Roll v. Sebastian Inlet
| Decision Date | 01 December 1992 |
| Docket Number | No. 91-2085,91-2085 |
| Citation | 609 So.2d 674 |
| Parties | 17 Fla. L. Week. D2723 James ROLL, Appellant, v. SEBASTIAN INLET, SRA (State of Florida) and Division of Risk Management, Appellees. |
| Court | Florida District Court of Appeals |
Robert C. Gray of Alpizar & Gray, R.A., Palm Bay; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.
Derrick E. Cox of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.
Claimant, James Roll, appeals an order denying his claim for permanent total disability (PTD) benefits, wage-loss (WL) benefits from April 1, 1990 to the date of the hearing (April 25, 1991), and costs, penalties, and attorney's fees. We affirm the denial of PTD benefits, reverse the denial of WL benefits, costs, penalties, and attorney's fees and remand the case for further proceedings.
Roll, 64 years old at the time of the final hearing, testified that he injured his back on January 23, 1989, while employed as a park ranger for the State of Florida. Roll returned to work one month thereafter and worked for approximately nine months, but found his employment duties too difficult. He was offered a job as toll collector, which he performed for about five more months. 1 The position primarily involved receiving visitors at the park entrance, with some maintenance of the entrance station and restrooms. Roll testified that he experienced physical pain daily doing this job, yet he did not complain to his supervisor, Ronald Johns.
Dr. Gregory Priest, a chiropractor who treated Roll for two years, diagnosed claimant's condition as moderate to severe lumbosacral strain/sprain with associated myofascitis and functional intersegmental hypomobility, and opined that claimant reached maximum medical improvement (MMI) on August 25, 1989, with a permanent impairment (PI) of 15 percent to the body as a whole. He released Roll to light-duty work with limitations including no lifting over 25 pounds, minimal bending, stooping or twisting, no standing or sitting for more than 15 or 20 minutes, no frequent standing or walking, no climbing stairs, and no auto trips of more than 15 to 30 minutes.
Dr. Duane L. Seig, an orthopedist who had treated claimant before Dr. Priest, examined Roll on October 24, 1990 for the employer/carrier (E/C), and reported that claimant's diagnosis was recurrent lumbar sprain and progressive degenerative arthritis of both hips. He concluded that claimant had a ten percent PI of the lumbar spine, of which he assigned only four percent to the accident of January 23, 1989, and that claimant was not totally disabled but could work in a relatively sedentary occupation, so long as he engaged in limited walking, climbing, squatting, kneeling, no strenuous activity involving the lower extremity, and no lifting over 35 to 40 pounds on an occasional basis. He concluded that claimant had reached MMI.
Claimant testified that his pain had "progressed" while he was working as a tollbooth operator to such an extent that he was forced to retire on March 31, 1990. When specifically asked why he retired, Roll testified that he was worried he would receive a "bad efficiency rating" and wanted to retire with full benefits before the state reduced his benefits because of his deteriorating physical condition. Ronald Johns said that claimant was in no danger of losing his job or his retirement benefits based on his physical condition. Claimant told Dr. Priest that he wished to retire because he was upset that he had been reduced from ranger to toll collector as a result of his physical condition.
The judge of compensation claims (JCC) denied the claim for both PTD benefits and WL benefits from April 1990 to the date of the hearing. The JCC concluded that the testimony showed that the job as toll collector was "extremely light duty and possibly sedentary in nature," thus within claimant's restrictions as imposed by both Dr. Seig and Dr. Priest. The JCC also determined that claimant retired because he had reached retirement age and not because of anything relating to his industrial injury. Because there was medical testimony that claimant was capable of light-duty work, and evidence that the employer had a job available for him, the JCC denied PTD benefits.
To be entitled to PTD benefits, a claimant must show that he or she is unable to do light work uninterruptedly due to physical limitations, or that he or she has conducted a lengthy, exhaustive job search that has proved futile. Carter v. City of Venice, 584 So.2d 577 (Fla. 1st DCA 1991). Claimant did not establish an inability to perform light work uninterruptedly, as there was medical evidence, in the form of Dr. Seig's opinion, that claimant was capable of performing work in a sedentary occupation. In addition, the toll-collector job remained available to claimant until shortly before the final hearing. We therefore affirm on this point.
We reverse the JCC's denial of WL benefits, however, for the period of time from April 1, 1990 until May 9, 1990, the day claimant began his job search. No evidence was presented that the E/C notified claimant of his obligation to conduct a work search upon his retirement on March 31, 1990. The JCC, however, rejected claimant's contention that the employer's failure to send claimant a WL letter automatically entitled him to WL benefits, stating that claimant was aware that his employer had a job available for him and knew, through his attorney, of his responsibility to conduct a work search. We cannot agree. The E/C's responsibility to inform Roll of this obligation was not discharged by claimant's voluntary retirement, when the evidence showed that the employer was fully aware that claimant was limited to light-duty employment as a result of his 1989 industrial injury. Alberta v. American Freight Systems, 565 So.2d 378 (Fla. 1st DCA 1990) (). Claimant is therefore entitled to WL benefits from April 1, 1990, until the day he began his work search, May 9, 1990.
The dissent expresses the view that the E/C was only obligated to inform claimant of the need for a work search if the E/C knew or reasonably should have known that his voluntary retirement was related to the industrial accident. Judge Wolf distinguishes the present case from Alberta because at the time Alberta voluntarily retired, the E/C did not offer employment within Alberta's restrictions; thus, it was reasonable and necessary for the E/C to inform Alberta of the need for a job search.
Although Alberta might be factually distinguishable, our position is supported as well by Phillips v. Duval County School Board, 577 So.2d 630 (Fla. 1st DCA 1991). In Phillips, the claimant had a permanent impairment and a variety of physical restrictions. After claimant was released for light duty and the employer had light-duty work available, the claimant retired. Similar to the instant case, the E/C did not thereafter inform claimant of his need to conduct a job search. As in Alberta, this court held that the E/C was required to inform the claimant of the need for same, stating:
This case differs from Alberta only in the respect that appellant decided to retire despite the existence of available employment with his current employer. The question, however, is not whether the E/C offered a position to appellant but whether the E/C knew or should have known of appellant's possible entitlement to benefits. We have no difficulty concluding, under the circumstances, that the E/C were required to inform appellant of his rights and obligations under the Act. Appellant sustained two compensable back injuries which required two major surgical procedures and extensive treatment.... Each of appellant's three major treating physicians found that appellant had reached MMI with a permanent partial impairment, and each assigned comparable restrictions.
Id. at 632 (emphasis added). Admittedly, the claimant's injuries in Phillips may have been more extensive than Roll's, and, in the case at hand, the claimant demonstrated his ability to perform light-duty work by holding the toll collector position for a number of months prior to voluntary retirement. Still, the E/C at bar was aware that claimant had sustained a permanent impairment with substantial restrictions. Consequently, the E/C was obligated to inform claimant of the need for a work search.
In regard to the claim for WL benefits for the period of time that claimant performed a work search, we reverse the order of denial and remand the case for further findings because we are unable to find record support for the JCC's determination that claimant's job search was "grossly inadequate" due to the JCC's perception that "he was looking for work that...
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