Suncrete Corp. v. Schofield, BJ-8

• Decision Date: 13 June 1986
• Docket Number: No. BJ-8,BJ-8
• Citation: 490 So.2d 990,11 Fla. L. Weekly 1341
• Parties: 11 Fla. L. Weekly 1341 SUNCRETE CORPORATION and Southeastern Fire Insurance Company, Appellants, v. Vincent J. SCHOFIELD, Appellee.
• Court: Florida District Court of Appeals

Page 990

490 So.2d 990

11 Fla. L. Weekly 1341

SUNCRETE CORPORATION and Southeastern Fire Insurance Company, Appellants, v. Vincent J. SCHOFIELD, Appellee.

No. BJ-8.

District Court of Appeal of Florida,

First District.

June 13, 1986.

Rehearing Denied July 21, 1986.

Robert A. Donahue, of Cooper, Rissman & Weisberg, P.A., Orlando, for appellants.

J.W. Chalkley, III, of Chalkley & Sims, P.A., Ocala, for appellee.

SMITH, Judge.

Suncrete Corporation and Southeastern Fire Insurance Company (E/C) appeal a final order of the deputy commissioner which awarded appellee Vincent J. Schofield (claimant) temporary total disability benefits, and which found claimant permanently impaired as the result of an industrial accident. The E/C contend that the deputy erred in both of these rulings. We affirm in part, reverse in part, and remand for further proceedings.

Claimant, employed by Suncrete as a concrete finisher, was injured on June 15, 1983, during the course and scope of his employment when he fell from a ten-foot high ladder, striking the concrete floor on his elbows and knees. Medical examination revealed an osteochondral fracture of the distal femur bone of his left knee, a condition for which claimant underwent arthroscopic surgery in July, 1983. Claimant was placed on a postoperative physical therapy program consisting of quadriceps exercises by Dr. Martin Freed, his treating physician. In January, 1984, Dr. Freed advised claimant to begin swimming and light jogging exercises, but cautioned claimant to discontinue all physical therapy if his injured left knee began to swell or otherwise cause him significant discomfort. Dr. Freed later testified that claimant was capable of returning to light-duty work no earlier than April 4, 1984.

However, claimant subsequently began employment with another firm, Florida Concrete Finishers, in February, 1984. Claimant's job duties with this company were similar to his duties with Suncrete. Claimant testified that he had received a notice of termination of TTD benefits from the E/C on February 17, 1984 which, he stated, caused him to seek reemployment so as to "make up" the income lost when his workers' compensation benefits were discontinued. The E/C admitted terminating claimant's TTD benefits, but produced for the record below a notice, purportedly sent to claimant on February 23, 1984, recommencing claimant's benefits and acknowledging that the information upon which it relied in discontinuing claimant's benefits was erroneous. Claimant admitted receiving this latter notice, although he was unable to recall at his deposition the precise date of this occurrence. Claimant also admitted continuing to work for Florida Concrete Finishers after his TTD benefits were reinstated, although he was unable to recall the time period he was so employed. At the hearing on claimant's claim for TTD benefits from April 4 and continuing, the E/C introduced payroll records from Florida Concrete Finishers indicating that claimant began work prior to February 24, 1984 and continued to work off and on until May 1, 1984. Testimony of both the claimant and the owner of Florida Concrete established that claimant was given light duty, was never able to work a full week, and could work only intermittently.

Although Dr. Freed testified that he had released claimant to return to light-duty work after April 4, 1984, he was able to recall only one specific date when he so informed claimant of this work release, July 20, 1984, when an entry in Dr. Freed's medical notes stated that, as of that date, claimant was capable of "return[ing] to some form of activity." Claimant, on the other hand, testified that his first recollection of being told by Dr. Freed that he was released to return to work was on August 20, 1984. In any event, claimant admitted that he conducted no work search during the time period between his job with Florida Concrete Finishers, May 1, 1984 and the date Dr. Freed found claimant to have reached MMI, October 1, 1984.

In the order appealed, the deputy commissioner found claimant temporarily totally disabled from work for the weeks ending March 23, April 20, and April 27, 1984. However, the deputy also found, based upon the payroll records of Florida Concrete Finishers, that claimant had actually worked on the weeks ending February 24, March 8, March 16, March 30, April 6, April 13, and May 1, 1984. Accordingly, the deputy commissioner ordered the E/C to pay claimant TTD benefits from March 18 through March 24, April 15 through April 28, and May 2 through October 1, 1984....