Stewart v. CRS Rinker Materials Corp.

• Decision Date: 03 October 2003
• Docket Number: No. 1D02-1469.,1D02-1469.
• Citation: 855 So.2d 1173
• Parties: Kenneth STEWART, Appellant, v. CRS RINKER MATERIALS CORP., Appellees.
• Court: Florida District Court of Appeals

855 So.2d 1173

Kenneth STEWART, Appellant, v. CRS RINKER MATERIALS CORP., Appellees.

No. 1D02-1469.

District Court of Appeal of Florida, First District.

October 3, 2003.

Mark Dickstein, Esq. of Feldman, Dickstein & Getz, LLP, North Miami Beach; Jay M. Levy, Esq. of Jay M. Levy, P.A., Miami, for Appellant.

Frank Angione, Esq. and April R. Burnette, Esq. of Benson, McGrath, Douglas, Angione, Phillips & Ross, P.A., Ft. Lauderdale, for Appellees.

LEWIS, J.

Claimant, Kenneth Stewart, seeks review of a workers' compensation order and argues that the Judge of Compensation Claims ("JCC") erred in denying temporary partial disability ("TPD") benefits for the time periods from November 1, 2000, through December 10, 2000, and from January 4, 2001, through April 24, 2001, because the JCC improperly based her denial solely upon appellant's termination from his employment. Because the JCC relied solely on claimant's termination as a basis for the denial of TPD benefits for these time periods and failed to consider whether claimant satisfied his burden of establishing a causal connection between his work-related injury and his loss of earning capacity after his termination, we reverse the order and remand with directions. Claimant also contends that the JCC erred in denying TPD benefits for the time period from July 21, 2001, through September 23, 2001, because the JCC did not find that claimant's relocation during this period was the product of an improper motivation on his part. We agree and, therefore, reverse the JCC's denial of TPD benefits for this time period as well.

Claimant, who worked as a plant laborer for CSR Rinker Materials Corporation ("Employer"), which is located in West Palm Beach, Florida, suffered a compensable work-related injury on October 5, 2000, when a heavy truss "slammed [him] to the ground." During the hearing before the JCC, claimant testified that his plant laborer position had consisted of cutting steel, building trusses, loading and unloading trucks, and assisting in other work. While claimant initially earned $7.50 an hour in this position, he eventually began earning $8.00 an hour.

According to claimant, as a result of his work-related accident, he suffered serious pain down his back, buttocks, and through his left leg. On the day of the accident, claimant sought medical treatment and was prescribed pain medication. Claimant subsequently underwent an MRI and received physical therapy. Claimant further testified that, while he continued to work with the Employer after his work-related accident, the Employer modified his responsibilities to light-duty work such as cleaning the shop. Claimant worked for the Employer for approximately three weeks after his work-related accident until the Employer terminated him on November 1, 2000, for excessive absenteeism.¹ According to claimant, his low back complaints worsened after his termination.

Subsequent to his termination, claimant unsuccessfully applied for different positions with three hospitals and various fast food restaurants and for vocational training. On May 23, 2001, Ocean Tree Condominium ("Ocean Tree") initially hired claimant as a maintenance technician but eventually reassigned him to a housekeeping position as a result of his work restrictions. In July 2001, claimant relocated to Pensacola because he and his wife were having marital problems and he thought he needed "to be with his family, be back home with [his] mom." While there, claimant worked for the city of Pensacola as a laborer for eight hours one day and four hours the next, earning $6.25 an hour. Due to his inability to perform his job duties, claimant quit his job after those two days. Claimant returned to West Palm Beach in September 2001 and resumed working for Ocean Tree, where he was working at the time of the hearing, earning $9.50 an hour.

Via deposition, Dr. Musso testified that, after evaluating claimant on October 30, 2000, and conducting an MRI, his opinion was that claimant suffered from a lumbar disk herniation at L5-S1. Dr. Musso recommended that claimant begin a physical therapy program, placed claimant on light-duty work status, and maintained him on such after claimant's November 13, 2000, visit. According to Dr. Musso, when he first evaluated claimant, claimant was on light-duty work status, with a maximum lifting restriction of twenty pounds, and was unable to return to work at that time. After recommending that claimant undergo a functional capacity evaluation ("FCE") and after receiving those test results, Dr. Musso placed claimant at maximum medical improvement ("MMI") on January 4, 2001, with a 7% permanent physical impairment rating. At that time, Dr. Musso did not place any work restrictions on claimant due to claimant's uncooperativeness with the FCE. However, when Dr. Musso saw claimant on March 15, 2001, he "put him back to work" on modified-work duty.

