Ronald Allen Trucking Co. v. Helton

• Decision Date: 30 March 1984
• Docket Number: No. AS-65,AS-65
• Citation: 449 So.2d 874
• Parties: RONALD ALLEN TRUCKING COMPANY and Utica Mutual Insurance Company, Appellants, v. James E. HELTON, Appellee.
• Court: Florida District Court of Appeals

Page 874

449 So.2d 874

RONALD ALLEN TRUCKING COMPANY and Utica Mutual Insurance Company, Appellants, v. James E. HELTON, Appellee.

No. AS-65.

District Court of Appeal of Florida,

First District.

March 30, 1984.

Rehearing Denied May 23, 1984.

Margaret E. Sojourner of Haas, Boehm, Brown, Ridgon & Seacrest, Orlando, for appellants.

Jesse F. Sparks, Orlando, for appellee.

THOMPSON, Judge.

The employer/carrier (E/C) appeal from a workers' compensation order awarding permanent total disability (PTD) benefits. We agree with the E/C's contention that claimant should not have been awarded PTD benefits, and reverse.

Claimant is a 43-year-old man with a sixth grade education whose work experience has been limited to truck driving and other types of fairly strenuous physical labor. Shortly after claimant's October 27, 1980 compensable cervical spine injury, he came under the care of Dr. Gilmer, an orthopedic surgeon. Although Dr. Gilmer initially felt that the claimant had an insignificant shoulder injury, he soon suspected cervical radiculopathy and recommended that claimant undergo EMG and myelographic studies. Claimant, citing a fear of needles and a prior bad experience with a myelogram, refused the recommended tests. Dr. Gilmer thereafter treated the claimant conservatively and prescribed an extensive program of physical therapy. On two occasions while under the care of Dr. Gilmer, claimant attempted to return to work for the employer, but was unable to handle his usual duties.

In May of 1981 the E/C engaged a rehabilitation firm to assist claimant in finding less strenuous work. Both Dr. Gilmer and the rehabilitation counselors repeatedly urged claimant to undergo myelographic testing, but he remained adamant in his refusal. Because of the claimant's continuing refusal to undergo testing, Dr. Gilmer reported in August 1981 that claimant had reached maximum medical improvement (MMI) and had a permanent impairment of the body as a whole of 20 percent. Dr. Gilmer attributed 5 percent of claimant's impairment to the industrial accident, and 15 percent of his impairment to claimant's preexisting degenerative arthritis. He recommended that claimant not engage in heavy labor and not return to his job as a truck driver.

In March 1982, the claimant came under the care of Dr. Zilioli, another orthopedic surgeon. Dr. Zilioli also recommended EMG and myelographic studies, but claimant continued to refuse such testing. Dr. Zilioli, like Dr. Gilmer, felt that unless claimant was willing to undergo testing and subsequent surgery should the tests indicate a need for surgery, claimant had reached MMI. In June 1982, he reported that claimant had reached MMI with an overall permanent impairment of 12 percent, 7 percent of which he attributed to the industrial accident. Dr. Zilioli felt that claimant could do "light work ... within the limits of his own tolerance," but advised claimant not to attempt to lift objects weighing in excess of 50 pounds and not to attempt to return to work as a truck driver. He further advised that claimant should not seek employment requiring overhead work or the climbing of ladders or scaffolds.

In the meantime, in May 1982, claimant obtained work as a security guard at a citrus processing plant. The job required that claimant make...