U.S. Foundry & Mfg. Co. v. Serpa

• Decision Date: 16 July 1990
• Docket Number: No. 89-924,89-924
• Citation: 564 So.2d 559
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D1837 U.S. FOUNDRY & MANUFACTURING COMPANY and Gallagher Bassett Insurance Service, Appellants, v. Jose SERPA, Appellee.

Page 559

564 So.2d 559

15 Fla. L. Weekly D1837

U.S. FOUNDRY & MANUFACTURING COMPANY and Gallagher Bassett Insurance Service, Appellants, v. Jose SERPA, Appellee.

No. 89-924.

District Court of Appeal of Florida,

First District.

July 16, 1990.

Steven Kronenberg, of Adams, Kelley, Kronenberg & Kelley, Miami, for appellants.

Renee R. Pelzman, of Pelzman & Ruska, Coral Gables, for appellee.

SHIVERS, Chief Judge.

The employer/carrier (E/C) appeal an order awarding permanent total disability (PTD) benefits. We reverse. Claimant is a 53-year-old, Spanish speaking Cuban immigrant who came to Florida in 1982. In Cuba he worked as a welder and U.S. Foundry hired him in that capacity in 1983. In April 1985 he suffered an industrial accident damaging cartilage in his right knee.

In May 1985 Dr. Nadler performed arthroscopic surgery, at which time he found evidence of arthritis and a small tear of the anterior portion of the medial meniscus. After two weeks away from work, claimant returned to welding work with U.S. Foundry. A few months later claimant was transferred to lighter work in the tool room and then was discharged in August 1985 because the tool room job was no longer needed.

The carrier paid temporary total disability and wage loss benefits and provided rehabilitation counseling services. In August 1987 U.S. Foundry informed claimant's rehabilitation counselor that two possible positions were soon to open for claimant but in December 1987, before claimant could be placed, he underwent further surgery on his injured knee. Following this surgery, Dr. Nadler believed claimant was at MMI and that he could return to light duty work that restricted standing or walking to one to two hours, lifting to ten to twenty pounds, limited pushing and pulling and no repeated bending or climbing. Based on the AMA guidelines, he gave claimant a four percent permanent impairment rating to the body as a whole. He also felt that claimant was not PTD and that it would be in claimant's best interest to do some type of work.

In October 1988 the employer offered claimant a job as a security guard. Dr. Nadler believed claimant was capable of doing this job. At hearing claimant said that he did not accept the security guard job because he felt that U.S. Foundry was not acting in good faith and because they had fired him once already. He also felt that because he lacked any training as a security guard and did not know how to handle guns he was not qualified to perform the job.

The two rehabilitation counselors assisting claimant felt he was employable even though their efforts at placing claimant had been fruitless.

The judge of compensation claims (JCC) awarded claimant PTD benefits, finding that claimant's rehabilitation counselors were unable to place claimant in suitable employment within his restrictions and abilities. In finding claimant PTD, the JCC cited cases which stand for the proposition that a causal relationship can be found between the incapacity to earn and an industrial injury when there is evidence that a claimant is unable to continue the work in which he has training and experience because of the disabling effects of the injury. E.g., Koger v. Sheraton Inn, 527 So.2d 284 (Fla. 1st DCA 1988). This proposition has been applied to establish causation, but it has not been applied to establish a blanket rule that a claimant's inability to continue work in which he has training and experience because of an injury necessarily entitles him to PTD benefits. See Koger; Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986); Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984). It does not necessarily follow that a claimant's success on a causation issue entitles him to a particular disability status with its commensurate benefits.

In Koger the JCC denied PTD benefits based on a finding that there was no causal connection between the claimant's lack of employment and her industrial injury. Applying the above proposition, the court reversed the no causation finding based on the evidence that, due to her compensable injuries, the claimant could no longer work at the jobs in which she was trained and which she had held. Establishing the necessary causation, the court reversed the denial of PTD because the E/C did not adequately challenge the claimant's job search, there was no evidence that she voluntarily limited her income, and because her vocational rehabilitation counselor testified that the claimant's medically established physical restrictions effectively precluded her from finding work nearby. The causation issue was a separate matter, the affirmative resolution of which was the sine qua non of a PTD status.

To establish entitlement to PTD benefits, as was sought in this case, the claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy, exhaustive job search which has proved to be futile. E.g., H.S. Camp & Sons v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984). "Where there is no medical evidence that the claimant is unable to work, she is required to make a conscientious effort to return to work before she can establish that she is in fact unable to work." Walter...