees.

No. 1D12–3482.

District Court of Appeal of Florida,

First District.

April 4, 2013.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.

Nancy C. Ciampa and Christopher B. Corts of Carlton Fields, P.A., Miami, for Appellees.

PER CURIAM.

In this workers' compensation appeal, Gilberto Lopez challenges the Judge of Compensation Claims' (JCC's) denial of his claim for permanent total disability (PTD) benefits. Because we agree the JCC erred in denying the claimed benefits, we reverse and remand with directions to award benefits.

Background

Mr. Lopez, who drove both semi tractor-trailers and field tractors for A. Duda & Sons for twenty-seven years, sustained a compensable injury in January of 2011 to his back. After reaching maximum medical improvement on September 7, 2011, Mr. Lopez filed a petition for benefits on October 28, 2011, seeking an award of PTD benefits.

Claimant's treating physicians opined Mr. Lopez had physical restrictions attributable to his compensable injuries that limited him to “light to medium” work. Gerri Pennachio, as requested by A. Duda & Sons, conducted on May 11, 2012 (one month before the hearing), a re-employment assessment. Ms. Pennachio explained that this assessment requires a review of an individual's medical records to determine medical restrictions based on physicians' opinions, review of an individual's educational background, and review of the individual's work history to determine whether the individual could still perform work done in the past. If not, then she was to make an assessment to determine whether the individual is employable (in at least sedentary employment) within a 50–mile radius of the individual's home.

Ms. Pennachio testified that Mr. Lopez's past work required a medium level of physical exertion, but that his past work required specific activities that his physicians testified he could no longer do; thus, he could not return to his previous types of employment. Ms. Pennachio's recommendation for returning Mr. Lopez to suitable employment was that he return to A. Duda & Sons. The only job identified as within his physical restrictions and vocational capabilities was that of security guard. She testified that such a position was “probably the best option for him. He's not really going to be employed with any other employer because he's been with this employer since 1985, so the best way for him to try to return to work would be with Duda & Sons.” Ms. Pennachio concluded that “he really would not be placeable anywhere else.” Ms. Pennachio determined that A. Duda & Sons currently had no open security guard positions, however. The JCC accepted Ms. Pennachio's testimony in its entirety.

Mariano Vasquez, human resources manager for A. Duda & Sons, testified about the security guard job, a job he also felt Mr. Lopez would most likely be able to perform given his physical restrictions. Mr. Vasquez testified he first contacted Mr. Lopez by writing him a letter dated November 28, 2011. That letter did not include a job offer. Likewise, subsequent contacts with Mr. Lopez in February and April 2012 did not result in any job offer. Mr. Lopez contacted Mr. Vasquez following his receipt of a May 10, 2012, letter, sent at a time, Mr....