Pic N' Save v. Edens, 94-223

• Decision Date: 26 April 1995
• Docket Number: No. 94-223,94-223
• Citation: 653 So.2d 1132
• Parties: 20 Fla. L. Weekly D1031 PIC N' SAVE and Gay & Taylor, Inc., Appellants, v. Faith EDENS, Appellee.
• Court: Florida District Court of Appeals

Page 1132

653 So.2d 1132

20 Fla. L. Weekly D1031

PIC N' SAVE and Gay & Taylor, Inc., Appellants, v. Faith EDENS, Appellee.

No. 94-223.

District Court of Appeal of Florida,

First District.

April 26, 1995.

Elizabeth H. Webb and Robert H. Keeter of McCarty, Helm & Keeter, Gainesville, for appellants.

J.T. Frankenberger of Barton, Soraci, Frankenberger, Surrency & Turnage, Gainesville, for appellee.

SMITH, Senior Judge.

Upon consideration of the record and the briefs in this workers' compensation appeal, we are of the view that the Judge of Compensation Claims (JCC) did not err in relying upon the opinion of claimant's second physician regarding claimant's physical condition and restrictions as the basis for award of temporary partial disability (TPD) during the period February 21, 1992, through January 10, 1993, notwithstanding claimant's first physician had found claimant at MMI before the commencement of that period, and had released claimant to work with no restrictions. Although the second physician did not examine the claimant during the disputed period, it is clear from his testimony that his opinion as to the claimant's condition and its causal relation to her industrial accident was based upon several factors, including the continued existence of the physical symptoms the claimant exhibited when first released to work by her first physician; the subsequent MRI test results revealing protruding degenerative discs at C5-6 and C6-7 levels; and the physician's own physical examination and assessment of the claimant's condition a few days after the end of the disputed period. Both the record evidence and the findings made by the JCC explain the JCC's rejection of the earlier MMI date found by the first physician and his acceptance of the second physician's opinion that claimant reached MMI on February 16, 1993. See Alan McLeod Funeral Home v. Cooksey, 527 So.2d 253 (Fla. 1st DCA 1988) (where medical evidence and claimant's own testimony indicated claimant's inability to work had not changed during disputed period, award of TTD was not erroneous even though no doctor testified directly that claimant could not work during that period); Kenney v. Juno Fire Control Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (it was error for the JCC to refuse to accept examining physician's testimony that claimant was TTD for period during which claimant was not under doctor's care, where between time claimant was released by first doctor as having reached MMI with no impairment and was returned to examining physician, claimant's complaints of pain had not changed and were later confirmed by CAT scan revealing degenerative discs requiring surgery).

Despite our agreement with the appellee-claimant's contention that the JCC did not err in his evaluation of the medical evidence, we are compelled to reverse the award of TPD, and to remand for further findings. In Stacy v. Venice Isles Mobile Home Park, 635 So.2d 1039, 1042 (Fla. 1st DCA), rev. denied, 645 So.2d 455 (Fla.1994), this court held that under the amended version of subsection 440.15(3)(b)2., Florida Statutes (1991), the claimant's burden to demonstrate entitlement to temporary disability benefits may be met by evidence that due to physical limitation, the claimant is unable to do light work uninterruptedly, or with evidence of a good faith, albeit unsuccessful, work search. While we have agreed with the claimant's position, as above noted, that the JCC did not err in interpreting the medical evidence, the JCC's order recites only that the claimant was ...