Woods v. St. Anthony's Hosp.

• Decision Date: 30 August 1991
• Docket Number: No. 90-2338,90-2338
• Parties: Minnie WOODS, Appellant, v. ST. ANTHONY'S HOSPITAL and Johns Eastern Company, Appellees. 586 So.2d 415, 16 Fla. L. Week. D2315
• Court: Florida District Court of Appeals

Page 415

586 So.2d 415

Minnie WOODS, Appellant, v. ST. ANTHONY'S HOSPITAL and Johns Eastern Company, Appellees.

No. 90-2338.

586 So.2d 415, 16 Fla. L. Week. D2315

District Court of Appeal of Florida First District.

Aug. 30, 1991.

Janet Jaspers, St. Petersburg, for appellant.

Mark E. Hungate and Gregory A. Brooks of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees.

ZEHMER, Judge.

The claimant appeals and the employer and servicing agent cross-appeal final and amended final workers' compensation orders that determine the claimant's entitlement to wage loss benefits and temporary total disability (TTD) benefits. We affirm in part and reverse in part.

I.

Minnie Woods, the claimant, is a licensed practical nurse who was injured in the course of her employment at St. Anthony's Hospital. During the three years prior to the accident, she worked 7:00 a.m. to 7:00 p.m., two days a week. Although she only worked 24 hours per week, she was paid for 36 hours per week, and at the time of the accident, she was earning $335.88 per week.

The claimant injured her back on November 27, 1988, while assisting a patient from a bed to a chair. Shortly thereafter, she sought medical assistance from Dr. Lyster, an orthopedist. Dr. Lyster diagnosed her injury as an acute lumbosacral strain with acute right trochanteric bursitis. He treated the injury with drugs and physical therapy, and advised the claimant not to return to work until he examined her again. When the claimant did not improve under his conservative treatment, Dr. Lyster referred her to Dr. Thompson, a neurosurgeon. Dr. Thompson diagnosed her injury as a herniated disc and on January 17, 1989, performed a laminectomy. In May 1989, Dr. Thompson stated that the claimant had a 15% permanent impairment and that, as of June 1, 1989, she could return to light duty work with a 25-pound lifting restriction.

Upon the claimant's release to light-duty work, the employer offered her a job as a care unit registrar; this was a 5-day/40-hour per week clerical position that paid $282.80 per week. The claimant took this job, with Dr. Thompson's approval, on June 26, 1989. On July 17, 1989, the claimant contacted Andrea Hanson, the employer's workers' compensation liaison, and advised her that the prolonged sitting required of the registrar job caused her to suffer low back pain. Ms. Hanson instructed the claimant to use a lumbar roll while sitting at work. The claimant continued with this job for another month, at which time she wrote to Ms. Hanson and stated that she was "going crazy doing insurance all the time and in a close [sic] room without window. And the sitting & standing is driving me crazy." Ms. Hanson noted at the bottom of the claimant's letter that she had spoken with the claimant, that the claimant did not like the clerical aspect of her job and wanted to go back to patient care, and that the claimant was aware of the restrictions placed on her by Dr. Thompson. The employer did not offer the claimant any alternative job. On October 10, 1989, the claimant resigned from her job as care unit registrar.

The claimant testified that after resigning from her job with the employer, she began looking for work as a medication nurse because she felt that type of LPN job would be within her restrictions. She stated that some of those jobs required that the nurses push carts, and she realized she could not do that. One potential employer told her she was qualified but wouldn't hire her because she was "high-risk." She also looked for cashier positions, but was told that she did not have the experience. All of the claimant's prior work experience was in the medical field.

The claimant continued to have low back problems and in October 1989 started a physical therapy program at the employer hospital. On December 16, 1989, the claimant began receiving authorized treatment from Dr. West, an orthopedic surgeon. Dr. West recommended a course of extensive physical therapy and indicated that the claimant would be temporarily totally disabled while participating in the program. The claimant began the program on January 22, 1990, and completed it on March 19, 1990. At that time, Dr. West released the claimant to return to work with restrictions that she not lift over 20 pounds and not participate in activities that require twisting and bending. He testified that he felt she had achieved maximum medical improvement as of that time and that he agreed with the permanency rating set by Dr. Thompson. Dr. West testified that he did not feel the claimant was physically capable of returning to a LPN position because of the physical activity involved.

The claimant's claim for temporary total disability benefits, wage loss benefits, and rehabilitation was controverted and on June 21, 1990, a merits hearing was held. The judge of compensation claims (judge) subsequently entered an order and an amended order, finding that the job as a care unit registrar was within the claimant's physical restrictions, and that there was no medical evidence to support the claimant's failure to work until January 22, 1990, when she entered Dr. West's physical therapy program. He found no evidence of a need for rehabilitation. He ordered the employer and servicing agent to pay the claimant wage loss benefits on the basis of actual and/or deemed earnings in the amount of $282.20 per week for the period of June 1, 1989, to October 10, 1989 and to pay TTD benefits for the period from January 22, 1990, to March 19, 1990. He denied the claimant's claim for wage loss benefits for the period of time between March 20, 1990, through May 31, 1990. Both parties appeal these orders.

II.

On this appeal, the claimant first asserts that the judge erred in failing to either award or deny her claim for TTD benefits for the period of December 4 through 24, 1988. She argues that although she was not released to return to work from the time she went to the emergency room on December 4, 1988, until after she had surgery in January 1989, the employer refused to pay her workers' compensation benefits for this period and instead required her to use her accrued "free time," or "vacation." The claimant argues that she was entitled to full workers' compensation benefits during this period. The employer and servicing agent urge us to affirm this issue even though the judge failed to make a determination on the claim. They acknowledge that the claimant used her "free time" from December 4 through 24, 1988, but state that she was not entitled to benefits during this period because she did not present evidence that she could have used this time subsequent to January 1, 1989. They argue that because the claimant may have been compelled to use her paid vacation time by the end of the year, or lose it without pay, she was not prejudiced by their failure to pay her benefits during this period. Citing Miami Dade Water & Sewer Authority v. Leech, 447 So.2d 979 (Fla. 1st DCA 1984), as pertinent authority, they assert the principle that TTD benefits are not due for periods when the employer pays the claimant's salary.

In addressing this issue, we first observe that although the claim for benefits does not contain a request for TTD benefits during this period, the record shows that the claimant clearly raised this issue both at pretrial and at the merits hearing, and that the judge acknowledged the claim at the merits hearing. Since this claim was validly before the judge for determination, the final order was required to reflect, at a minimum, that the judge was aware of the claim and rejected it. McMeans v. F.E. Booker, 507 So.2d 135 (Fla. 1st DCA 1987). Thus, we remand with directions that the judge consider and rule upon this issue.

Although we remand for the purpose of giving the judge the opportunity to rule on this issue, having already fully reviewed the record as it pertains to this issue, we are constrained to point out that we see no basis in the record on appeal for denying TTD benefits to the claimant during this period. The claimant's testimony was uncontroverted that she was not released to return to work from the time she went to the emergency room on December 4, 1988, until the time she had surgery on January 17, 1989. Furthermore, Dr. Lyster's report shows that on December 16, 1988, when he first examined the claimant, he stated that he planned to "keep her out of work until I see her back again next week." Our review of the record revealed no evidence that would support a finding that the claimant was not temporarily totally disabled during this period.

We also find no merit in the employer and servicing agent's argument that even if the claimant was TTD during this period, they were entitled to offset her benefits by the amount of vacation benefits paid to the claimant...