Phillips v. Duval County School Bd., 90-00187

• Decision Date: 26 March 1991
• Docket Number: No. 90-00187,90-00187
• Citation: 577 So.2d 630,16 Fla. L. Weekly 848
• Parties: 67 Ed. Law Rep. 358, 16 Fla. L. Weekly 848 Hoyt PHILLIPS, Appellant, v. DUVAL COUNTY SCHOOL BOARD and Gallagher Bassett, Appellees.
• Court: Florida District Court of Appeals

Page 630

577 So.2d 630

67 Ed. Law Rep. 358, 16 Fla. L. Weekly 848

Hoyt PHILLIPS, Appellant, v. DUVAL COUNTY SCHOOL BOARD and Gallagher Bassett, Appellees.

No. 90-00187.

District Court of Appeal of Florida,

First District.

March 26, 1991.

Steven M. Meyers of Meyers and Mooney, P.A., Orlando, for appellant.

James L. Harrison, Gen. Counsel, and Stanley M. Weston, Asst. Counsel, Jacksonville, for appellees.

BOOTH, Judge.

This cause is before us on appeal from a final order of the judge of compensation claims (JCC). Appellant/claimant contends that the JCC erred in denying benefits from January 1988, the date appellant retired, through June 1988, the date appellant filed a claim for benefits. Finding merit in this argument, we reverse.

Appellant was a 54-year-old utility operator employed with the Duval County School Board, when, on September 19, 1980, he fell down a flight of steps during the course of his employment and sustained injuries to his head, right side, and lower back. Following treatment, appellant returned to work. On June 4, 1981, appellant reinjured his lower back in a lifting incident. The E/C combined the injuries for administrative purposes and designated June 4, 1981 the date of accident.

After the second accident, appellant came under the care of Dr. Paulo Monteiro, a neurosurgeon, who performed a myelogram and diagnosed appellant as having a herniated disc with left-side radiculopathy at the L5-S1 level. In July 1984, Dr. Monteiro performed a lumbar laminectomy, but the operation did not significantly improve appellant's condition. Dr. Monteiro performed a second laminectomy at the same level in August 1985. According to Dr. Monteiro, appellant reached maximum medical improvement (MMI) on November 18, 1985, with a ten-percent permanent partial impairment.

In August 1986, appellant came under the care of Dr. William Noran, a neurologist, complaining of lightning-type pain which periodically occurred without warning. Dr. Noran found that this pain was the result of irritation of the L5-S1 nerve root. Dr. Noran believed that appellant reached MMI in March 1987 with a permanent partial impairment in the range of five percent or more. Dr. Noran restricted appellant from lifting over 10 to 25 pounds, ruled out climbing, and allowed only minimal driving. Dr. Noran advised the E/C of these restrictions.

Appellant finally came under the care of Dr. Robert Pohl, an orthopedic surgeon, in April 1987. Dr. Pohl was uncertain when appellant had reached MMI, but believed that this had taken place years earlier when appellant was under the care of Dr. Monteiro. In writing of June 1988, Dr. Pohl opined that appellant had reached MMI with a 20-percent permanent partial impairment rating. Dr. Pohl permanently restricted appellant to lifting no more than 10 to 25 pounds and limited bending and driving.

Throughout the entire course of appellant's treatment, appellant continued to work on and off for the Duval County School Board through January 1988, and appellant received benefits for the times when he was not working. In January 1988, appellant reinjured himself when, on the job, he attempted to move some posts. Dr. Pohl, then appellant's treating physician, took appellant off work but released him to return to light duty on January 19, 1988. Instead of returning to work, however, appellant retired. Appellant did not, at that time, advise the E/C of his claim for benefits, nor did the E/C advise appellant of his entitlement to benefits.

Appellant filed his claim for benefits in June 1988, seeking permanent total disability benefits from January 1988 forward, penalties, interest, costs, and attorney fees. The E/C controverted all claims, arguing in part that appellant had voluntarily retired. In December 1989, the JCC entered his order awarding appellant permanent total disability benefits, costs, interest, and attorney fees from June 27, 1988 forward. In so doing, the JCC accepted Dr. Pohl's opinion that appellant most likely reached MMI prior to June 1988, but found that MMI occurred on that date because Dr. Pohl did not note the date of MMI until requested to do so. The JCC further found that because appellant retired and did not apply for benefits...