Walker v. New Fern Restorium, ZZ-53

• Decision Date: 18 February 1982
• Docket Number: No. ZZ-53,ZZ-53
• Citation: 409 So.2d 1201
• Parties: Carolyn A. WALKER, Appellant/Cross-Appellee, v. NEW FERN RESTORIUM and R. P. Hewitt & Associates of Florida, Inc., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1201

409 So.2d 1201

Carolyn A. WALKER, Appellant/Cross-Appellee, v. NEW FERN RESTORIUM and R. P. Hewitt & Associates of Florida, Inc., Appellees/Cross-Appellants.

No. ZZ-53.

District Court of Appeal of Florida, First District.

Feb. 18, 1982.

Ivan Matusek, St. Petersburg, for appellant/cross-appellee.

Robert P. Byelick, St. Petersburg, for appellees/cross-appellants.

JOANOS, Judge.

This workers' compensation appeal concerns the procedural and evidentiary requirements of a claim for rehabilitation benefits under the 1979 amendments to § 440.49(1), Florida Statutes. ¹ After a hearing on the claim, the deputy denied rehabilitation benefits on the ground that the program in which the claimant was currently enrolled was not that envisioned by § 440.49(1). We reverse.

It is apparent from the record that many of the difficulties which the claimant encountered in her quest for rehabilitation were due in large part to the lack of familiarity by the parties with the Division of Workers' Compensation ("Division") statute. Hopefully, this opinion will serve to set forth the procedures and responsibilities under the new act which, if followed, will help prevent recurrence of the delay and confusion that took place in this case.

Claimant sustained a low back sprain on August 16, 1979 while working for the employer as a nurse's aide. Claimant's physician opined that, as a result of the injury, claimant should be restricted from lifting over 20 pounds and from prolonged bending or stooping, even after reaching MMI. The evidence is uncontradicted that with these restrictions, work as a nurse's aide would not be appropriate. Although claimant received an associate of arts degree in 1957 and has done occasional work as a housekeeper, factory worker, and kindergarten instructor, after claimant was advised that she should no longer work as a nurse's aide, claimant sought rehabilitation to enable her to work at a less strenuous occupation.

The employer paid the proper temporary disability benefits but did not voluntarily provide rehabilitation services for claimant. The Division, however, was not immediately notified by any of the parties that claimant desired rehabilitation. Instead, claimant first asked for help from the Division of Vocational Rehabilitation of the Florida Department of Health and Rehabilitation Services ("DVR"). DVR received reports from physicians and a psychiatrist and concluded that claimant suffered a disability interfering with her employment. After concluding that claimant was entitled to rehabilitation, a counselor from DVR began working with claimant to determine a viable rehabilitation program.

It appears from the evidence that the Division was first notified of claimant's interest in rehabilitation by either claimant's attorney or the DVR counselor. In any event, a Division rehabilitation nurse contacted claimant on January 14, 1980. Claimant was hesitant to talk with the nurse but finally discussed her educational and work background. Because workers' compensation disability claims were being controverted at the time, the nurse testified that the Division was not supposed to "get involved." The Division did no further work on the case until March 14, 1980, when claimant called the nurse to inform her that the disability portion of the case had been settled and to ask the nurse "what we (the Division) were going to do with her." The nurse then called the claimant's DVR counselor to discuss the case. Shortly thereafter, claimant's attorney contacted the Division to formally refer claimant for rehabilitation services. The nurse made two or three more phone contacts with the claimant but did not devise any rehabilitation plan. Although claimant was not very cooperative on several occasions, the nurse testified that she "closed the case" because she was told that a private rehabilitation agency hired by the employer was supposed to come in. The nurse admitted that under the new law the Division was required to monitor rehabilitation, yet the Division took no further action (either monitoring or preparing reports) once it learned of the possible involvement of a private agency.

As the case developed, no private agency ever became involved. In the meantime, however, the claimant and her DVR counselor continued to work on formulating a rehabilitation program. Because claimant's experience and interest were in the medical field, the DVR counselor testified that she and claimant decided a four-month training program as a ward clerk would be appropriate. (A ward clerk performs light secretarial/clerical duties in a medical setting.) Claimant attended the training program at night while, on her own initiative, she was enrolled in a basic course of studies at a junior college during the day. As part of her counseling, the DVR counselor also recommended that claimant try the Florida State Employment Service. Claimant did, and got a job as a telephone solicitor. After one day, she found the experience very upsetting. The rehabilitation counselor agreed that the job was not suitable for claimant considering her interest and background.

At the hearing on the claim for rehabilitation benefits, the deputy heard testimony from, among others, the claimant, her treating physician, the DVR counselor and a Division rehabilitation nurse. Although the rehabilitation nurse testified that she "would not disagree with" the DVR's choice of rehabilitation programs, the deputy found that the ward clerk program was "not that envisioned in section 440.49 ...." In order to have reached this conclusion, the deputy could have determined that the requirements of § 440.49(1) were not met in that, (1) the injury did not preclude claimant from earning pre-accident wages, (2) the ward clerk program was not "necessary and appropriate to restore the employee to suitable gainful employment," or (3) the program should be rejected due to procedural deficiencies. We find that the deputy's conclusion cannot be sustained on any of the three grounds.

The first two grounds involve evidentiary matters, and, utilizing the findings of fact made by the deputy, the evidence would not support rejection of the program on either of these grounds. The deputy accepted medical testimony regarding...