Shaw v. Publix Supermarkets, Inc.

• Citation: 609 So.2d 683
• Decision Date: 01 December 1992
• Docket Number: No. 91-2547,91-2547
• Parties: 17 Fla. L. Week. D2739 Mildred SHAW, Appellant, v. PUBLIX SUPERMARKETS, INC. and the Hartford Insurance Co., Appellees.
• Court: Court of Appeal of Florida (US)

Page 683

609 So.2d 683

17 Fla. L. Week. D2739

Mildred SHAW, Appellant, v. PUBLIX SUPERMARKETS, INC. and the Hartford Insurance Co.,

Appellees.

No. 91-2547.

District Court of Appeal of Florida,

First District.

Dec. 1, 1992.

Bill McCabe, of Shepherd, McCabe & Cooley, Longwood; Michael B. Murphy, of Stanley, Wines, Bennett, Murphy, Spanjers & Helms, P.A., Winter Haven, for appellant.

Judith J. Flanders, of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Lakeland, for appellee.

PER CURIAM.

Claimant sustained serious injuries to her upper extremity and dominant right hand in an accident on September 29, 1989, as an employee in the Publix supermarket bakery department. Claimant appealed the provision of the Order of the Judge of Compensation Claims (JCC) that denied permanent total disability (PTD) benefits claimed from April 24, 1990. We find it necessary to reverse the order, because the record lacks substantial evidence to support the denial of PTD benefits, and Claimant met the burden set forth in section 440.15(1)(b), Florida Statutes (1989), "to establish that [s]he is not able uninterruptedly to do even light work due to physical limitation." On remand, the JCC shall determine whether there is an issue of "double benefits" and an entitlement to credit to Employer/Carrier (E/C) for the wage-loss benefits ordered payable from November 24, 1990. See Swift & Co. v. Surrency, 467 So.2d 740, 741-42 (Fla. 1st DCA 1985).

The JCC found the number of job searches conducted by Claimant was "so few in number to be insufficient to constitute a good faith job search for any period." In Pan American Bank v. Glinski, 584 So.2d 52, 53-54 (Fla. 1st DCA1991), however, we held that a job search is not a prerequisite for obtaining PTD benefits if a claimant demonstrates inability to engage in gainful employment due to physical limitations. See Carter v. City of Venice, 584 So.2d 577 (Fla. 1st DCA1991); Ernie Haire Ford, Inc. v. Hamilton, 483 So.2d 555 (Fla. 1st DCA1986); Thompkins & Sons Lawn Spray v. Brooks, 452 So.2d 103 (Fla. 1st DCA1984).

Dr. Lane, an orthopedic surgeon, treated Claimant from the day of injury. In his February 16, 1990, report, Dr. Lane noted Publix was very anxious to get Claimant back to work in some capacity, but he said that would be "fairly futile at this point." Two months later, he said Claimant continued to have the same sort of problems with her hand. He recommended vocational rehabilitation because he did not think Claimant could return to her previous position. By the time of discharge from occupational therapy in April 1990, Claimant had received 54 treatments given 2-3 times weekly. The discharge report said pain was a major obstacle to Claimant's progress, and sensation and wrist range motion remained impaired. Dr. Lane's April 24, 1990, report, indicated Claimant had essentially reached maximum medical improvement (MMI). Combining the impairments of the forearm, wrist, range of motion, and grip strength with more subjective analysis of the degree of pain and insensitivity, Dr. Lane gave Claimant a 66% permanent partial impairment of the upper extremity, corresponding to a 40% permanent impairment of the whole person.

In October 1990, Publix offered Claimant light-duty work putting price stickers on bakery containers. The labeling supervisor testified that labels, boxes and bags were brought to Claimant's work area, and Claimant was permitted to work standing or sitting, as needed. Repetitive and simple grasping with one hand was involved, although the medical testimony indicated such movements would cause Claimant considerable pain because of her prior under-use of the arm. Employer offered to change the room temperature, to place Claimant in a separate room, and to provide a cot to accommodate her needs. Claimant was allowed to work at her own pace with no established quotas. Employer allowed flexible arrival and departure times and periodic rest breaks. Claimant attempted to do the work for about 22 hours over six days in late October 1990 but was unable to work more than 3 1/4 hours on any single day. She then discontinued working because she said it was too difficult and painful. These facts distinguish the case sub judice from U.S. Foundry & Manuf. Co. v. Serpa, 564 So.2d 559, 561 (Fla. 1st DCA1990) and Broward County Sheriff's Off. v. Williams, 430 So.2d 968 (Fla. 1st DCA1983).

E/C contend the light-duty working conditions were arranged to assist Claimant's recovery, but not because any medical evidence necessitated special requirements. Employer testified the labeling job typically is performed by its injured employees, and that it is necessary work for which outside employees would otherwise be hired. Claimant asserts that it was agreed she could not return to her former work tasks and that the labeling work was sheltered part-time employment.

Dr. Borrero, a physician specializing in reconstructive surgery, examined Claimant once, on March 11, 1991. He found Claimant had reached MMI prior to the visit, and he determined Claimant had a 10% permanent impairment of the body as a whole according to the AMA Guidelines. Dr. Borrero found Claimant had a full range of motion of the elbow, but wrist range of motion showed mild limitation. He diagnosed severe wrist injury and associated sensory nerve injury, but he indicated some of the limitation, disability, stiffness and excessive pain was due to Claimant's overprotection of the arm. Cf. Winn Dixie Stores, Inc. v. Grubb, 570 So.2d 1371 (Fla. 1st DCA1990) (reversing PTD award as premature, where claimant had not reached overall MMI and the major obstacle to employability was claimant's perception of inability to work). Dr. Borrero said it was natural to be so protective, as Claimant feared something bad would happen to her, but he believed Claimant must force herself to use the hand more vigorously to ensure greater strength and flexibility and to reduce the pain. Dr. Borrero recommended hand therapy three times...