Superior Pontiac v. Hearn

• Decision Date: 14 November 1984
• Docket Number: No. AY-266,AY-266
• Citation: 458 So.2d 1197
• Parties: SUPERIOR PONTIAC and Lynn Underwriting, Appellants, v. Wayne H. HEARN, Appellee.
• Court: Florida District Court of Appeals

Page 1197

458 So.2d 1197

SUPERIOR PONTIAC and Lynn Underwriting, Appellants, v. Wayne H. HEARN, Appellee.

No. AY-266.

District Court of Appeal of Florida First District.

Nov. 14, 1984.

Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellants.

Joseph V. Barrs of Barrs, Williamson & Levens, Tampa, for appellee.

SMITH, Judge.

Appellants Superior Pontiac and Lynn Underwriting appeal a final order issued by the deputy commissioner granting appellee Wayne H. Hearn temporary partial disability (TPD) and wage loss benefits. Appellants contend that the evidence does not support an award of either type of benefit. We agree and therefore reverse.

Hearn, while working for Superior Pontiac as an automobile mechanic, suffered a potentially compensable industrial accident on January 31, 1981, when he dropped a radial tire on the small finger of his right hand. He was treated for his injury by Dr. Martinez, who diagnosed a fracture of the fifth metacarpal and sequestrian's disease, a form of reflex sympathetic dystrophy. This diagnosis was confirmed by Dr. Boling, both initially in 1981 and upon re-examination in 1983. Dr. Martinez released Hearn to return to work April 1, 1981. Hearn did so and continued to work for Superior Pontiac until August 12, 1982.

Hearn testified at the hearing below that he left his job with Superior Pontiac because his finger continued to bother him to the extent that he was not able to accept certain repair jobs offered by Superior Pontiac, with the result that he was earning less income than prior to his accident. ¹ However, the only evidence offered by Hearn to substantiate this claim was the testimony of a supervisor, Kyle Cook, that on one occasion Hearn turned down a proffered under-dash repair job because his hand bothered him while working at that "certain position." Hearn voluntarily left Superior Pontiac August 12, 1982. Shortly before this, he sold the bulk of his personal tools which he used during work at Superior Pontiac. Hearn admitted on cross-examination below that he had informed Mr. Cook that he sold these tools in order to pay off a delinquent child support obligation to avoid imprisonment by the circuit court. Also admitted into evidence below was a letter allegedly written by Hearn to his ex-wife which, among other things, stated "I sold my tools to pay you the last time and there is nothing else to sell." Finally, Hearn also admitted on cross-examination that automobile dealerships in the area did not furnish tools for their mechanics.

After leaving Superior Pontiac on August 12, 1982, Hearn was employed by his father-in-law in a commercial printing business, working for two months and earning $40.00 in commissions. Subsequently, Hearn began employment at an Exxon service station in November 1982, working as the station's chief mechanic, a job Hearn apparently maintained through the date of the hearing before the deputy commissioner. His average weekly income at the Exxon station for the remainder of 1982 was $231.63, and was $217.67 through May 1983. Payroll records at Superior Pontiac show that in 1980, the year prior to his injury, Hearn's average weekly wage was $302.75; from April 1, 1981, when he returned to work for Superior Pontiac after his surgery, until the end of 1981 it was $317.11; and that for the year 1982, it was $332.80.

The medical evidence below consisted of the notes and medical reports of Drs. Martinez and Boling. Dr. Martinez reported that Hearn reached maximum medical improvement on November 1, 1982, with a permanent impairment rating of 2% to the injured hand when compared to the whole body. However, Dr. Martinez opined that Hearn, in spite of his permanent impairment, was capable of returning to his previous job with Superior Pontiac. Dr. Boling, although finding no objective clinical signs of permanent impairment, rated Hearn as suffering from a 10% impairment of the hand based on Hearn's subjective complaints only. Even so, Dr. Boling concurred with Dr. Martinez regarding Hearn's ability to return to work at the same job he performed prior to his injury.

In the order appealed from, the deputy noted that the parties had stipulated that the date Hearn reached maximum medical improvement was November 1, 1982. In specifically crediting Hearn's testimony at the hearing, the deputy found that while one of the reasons Hearn left Superior Pontiac was because he had sold his tools, this was not the only reason. More particularly, the deputy found that Hearn left Superior Pontiac partially because he was no longer able, as a result of his finger injury, physically to keep up with his employment duties. Although the deputy expressed uncertainty as to whether Hearn was entitled to wage loss benefits where, even though suffering from permanent physical impairment, the medical testimony was that he was capable of performing his former occupation, the deputy awarded the benefits, stating that he was "leaving it up to [this] court" to establish the proper rule of law in such a situation. We agree with the E/C's contention that our decision in C & B Interiors v. Crispino, 446 So.2d 242 (Fla. 1st DCA 1984), points to a result adverse to the claimant on this issue, and that the deputy commissioner's ruling must therefore be reversed.

In Crispino, the claimant sustained a compression fracture which was rated by the examining physician as resulting in a 6% permanent impairment. As here, the treating physician in that case placed no physical restrictions on the claimant and further testified that the claimant could return to his previous job. In reversing an award received by the claimant, this court in Crispino held that a claimant's continued subjective complaints of pain are insufficient,...