TRANSMED, INC. v. Botts
| Decision Date | 04 March 2004 |
| Docket Number | No. 1D03-1463.,1D03-1463. |
| Parties | TRANSMED, INC., Appellant, v. Glenn BOTTS, Appellee. |
| Court | Florida District Court of Appeals |
James N. Charles, Esquire, Celebration, for Appellant.
Jon E. Benezette, Esquire, Daytona Beach, for Appellee.
The Order Determining Compensability of Claim and Awarding Medical and Disability Benefits by the Judge of Compensation Claims is affirmed, except for the award of temporary partial disability benefits for the period of June 16, 2001 through July 5, 2001. AFFIRMED in part; REVERSED in part and REMANDED.
I would affirm the order of the judge of compensation claims (JCC) in its entirety. It is unclear on what basis the majority has reversed the award of temporary partial disability (TPD) benefits for nearly three weeks following claimant's termination from employment. If the majority considers that reversal is required because claimant's termination occurred as a result of a reason unconnected with his work-related injury, the rule is firmly established that such fact alone does not disentitle an employee from disability benefits. See Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 683-84 (Fla. 1st DCA 1997) (en banc)
. It must also be decided whether claimant satisfied his burden of establishing a causal connection between the injury and loss of earning capacity after termination. See Jefferson v. Wayne Dalton Corp., 793 So.2d 1081, 1084 (Fla. 1st DCA 2001). In my judgment, claimant has made such showing.
The record discloses that claimant, Glenn Botts, was involved in a work-related traffic accident on March 12, 2001, and suffered injuries to his neck, left wrist, left elbow and scapula. These injuries, according to the treating physician, Dr. John A. Ortolani, a board-certified neurologist, resulted in a left-side herniated disc, bilateral carpal tunnels and a cervical radiculopathy of C6-7. Dr. Ortolani opined that claimant could continue working for the employer only in a light-duty capacity, and he specifically restricted him from heavy lifting, from the date of March 19, 2001, claimant's first office visit, until the date of maximum medical improvement, July 5, 2001. The physician's testimony provided the foundation for the JCC's award of TPD benefits during such time span. Dr. Ortolani further opined that claimant had a ten-percent impairment rating, which the JCC also accepted in awarding claimant impairment benefits.1 Finally, based on the physician's opinion that the injuries to claimant's hands might require surgery in the future, the JCC authorized an evaluation to be conducted with a hand surgeon.2
In addition to the medical evidence, claimant testified that following the accident the employer reduced his work schedule from 60 hours per week to 36 hours. And, although he found full-time employment after he had been terminated on June 15, 2001, he continued to experience neck and upper-left-extremity pain. I believe it reasonably clear from my review of the record that claimant established the requisite nexus between his compensable injury and the wage loss claimed. Indeed, the majority's opinion acknowledges the sufficiency of such proof as to the TPD benefits requested before claimant's separation from employment.
If the majority considers that claimant failed to establish his burden of showing entitlement to wage loss thereafter because of his acquisition of post-termination employment, I would answer that the burden of presenting such evidence was not on claimant, but on the employer. This court has recognized that a claimant may satisfy his or her initial burden of establishing a causal nexus between the industrial injury and the economic loss by, among other...
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