Winn Dixie Stores, Inc. v. La Torre

• Decision Date: 26 August 1997
• Docket Number: No. 96-1850,96-1850
• Citation: 702 So.2d 1267
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D2050 WINN DIXIE STORES, INC. and Crawford & Company, Appellants, v. Ricardo LA TORRE, Appellee.

Page 1267

702 So.2d 1267

22 Fla. L. Weekly D2050

WINN DIXIE STORES, INC. and Crawford & Company, Appellants, v. Ricardo LA TORRE, Appellee.

No. 96-1850.

District Court of Appeal of Florida,

First District.

Aug. 26, 1997.

Rehearing Denied Oct. 6, 1997.

Mary E. Cruickshank of McConnaughhay, Roland, Maida & Cherr, Tallahassee, for Appellants.

Bradley H. Trushin of Wolpe & Leibowitz, Miami, for Appellee.

BENTON, Judge.

Winn Dixie Stores, Inc. (Winn Dixie) and Crawford & Company appeal a compensation order insofar as it awards Ricardo La Torre temporary partial disability benefits (making no allowance for any offsets), and (prospectively) authorizes Dr. Lazaro Guerra to provide orthopedic care, including ordering additional magnetic resonance imaging (MRI). We affirm both the award of medical benefits and the award of temporary partial disability benefits, but remand for further proceedings on offsets appellants claim.

Mr. La Torre started working at a Winn Dixie store as a meat cutter on December 31, 1966. "[A]bout a year or so" later he became meat market manager, a position he had held for some twenty-five years when, on May 20, 1991, he was summoned to the front of the store to help the assistant manager apprehend a shoplifter. While wrestling the shoplifter in the parking lot, Mr. La Torre stepped in a pothole and fell, pulling down the shoplifter on top of him. The shoplifter landed on Mr. Torre's right knee, injuring the knee. After a period of convalescence, Mr. La Torre resumed full-time work as meat market manager and continued in that capacity for ten months. He stopped work on June 10, 1992, because he could no longer see well enough to work.

The judge of compensation claims credited Dr. Guerra's testimony that further magnetic resonance imaging was indicated, rejecting Dr. Barry's opinion to the contrary, but many of the findings of fact in the compensation order are not in dispute:

6. The claimant suffers from the residual effects of a torn interior [sic] cruciate ligament, tear of the medial collateral, tear of the medial meniscus, small stable tear of the lateral meniscus, unstable chondromalacia of the medial femoral condial and unstable chondromalacia of the lateral femoral condial.

7. Prior to his industrial accident of May 20, 1991, the claimant had a medical history of retinitis pigmentosa that had been diagnosed at Bascom Palmer Eye Institute in 1983.

8. As a result of the injuries sustained in the instant industrial accident, the claimant received medical care....

9. The medical services provided by Dr. Lazaro Guerra were never authorized by the employer/carrier herein. Said services were also not performed on an emergency basis. Accordingly, the employer/carrier is not responsible to pay the past medical bills of Dr. Lazaro Guerra.

10. The claimant underwent a surgical procedure involving the knee, including arthroscopy of the medial femoral chondrectomy and a partial meniscectomy and arthroscopy of the lateral chondrectomy on July 2, 1991.

11. Dr. Patrick Barry opined that the claimant had reached the Plateau of Maximum Medical Improvement and was discharged from further follow up care on January 7, 1992 with a 10% permanent partial impairment to the body as a whole in accordance with the Minnesota Guides. At that time, restrictions pertaining to kneeling and squatting applied to the claimant's activities.

12. The claimant returned to work after the industrial accident for his employer, Winn Dixie Stores, Inc., and worked as a meat market manager until he stopped working for Winn Dixie Stores, Inc., on June 10, 1992. At that time, the claimant terminated his employment with Winn Dixie Stores, Inc. because of his retinitis pigmentosa, which had deteriorated to the extent that he was no longer able to drive. Although the claimant continued to work for the employer herein through June 10, 1992, the claimant did so in pain, with limitations and wearing a brace.

13. ... I specifically find that retinitis pigmentosa is usually a hereditary disease of the retina that deteriorates the retina to the point of blindness, and that Mr. La Torre has a severe form of said disease. The claimant, on February 27, 1992, had 20/400 vision in each eye with contact lenses, which means he could only see the big letter E from 20 feet away while a normal person could see said letter at 400 feet away. The claimant also did not have any near vision....

