Pan American Bank v. Glinski, 91-140
| Decision Date | 17 July 1991 |
| Docket Number | No. 91-140,91-140 |
| Citation | 584 So.2d 52 |
| Parties | PAN AMERICAN BANK and C.L.A.S., Appellants, v. Marie Ann GLINSKI, Appellee. 584 So.2d 52, 16 Fla. L. Week. D1868 |
| Court | Florida District Court of Appeals |
Robert L. Teitler of Walton Lantaff Schroeder & Carson, Miami, for appellants.
Mark L. Zientz of Williams & Zientz, Miami, for appellee.
The employer and carrier appeal a workers' compensation order awarding the claimant permanent total disability benefits and denying an offset against the compensation benefits for social security benefits being received by the claimant. We affirm for the following reasons.
The permanent total disability award is supported by competent substantial evidence. Dr. Jaen opined that the claimant reached maximum medical improvement on May 7, 1990, with a 30% permanent impairment of the entire body. He stated that she could return to light duty work, but that she would be restricted to a job that would not require her to sit for more than 30 minutes continuously or stand for more than 90 minutes continuously, and she was not to stoop, bend, or walk up and down stairs. On June 11, 1990, Dr. Jaen stated that claimant would be limited to working only 4 days per week. On August 10, 1990, Dr. Jaen added to claimant's limitations that she could not lift more than 30 pounds, and further restricted continuous standing to no more than 45 minutes. Cynthia Kirsch, a licensed rehabilitation evaluator, testified that she prepared an evaluation of claimant based on claimant's physical limitations, work history, and education. She also performed a survey of the market in claimant's area of employment. Based on this information, Ms. Kirsch opined that claimant is not capable of gainful employment due to her physical limitations, particularly the limitation on sitting for prolonged periods of time. In her opinion, a work search would be futile. She opined that claimant could not be rehabilitated through education or training to a point where she would be able to obtain and perform gainful employment. Again, the primary impediment to obtaining rehabilitation is the fact that claimant could not sit through the required classes.
The employer and carrier argue that because Dr. Jaen stated claimant could return to work, she was required to perform a lengthy and exhaustive work search as a prerequisite to obtaining an award of permanent total disability benefits. This argument, however, misconceives the nature of the proof required to establish the essential statutory elements of that award. The statutes in effect on the date of claimant's injury in 1983 are applicable to the determination of her substantive rights. The term "disability" is defined in those statutes as meaning "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of injury." Sec. 440.02(9), Fla.Stat. (1983). Permanent total disability benefits are payable upon a determination that claimant's disability is both total and permanent. Here, the medical testimony established that claimant was suffering from a substantial permanent impairment due to the injury that severely restricted her ability to engage in physical activities. Although Dr. Jaen encouraged claimant to return to work in spite of these restrictions, he was not shown to be a qualified expert in the marketing of labor services and his testimony would not serve as competent proof that claimant remained capable of earning wages in the existing labor market. Rather, the evidence presented by Ms. Kirsch, a witness shown to be qualified to express an opinion as to the claimant's employability in the job market while taking into account her physical limitations, including those imposed by Dr. Jaen, was competent substantial evidence sufficient to support a finding that claimant was totally disabled from earning the wages she was receiving at the time of her injury. There simply is no legal requirement that claimant is limited to either presenting medical testimony that she cannot return to work or performing an exhaustive work search before qualifying for permanent total disability benefits. The combination of the medical proof presented here coupled with the...
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