Rodriguez v. Sheraton Bal Harbour Hotel

• Decision Date: 23 June 1987
• Docket Number: No. BO-377,BO-377
• Citation: 509 So.2d 369,12 Fla. L. Weekly 1524
• Parties: 12 Fla. L. Weekly 1524 Manuel RODRIGUEZ, Appellant, v. SHERATON BAL HARBOUR HOTEL and Cigna, Appellees.
• Court: Florida District Court of Appeals

Page 369

509 So.2d 369

12 Fla. L. Weekly 1524

Manuel RODRIGUEZ, Appellant, v. SHERATON BAL HARBOUR HOTEL and Cigna, Appellees.

No. BO-377.

District Court of Appeal of Florida,

First District.

June 23, 1987.

Rehearing Denied July 31, 1987.

Marcos A. Gonzalez, of Sadow, Lynne and Gonzalez, North Miami, for appellant.

Rosalind R. Kalinsky and H. George Kagan, of Miller, Hodges, Kagan & Chait, Deerfield Beach, for appellees.

MILLS, Judge.

Manuel Rodriguez appeals from an order of the deputy commissioner denying his claim for temporary partial benefits. Under the circumstances of this case, we reverse.

Although employed by the Sheraton Bal Harbour Hotel (E/C) as a maintenance supervisor, Rodriguez also performed some manual duties because of chronic personnel shortages. He injured his right elbow and back in a compensable accident in March 1984, and on 20 April 1984, his treating physician released him to light work. There is no evidence in the record that any other type of work was ever medically authorized. Dr. Guerra, to whom Rodriguez was referred in February 1985, also placed restrictions on his employment requiring no lifting or climbing, no repetitive kneeling or bending, and no standing for more than two hours nor sitting for more than one.

After his release, Rodriguez returned to work for the E/C, again doing manual labor despite his medical restrictions because of personnel shortages. It was his testimony that, although he performed whatever duties were required to keep his job, he worked in pain and felt that his injuries had worsened as a result of the heavy work. Rodriguez continued to work for the E/C until 17 December 1984, when he voluntarily resigned over a dispute with another supervisor.

Rodriguez immediately commenced a job search, making approximately twenty contacts a month. The job search lists submitted to the E/C indicated that he sought light work only. On 20 February 1985, he obtained employment with a condominium complex which he was able to continue for only three weeks, or until 11 March 1985, when he quit because he felt physically unable to work the additional nights and weekends demanded by the employer. He recommenced his job search, obtaining a second job with a hotel on 4 April 1985; he was laid off after two months. Once again, he looked for work, next obtaining employment with another hotel in July 1985, where he is still employed.

The deputy commissioner denied and dismissed Rodriguez's claim for temporary partial benefits based on the injury. The deputy found that he had voluntarily limited his income and failed to accept employment commensurate with his abilities by seeking only light work. He rejected both medical opinions as to restrictions on employment, finding that the "heavy" duties actually performed by Rodriguez after the injury showed those opinions to be erroneous and demonstrated that he could have been working full time at heavy labor with no wage loss.

Rodriguez first argues that the deputy erred in rejecting uncontradicted medical opinion that he was medically restricted to light work. The general rule is that, where testimony is uncontradicted, a finding contrary to the weight of that evidence is not supported by competent substantial evidence. Loughan v. Slutz Seiberling Tire, 483 So.2d 1389 (Fla. 1st DCA 1986). While we specifically do not hold that there is no case in which a deputy might find...