14. At the time the claimant terminated his employment with Winn Dixie Stores, Inc., the claimant was finger counting in each eye, i.e. the claimant could no longer see the big letter E, but could only see ones fingers if they were placed in front of his face.

15. It was Dr. Zarco's opinion that on June 11, 1992, Mr. La Torre was legally blind and, in all practicality, unable to work except for certain job positions which might be available at the Light House for the Blind which did not require much mobility.

....

18. That the claimant, after terminating his employment with Winn Dixie Stores, Inc., experienced a worsening of his right knee condition, and that there are now activities that he no longer can perform due to his knee that he was able to perform at the time of his termination of employment with Winn Dixie Stores, Inc.

19. Due to the worsening of his knee condition the claimant went to see Dr. Lazaro Guerra.

20. The claimant also saw Dr. Patrick Barry ... [who] indicated that the claimant's right knee is frankly unstable and recommended a biodex test and mentioned the use of the ACL brace. Dr. Barry indicated that the claimant, if not content with his knee should have an ACL reconstruction. However, he but opined that an MRI would not be beneficial since Dr. Barry is aware of the claimant's knee condition.

21. ... I accept Dr. Lazaro Guerra's opinion that Mr. La Torre was unable to work and was in fact temporarily and totally disabled from July 1, 1993 through September 15, 1993, as a direct result of the injuries sustained in his compensable industrial accident of May 20, 1991. When Dr. Guerra saw the claimant on July 1, 1993, the patient was having significant pain and instability in the knee....

22. It was Dr. Guerra's opinion that on September 16, 1993, the claimant had progressed sufficiently to be returned to work on a light duty basis with limitations as to the amount of standing, walking, climbing and kneeling that the claimant could perform. It was Dr. Guerra's recommendation that the claimant should not do any kneeling, should not stand for more than four hours, and should not be doing any climbing and squatting or prolonged walking, and should not walk on uneven ground. Furthermore, restrictions were ongoing in nature.

Workers' compensation benefits "should include all medical care necessary for the treatment of compensable injury." See Koulias v. Tarpon Marine Ways, 538 So.2d 130, 132 (Fla. 1st DCA 1989). We find no reason to disturb paragraph twenty-six of the order under review, which authorizes Dr. Guerra to render future medical care. See Champlain Towers v. Dudley, 481 So.2d 532 (Fla. 1st DCA 1986).

Appellants do not question the award of temporary total disability benefits from July 1, 1993, through September 15, 1993. But they maintain that no competent substantial evidence supports the findings of fact on which the award of temporary partial disability benefits thereafter (from September 16, 1993, and continuing) was predicated.

They also complain that the judge of compensation claims applied an erroneous legal standard to effect a "reverse merger," see Cosmos Contracting Co. v. Courtney, 617 So.2d 439 (Fla. 1st DCA 1993); Pan American World Airways, Inc. v. Franchina, 396 So.2d 245 (Fla. 1st DCA 1981), and question in this connection the order's extended discussion of the "interrelationship" between Mr. La Torre's blindness and his knee injury. But they do not invoke section 440.09(1)(b), Florida Statutes (1995).

At issue is the extent to which Mr. La Torre's industrial accident diminished his ability to earn money working. In construing provisions of a federal workers' compensation statute covering harbor workers in a case that involved permanent partial disability benefits, Justice Souter recently explained:

Disability is a measure of earning capacity lost as a result of work-related injury. By distinguishing between the diminished capacity and the injury itself, and by defining capacity in relation both to the injured worker's old job and to other employment, the statute makes it clear that disability is the product of [the work-related] injury and opportunities in the job market.

Metropolitan Stevedore Co. v. Rambo, 11 Fla. L. Weekly Fed. S14, S16 (U.S. June 19, 1997)(emphasis supplied). More restrictively, section 440.15(4)(b), Florida Statutes (1991), provides that an employee cannot recover temporary partial disability benefits without showing that "his inability to ... earn as much as he earned at the time of his industrial accident is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment."

In Florida at the time of Mr. LaTorre's accident, the rule was that "[i]n case of temporary partial disability, benefits shall be based on actual wage loss." § 440.15(4)(a), Fla. Stat. (1991). A claimant had the burden to prove that a compensable injury was "an element in the causal chain resulting in or contributing to wage loss." City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984). In pertinent part, section 440.15(4)(b), Florida Statutes (1991), provides:

Whenever a temporary partial wage-loss benefit as set forth in paragraph (a) may be...