Scott v. Container Corp. of America, 89-639

CourtCourt of Appeal of Florida (US)
Citation559 So.2d 399
Docket NumberNo. 89-639,89-639
Parties15 Fla. L. Weekly D940 Raymond SCOTT, Appellant, v. CONTAINER CORPORATION OF AMERICA and Fred S. James and Company of Florida, Appellees.
Decision Date10 April 1990

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

Thomas S. Edwards, Jr., and Bradley R. Johnson, Jacksonville, for appellees.

ZEHMER, Judge.

Raymond Scott, claimant, appeals a workers' compensation order denying in its entirety his claim for temporary total disability, permanent total disability, temporary partial disability, or permanent wage loss benefits, evaluation and treatment through a rehabilitation program, and costs and attorney's fees.

Employer and carrier acknowledge that they owe claimant temporary total disability benefits pursuant to section 440.15(2) Florida Statutes (1987), from May through August of 1987, so the order must be reversed to the extent that it denies temporary total disability benefits for that period.

The order must also be reversed to the extent that it denies claimant's entire claim. Although the record supports the judge's denial of total disability benefits, either as a continuation of temporary total disability benefits previously ordered 1 or an award of permanent total disability benefits, the record does not support the denial of all claims. The indications by both Dr. MacMillan and the Casa Colina medical records (both of which were relied on by the judge below) that claimant can return to work only with some retraining are patently inconsistent with claimant having reached maximum medical improvement with no permanent impairment; yet, the legal effect of the ruling denying claimant's entire claim is that he has reached maximum medical improvement with no permanent impairment.

Claimant requested either temporary partial disability benefits (temporary wage loss benefits) 2 or permanent wage loss benefits 3 as an alternative to temporary total disability or permanent total disability benefits. To be entitled to temporary partial disability benefits pursuant to section 440.15(4), an injured employee must have partially recovered his ability to work but must not have reached maximum medical improvement. Ringling Brothers v. O'Blocki, 496 So.2d 947 (Fla. 1st DCA 1986). An injured employee who has reached maximum medical improvement and is suffering from a permanent impairment, but is only partially disabled from working, may be entitled to permanent wage loss benefits pursuant to section 440.15(3)(b). Cumberland Farm Food Stores v. Meier, 408 So.2d 700 (Fla. 1st DCA 1982). As a prerequisite to entitlement to either temporary or permanent wage loss benefits, however, the claimant, to demonstrate that such disability has prevented him from obtaining gainful employment, must either conduct a good faith work search or be excused from making such a search. Griffith v. McDonalds, 526 So.2d 1032 (Fla. 1st DCA 1988); Piccadilly Cafeteria v. Polite, 433 So.2d 591 (Fla. 1st DCA 1983).

There is no basis for concluding that claimant has reached maximum medical improvement. This record contains no opinion from any doctor nor statement in any medical records that claimant has reached maximum medical improvement or that he has no permanent impairment, and the record does not support inference of either fact. The only medical evidence regarding claimant's condition subsequent to the prior, non-appealed order finding claimant temporarily totally disabled 4 is found in the records of Casa Colina and the deposition and records of Dr. MacMillan. Both Dr. MacMillan and the Casa Colina records indicate that claimant can return to work if he initially limits his work day to six hours and completes some kind of work reentry program. This restriction indicates the presence of some medical impairment. Dr. MacMillan diagnosed claimant as suffering from myofascial pain syndrome, 5 and the record does not contain any evidence that disputes this diagnosis. Dr. Visconti's and Uricchio's statements that they found no objective basis for claimant's complaints do not conflict with Dr. MacMillan's diagnosis. First, nothing in the record proves that myofascitis would necessarily exhibit symptoms that are subject to objective findings. Second, Drs. Visconti and Uricchio examined claimant approximately two years prior to the earlier, non-appealed order that found claimant temporarily totally disabled by a then-existing medical impairment and well prior to claimant's participation in the Casa Colina program. Thus, their records do not constitute competent, substantial evidence of claimant's present condition. See Walker v. Allied Septic Tanks, 522 So.2d 456 (Fla. 1st DCA 1988); Romero v. Waterproofing Systems of Miami, 491 So.2d 600 (Fla. 1st DCA 1986); Reynolds v. Neisner Brothers, Inc., 436 So.2d 1070 (Fla. 1st DCA 1983). The only fair construction of the medical evidence in this record is that claimant still suffers some degree of impairment and either has not reached maximum medical improvement or has reached maximum medical improvement with some degree of permanent impairment.

Regarding employer and carrier's argument that claimant failed to conduct an adequate work search, the record contains no evidence indicating that...

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6 cases
  • Nickolls v. University of Florida
    • United States
    • Florida District Court of Appeals
    • 4 Septiembre 1992
    ...575 So.2d 734 (Fla. 1st DCA 1991); Pan American World Airways v. Mash, 573 So.2d 383 (Fla. 1st DCA 1991); Scott v. Container Corp. of Am., 559 So.2d 399 (Fla. 1st DCA 1990); Parker v. Eaton Corp., 554 So.2d 644 (Fla. 1st DCA 1989); Coleman v. Champion Int'l, Inc., 552 So.2d 1196 (Fla. 1st D......
  • City of Miami v. Jacoby
    • United States
    • Florida District Court of Appeals
    • 29 Abril 1992
    ...Corp., 575 So.2d 734 (Fla. 1st DCA1991); Pan Am. World Airways v. Mash, 573 So.2d 383 (Fla. 1st DCA1991); Scott v. Container Corp. of Am., 559 So.2d 399 (Fla. 1st DCA 1990); Parker v. Eaton Corp., 554 So.2d 644 (Fla. 1st DCA1989); Coleman v. Champion Int'l Inc., 552 So.2d 1196 (Fla. 1st DCA......
  • Rolle v. Picadilly Cafeteria
    • United States
    • Florida District Court of Appeals
    • 3 Enero 1991
    ...the validity of a claim. Rather, the nature of the injury may preclude such objective findings. See Scott v. Container Corp. of America, 559 So.2d 399, 401 (Fla. 1st DCA 1990). Further, Dr. Kahn's failure to make such findings does not negate claimant's improvement under his care--which imp......
  • Entenmann's Bakery v. Smith, 92-751
    • United States
    • Florida District Court of Appeals
    • 18 Junio 1993
    ...cannot be awarded prior to the claimant's reaching MMI from both disorders. Id., 466 So.2d at 415, 418; Scott v. Container Corp. of America, 559 So.2d 399, 400 n. 3 (Fla. 1st DCA1990); Cumberland Farm Food Stores, 408 So.2d at 700. Dr. Hinds testified that Claimant had reached orthopedic MM......
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