Nickolls v. University of Florida

• Decision Date: 04 September 1992
• Docket Number: No. 90-72,90-72
• Citation: 606 So.2d 410
• Parties: 17 Fla. L. Week. D2071 Robert E. NICKOLLS, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management, Appellees.
• Court: Florida District Court of Appeals

Page 410

606 So.2d 410

17 Fla. L. Week. D2071

Robert E. NICKOLLS, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management,

Appellees.

No. 90-72.

District Court of Appeal of Florida,

First

District.

Sept. 4, 1992.

Mark A. Massey, Ocala, for appellant.

Barry D. Graves, Gainesville, for appellee.

WOLF, Judge.

Claimant, Nickolls, in this workers' compensation appeal, contends that the judge of compensation claims (JCC) erred in denying his claim for temporary total disability (TTD) benefits, remedial treatment, and vocational rehabilitation. The JCC denied the requested benefits and found that the claimant was capable of working and had been capable of working since May 11, 1989. ¹ The JCC partially based this finding on the lack of a good-faith job search by the claimant. While we disagree with the claimant's contention that there was not competent substantial evidence to support the JCC's finding concerning the claimant's physical restrictions, we must remand the case for further consideration in light of the JCC's improper determination that the claimant was required to perform a work search where the employer/carrier (E/C) failed to inform the claimant of this obligation.

There is no dispute that the claimant suffered a compensable injury on February 11, 1988, and that the E/C voluntarily paid benefits until May 1989. The claimant testified that he tried to work on May 11, 1989, but had to quit after four hours because of pain. The JCC, however, found there were substantial inconsistencies between the claimant's alleged inability to work and complaints of pain and the evidence of his actual work history and abilities. In making this determination, the JCC considered the testimony of Dr. Oregon Hunter, Dr. Michael McMillan, Viana Drummond, a rehabilitation specialist, and James Dees, the claimant's nephew who had worked, hunted, and fished with the claimant extensively before and after the accident.

Dr. Hunter, a physician who specialized in physical medicine, rehabilitation and electro-diagnostic medicine, began treating the claimant in May 1988. Dr. Hunter felt that the claimant had been temporarily totally disabled, but reached MMI in September of 1988. He released the claimant to light-duty work in November of 1988. ² There is no indication that the limited restrictions placed on the claimant by Dr. Hunter would preclude him from performing his prior employment.

After performing the Waddell sign test on the claimant, Hunter concluded that the claimant was exaggerating certain symptoms. Specifically, the JCC relied on testimony of Dr. Hunter concerning the claimant's performance of this test. Dr. Hunter testified that while the claimant asserted that he was unable to perform certain activities because of pain, that the claimant performed the same motions without apparent difficulty when distracted.

Dr. Hunter referred the claimant to Dr. Michael McMillan, an orthopedic surgeon, who fit the claimant with a back brace. When asked about prior back problems, the claimant did not inform Dr. McMillan of any prior injuries. When Dr. McMillan saw the claimant six weeks after the initial visit (May 11, 1989), he concluded, after examining the brace and talking with the claimant, that the claimant had not worn the brace. Dr. McMillan found the claimant to be at MMI and opined that the accident of February 12, 1988, aggravated a back condition called spondylosis which is "a defect that arises in adolescence and is carried on through adulthood." ³ Dr. McMillan did not recommend that the claimant refrain from working.

Viana Drummond noted in her report and in her testimony that there were numerous inconsistencies in the claimant's physical capacities evaluation. She testified that the claimant could not lift more than five and a half pounds from his shoulder to overhead, yet when she distracted him and asked him to hand her a ten-pound sand bag, he was able to pick it up and carry it more than thirty feet. She also stated that the claimant exhibited cogwheeling movements during lifting which were inconsistent with a person suffering from back pain. She noted that the claimant exhibited every type of pain behavior medically recognized, including sharp pain, dull pain, radiating pain, numbness, tingling, burning, stabbing pain, and pins and needles all over. She testified that this variety of pain symptoms was inconsistent with a person suffering from real back pain. She further testified that the claimant maintained that he could not perform many functions nor sit for more than 45 seconds. Viana Drummond testified, however, that the correlation between the claimant's pain rating and his observed behavior was questionable.

