U.S. Fidelity and Guar. Ass'n v. Kemp

• Decision Date: 15 August 1995
• Docket Number: No. 94-3858,94-3858
• Parties: 20 Fla. L. Weekly D1860 UNITED STATES FIDELITY AND GUARANTY ASSOCIATION and Mark Dunning Industries, Appellants, v. Hal KEMP, Appellee.
• Court: Florida District Court of Appeals

Page 1212

658 So.2d 1212

20 Fla. L. Weekly D1860

UNITED STATES FIDELITY AND GUARANTY ASSOCIATION and Mark Dunning Industries, Appellants, v. Hal KEMP, Appellee.

No. 94-3858.

District Court of Appeal of Florida First District.

Aug. 15, 1995.

Jana M. Black of McConnaughhay, Roland, Maida & Cherr, P.A., Tallahassee, for appellants.

Barry Silber of Myrick, Silber & Davis, P.A., Pensacola, for appellee.

DAVIS, Judge.

Mark Dunning Industries and United States Fidelity and Guaranty Association (employer and carrier respectively) appeal an order awarding permanent total disability (PTD) benefits to Hal Kemp, the claimant. The Judge of Compensation Claims (JCC) held that the claimant was entitled to PTD benefits on two alternative grounds. He determined that the job the claimant now holds is both sedentary and part-time, and thus is below the standard set forth in section 440.15(1)(b), Florida Statutes (1986), requiring the claimant to "establish that he is not able uninterruptedly to do even light work due to physical limitation" in order to be eligible for PTD benefits. Alternatively, the JCC held, the job claimant holds is sheltered and therefore not a bar to PTD benefits. Although the JCC erred in his interpretation of section 440.15(1)(b), Florida Statutes (1986), competent substantial evidence supports his holding that the claimant's current position is sheltered employment. We therefore affirm.

Hal Kemp was injured while employed by Mark Dunning Industries in December 1986. There is no dispute that the injuries he sustained while moving a large waste container are compensable. Following the injury, he came under the care of doctors who placed him on light duty. The employer retained Mr. Kemp in a light duty position until April 1, 1987. As of that date, the business was sold, and the new employer fired Mr. Kemp immediately. The claimant then engaged in an unsuccessful job search. In October 1988, the claimant began working as a volunteer dispatcher in the Sheriff's Department (where his brother was employed). In March 1989, the claimant was hired to work for the Sheriff's Department as a dispatcher full time. Although the claimant has continued to hold that position and to receive his full paycheck since that date, there is competent substantial evidence in the record that he has had continual difficulty performing his job as a result of his compensable injury. His fellow employees covered for the claimant because he needed to leave work and go home sick frequently, perhaps even on a daily basis. His lack of concentration, attributable to the injury, forced his new employer to change his job duties because he was endangering both sheriff's deputies and the public.

The JCC held that the claimant had met his burden of establishing that he is incapable of performing even light work on an uninterrupted basis because the claimant is capable of only part-time sedentary work. Relying on the definitions of "sedentary" and "light" work in the United States Department of Labor's Dictionary of Occupational Titles, the JCC opined that "[t]here is no doubt that sedentary level work is more restrictive than anybody's definition of 'light' work." The JCC also held that if the claimant had chosen to limit himself to part-time work he would not be entitled to PTD benefits, but that PTD benefits should be awarded when an injury compels someone to accept only part-time employment. These conclusions are incorrect. An inability to engage in any meaningful employment would support the conclusion that one is permanently totally disabled. However, an ability to work part-time contradicts the conclusion that one is totally disabled. Compare Seligman & Latz, Inc. v. Panell, 530 So.2d 1032, 1033 (Fla. 1st DCA 1988) (claimant held part-time job but there was testimony that she could only work "as tolerated," which the court concluded was sufficient evidence of inability to work uninterruptedly to sustain an award of PTD benefits) with Vista Properties of Vero v. Heumann, 516 So.2d 1032, 1033 (Fla. 1st DCA 1987) (reversing award of PTD benefits for period during which claimant held part-time, non-sheltered, non-gratuitous employment, based upon conclusion that claimant had failed to demonstrate inability to work uninterruptedly). Moreover, the ability to engage in sedentary...