Wilbanks v. Cianbro Corp.

• Decision Date: 10 September 1987
• Docket Number: No. BN-427,BN-427
• Citation: 512 So.2d 300,12 Fla. L. Weekly 2192
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 2192 Hobart WILBANKS, Appellant, v. CIANBRO CORPORATION and U.S.F. & G., Appellees.

Page 300

512 So.2d 300

12 Fla. L. Weekly 2192

Hobart WILBANKS, Appellant, v. CIANBRO CORPORATION and U.S.F. & G., Appellees.

No. BN-427.

District Court of Appeal of Florida,

First District.

Sept. 10, 1987.

Earle Lee Butler of Butler & Pettit, Ft. Lauderdale, for appellant.

Anthony J. Beisler, Ft. Lauderdale, for appellees.

WENTWORTH, Judge.

Appellant, the claimant, seeks review of a workers' compensation order by which his claim for temporary total or temporary partial disability or wage loss benefits, and a change of physicians was denied. He contends the deputy commissioner erred in finding no permanent physical impairment, failing to rule on his entitlement to wage loss on a month-to-month basis, basing a finding of fact solely on the argument of the employer/carrier, and failing to set aside the order to hear additional medical testimony. Because the order recites and accepts evidence that appellant's treating physician placed substantial permanent functional restrictions on him as a result of injuries sustained in the industrial accident, we find that the deputy commissioner's conclusion against permanent physical impairment results in an internally inconsistent order. We therefore strike the finding against permanent physical impairment, but affirm the denial of benefits on other grounds.

Appellant suffered a compensable injury July 27, 1984 when he fell, injuring his right leg and hip. His treating physician, Dr. James M. Wallquist, prior to tests performed in August 1985 found him to have a 5% permanent physical impairment to the body as a whole, and placed restrictions on repetitive bending, lifting over 25 pounds, pushing or pulling heavy loads, and prolonged sitting or standing. Appellant continued to have complaints of pain, numbness and weakness in his right leg. He was found to have a low back strain and was admitted to a hospital for treatment of that condition. At Dr. Wallquist's request, appellant underwent further testing in August 1985, but no need for surgery was found. Following the testing, Dr. Wallquist diagnosed appellant as suffering from right lumbar radiculopathy. He then returned appellant to work as a trim carpenter, with restrictions. Dr. Wallquist at this time revisited his previous opinion, finding no "objective" evidence that appellant suffered from any permanent physical impairment. Dr. Wallquist, however, reaffirmed the restrictions he had placed on appellant earlier. Appellant returned to work with his former employer on October 21, 1985. He worked approximately two hours at a job the employer offered and then quit, complaining of pain. The former employer offered to work with appellant to find a job he could perform within his restrictions, but appellant never returned. Appellant moved to Live Oak from Ft. Lauderdale in October 1985. He moved back to Ft. Lauderdale one month later and tried to find work there. He was employed for two weeks in December 1985. He then returned to Live Oak, where he remained until February 20, 1986, conducting no job search. Between February and May, 1986 appellant sought work from five employers.

Appellant filed a claim for temporary partial disability or wage loss benefits from the date of his return to work on October 21, 1985, to the date of the hearing, medical expenses of Dr. Wallquist, opinion and treatment, if necessary, of a neurosurgeon, and penalties and interest. Appellant added a claim for...