James Dees testified that he is the claimant's nephew and has known the claimant ever since he was a child. During the year prior to the hearing, he observed the claimant extensively while working, fishing, and hunting. Mr. Dees testified that he saw the claimant work as a roofer, perform other construction work, fish with heavy equipment and pull in heavy fish, build steel cookers, work on outboard motors, manually garden, hunt, perform welding, and engage in physical fighting without any apparent difficulty and without complaining of pain. Mr. Dees was also with the claimant in October of 1989 when their airboat sunk and they were required to stay on the airboat overnight. The claimant sat on the airboat without any apparent difficulty. He also testified that the claimant had no difficulty bending down, crawling, stooping, and lifting heavy objects.

The JCC found that the claimant's inability to perform his prior job was not proven and that no evidence was presented of a good-faith job search. Accordingly, the JCC found the claimant was not entitled to any temporary total or temporary partial disability payments since May 11, 1989. ⁴

We must determine the legal effect of the E/C's failure to apprise the claimant of his work search responsibilities. The initial burden is on the claimant to demonstrate an entitlement to benefits upon a change in employment status due to a compensable injury. Sec. 440.15(3)(b)2, Fla.Stat.; Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990); Watterman v. Interstate Truckers, Inc., 545 So.2d 408 (Fla. 1st DCA 1989). This burden may be met by proof which encompasses medical evidence or evidence of a good-faith work search. Meek v. Layne-Western Co., 566 So.2d 31 (Fla. 1st DCA 1990). Once the claimant has satisfied the initial burden, the burden of proof shifts to the E/C to demonstrate a voluntary limitation of income or to demonstrate that the injury is not creating an impairment or work-related physical restriction which would limit the claimant's ability to perform appropriate employment. Sec. 440.15(3)(b), Fla.Stat.; Meek v. Layne-Western Co., supra; Edwards v. Caulfield, supra; Watterman, supra; Coq v. Fuchs Baking Co., 507 So.2d 138 (Fla. 1st DCA 1987).

The E/C is obligated to inform the claimant that a work search may be required. Burger King v. Nicholas, 580 So.2d 656 (Fla. 1st DCA 1991). The legal effect of a failure to so inform is to relieve the claimant of the necessity of performing the work search, but this does not conclusively entitle the claimant to benefits. Burger King v. Nicholas, supra; Coq v. Fuchs Baking Co., at 141. The issue of a change in employment status as a result of the injury still remains. This determination generally involves a question of fact to be resolved by the JCC. Meek v. Layne-Western Co., supra.

The critical issue in this case is whether the claimant's ability to perform appropriate employment has been affected by his industrial injury. If the JCC should determine that the claimant's compensable injury and physical restrictions resulting therefrom preclude him from performing his prior job duties or other appropriate employment, then the issue of the work search is relevant. However, if the JCC should determine that there are no remaining physical restrictions that would preclude the claimant from performing his prior job duties or other appropriate employment, but that the claimant left his prior job for reasons unrelated to his injury (for example, unwillingness to work), then this case is indistinguishable from Burger King, supra. In Burger King, although the claimant's responsibility to perform a work search was excused because of the E/C's failure to inform the claimant of the work search requirement, the claimant was found to be not entitled to benefits because there was insufficient evidence of a causal connection between the injury and the wage loss.

In the instant case, it is undisputed that the claimant was allowed to return to his former position. The record is replete with evidence which would support the JCC's findings concerning the claimant's ability to work in his former position. If the claimant could physically resume his former duties and there is no negative change in employment status due to the accident, the claimant is not entitled to benefits.

It is impossible to tell, however, what effect the absence of a work search had on the JCC's decision. The case is, therefore, remanded for a further determination concerning the claimant's physical capabilities at the time he returned to his prior job and thereafter, and the entitlement to compensation benefits.

ALLEN, J., concurs with written opinion.

ERVIN, J., concurs in part and dissents in part with written opinion.

ALLEN, Judge, concurring.

I concur fully in the majority opinion, and write separately only to address certain inaccuracies in the dissent. Although the dissent suggests that the majority does not understand the process by which a claimant's entitlement to benefits is established, I believe it is the dissent which reflects such a lack of understanding. An employer/carrier's failure to properly inform a claimant of a work search responsibility precludes a denial of benefits due to the absence of a work...