Vargas v. AMI Kendall Regional Hosp.

• Decision Date: 28 December 1993
• Docket Number: No. 92-366,92-366
• Citation: 629 So.2d 993
• Parties: 19 Fla. L. Weekly D77 Elsa VARGAS, Appellant, v. AMI KENDALL REGIONAL HOSPITAL and Alexsis, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 993

629 So.2d 993

19 Fla. L. Weekly D77

Elsa VARGAS, Appellant, v. AMI KENDALL REGIONAL HOSPITAL and Alexsis, Inc., Appellees.

No. 92-366.

District Court of Appeal of Florida First District.

Dec. 28, 1993.

Henry Fierro, Miami; Jay M. Levy, P.A., Miami, for appellant.

Mark L. Zientz of Williams & Zientz, Miami, for appellees.

ON MOTION FOR REHEARING

ERVIN, Judge.

The opinion this court filed November 1, 1993, is withdrawn and the following opinion is substituted. Appellees' motion for rehearing, considered in light of this substituted opinion, is denied.

Claimant, Elsa Vargas, appeals a workers' compensation order which awarded her temporary partial disability benefits and continuing psychiatric treatment, yet denied her claim for permanent total disability (PTD) benefits. She contends that the JCC erred in concluding that she is not permanently and totally disabled and that she is currently employable. We agree and reverse.

Vargas, who is 61 years of age, injured her back in industrial accidents occurring on August 25, 1987 and August 30, 1987. Claimant currently has a mild scoliotic curve of the lumbosacral spine resulting from both her age and the trauma sustained in the two industrial accidents. She reached orthopedic maximum medical improvement (MMI) on August 22, 1989, with a five percent permanent impairment (PI) to the body as a whole, and psychiatric MMI on May 28, 1989, with a ten percent PI. ¹

To show entitlement to PTD benefits, a claimant must establish inability to do light work uninterruptedly due to physical limitations, or show proof of a lengthy and exhaustive job search which has proved futile. U.S. Foundry & Mfg. Co. v. Serpa, 564 So.2d 559, 561 (Fla. 1st DCA 1990); Holiday Inn v. Sallee, 496 So.2d 227, 229 (Fla. 1st DCA 1986). Neither of claimant's physicians recommended that she refrain from working. Therefore, the question would ordinarily be whether claimant performed an exhaustive but unsuccessful job search. The JCC must determine whether the claimant's efforts were adequate in light of the existing circumstances, i.e., claimant's actual physical impairment, age, education and training, work experience and record, motivation, and diligence. Grace v. Collier County Sch. Bd., 552 So.2d 961, 963 (Fla. 1st DCA 1989); Paramount Poultry v. Mims, 472 So.2d 1281, 1282 (Fla. 1st DCA 1985). In the instant case, the JCC merely concluded that claimant is "presently employable" and did not address the adequacy of her job search. This was error.

In his ruling, the JCC relied on the testimony of the employer/carrier's rehabilitation provider, Vicki Valdes, who testified that claimant is "presently employable." The record, however, does not support this statement. While Valdes testified that she had attempted unsuccessfully to find work for claimant between February 10 and April 20, 1989, she made no contact with claimant since. Moreover, Valdes was not aware of claimant's orthopedic impairment, nor of her psychiatric impairment, which was not assessed until after Valdes had been taken off the case. Likewise, the JCC's statement that Valdes testified she had provided claimant with numerous job interviews, "none of which the claimant kept," is also unsupported by the record. Instead, Valdes testified that claimant did not attend interviews the week of March 2nd, but did interview with Jordan Marsh on March 9, 1989, attended other interviews, and was offered a position with a dry cleaning establishment, which Vargas was unable to accept because of transportation difficulties. Because the statements relied on by the JCC are not supported by the record, t...