Dr. Rubenstein, who performed claimant's FCE on December 20, 2000, and who testified via deposition, opined that claimant was able to work in a sedentary to light-duty capacity. In his medical report, Dr. Rubenstein also opined that claimant was unable to return to his previous job description. Dr. Krost, who initially saw claimant on April 25, 2001, testified, via deposition, that claimant suffered a low back injury and concurred with claimant's light-duty work status. While Dr. Krost did not believe that claimant had reached MMI at that time, he subsequently placed claimant at MMI on October 17, 2001. As a result of his Independent Medical Evaluation, which he conducted on May 17, 2001, Dr. Reuter opined that claimant suffered from cervical strain/sprain, lumbar strain/sprain, lumbar disc herniation, and radiculitis. Dr. Reuter further opined that claimant was able to work in a modified light-duty status with a lifting restriction of no more than fifteen pounds and with significant restrictions as to bending, sitting, and stooping.

While in Pensacola, claimant was authorized to be seen and treated by Dr. Buchalter, who agreed with a recommendation that claimant undergo epidural steroid injections and that he continue on light-duty work status. Dr. Buchalter released claimant to full-time maintenance work on a light-duty work status pending the completion of the injective therapy. He opined that claimant had not yet reached MMI.

In her order, the JCC set forth that, while the Employer terminated claimant on November 1, 2000, for violation of the Employer's Absentee Policy, claimant could still be entitled to benefits if he satisfied the burden of showing that his work-related injury contributed to his wage loss after the termination. The JCC also set forth that, although a job search was no longer a requirement for TPD benefits, here, claimant testified that he unsuccessfully applied for various jobs following his termination. After setting forth the pertinent facts, the JCC determined that:

Claimant had demonstrated his earning capacity in the job with the Employer prior to his termination for excessive absenteeism. But for his excessive absences and tardiness, he would have remained an Employee of the Employer. Therefore, I find that for the period of November 1, 2000, through December 10, 2000, the Claimant failed to demonstrate that his loss of earnings was caused by an incapacity to earn because of the work injury, either in the job he had with the Employer or any other Employment. Accordingly, the claim for [TPD] benefits ... is denied.

With regard to the time period from January 4, 2001, through April 24, 2001, the JCC rejected Dr. Musso's initial opinion that claimant reached MMI on January 4, 2001. According to the JCC, she found Dr. Musso's revised March 15, 2001, opinion of modified duty to be more consistent with the FCE results and the fact that claimant's work injury warranted an impairment rating. The JCC then set forth that:

Therefore, I find that for the period of January 4, 2001, through March 15, 2001 and thereafter through April 24, 2001, the date before the Claimant was first seen by Dr. Krost, the Claimant was able to work with restrictions. However, I find that the Claimant failed in his burden to show that his loss of earnings for the period was caused by an incapacity because of the work injury. As I previously found, post-October 5, 2000, the Claimant demonstrated an earnings capacity with the Employer herein until he was terminated for cause on November 1, 2000. For the period prior to the termination, the only evidence put forth by the Claimant with respect to his diminished earnings, was lost time for attendance at doctor appointments and physical therapy, and allegedly being sent home due to side effects experienced from pain medication. He gave no testimony of any injury related physical problems in performing his light duty job of cleaning the shop.

Consequently, the JCC denied TPD benefits for this time period.

As to claimant's claim for TPD benefits for the time period from July 21, 2001, through September 23, 2001, the JCC found that claimant remained in his position at Ocean Tree until July 20, 2001, when he relocated to Pensacola as a result of family/marital problems. Based upon claimant's unrefuted testimony of physical problems experienced during his brief attempt at working for the city of Pensacola and Dr. Buchalter's objective examination findings, the JCC awarded claimant TPD benefits for the two days claimant worked. The JCC then concluded that:

Therefore, but for his relocation to North Florida, [claimant] would have maintained the earning capacity he had established with Ocean Tree Condominium. Therefore, his loss of earnings after his employment with the city of Pensacola and before

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