Summary
In Florida Division of Corrections v. Morgan, 382 So.2d 1288 (Fla. 1st DCA 1980), we held such testimony combined with a visit to five potential employers was insufficient to establish a loss of wage earning capacity.
Summary of this case from Alterman v. ArmbandOpinion
No. QQ-467.
April 17, 1980. Rehearing Denied May 21, 1980.
Petition for review from the Judge of Industrial Claims.
Bernard J. Zimmerman and Robert C. Barrett, of Akerman, Senterfitt Eidson, Orlando, for appellant.
Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
The employer appeals the Order of the Judge of Industrial Claims awarding claimant permanent total disability benefits together with attorney's fees and costs. We agree with the employer that there is no competent substantial evidence to support the award and, therefore, reverse.
There is no dispute that claimant suffered a compensable low-back injury on July 30, 1974. Two laminectomies were performed, one in late August 1974 and the other in November 1975. Dr. Hoff, the neurosurgeon who performed the laminectomies, testified claimant had reached maximum medical improvement (MMI) by December 1, 1977, and that he sustained a 50% permanent partial anatomical impairment of the body as a whole. Dr. Matthews, an orthopedist who assisted Dr. Hoff in treating claimant, agreed with Dr. Hoff's 50% rating but assigned December 15, 1977, as the date of MMI. Dr. Uricchio, an orthopedic surgeon, saw claimant in March, April, May, and July of 1978. Dr. Uricchio testified that claimant reached MMI prior to March 1978 and that claimant had a 25% permanent partial anatomical impairment of the body as a whole. The employer voluntarily paid temporary total benefits until December 15, 1977, 50% permanent partial benefits thereafter, plus medical benefits.
Claimant, aged 44, is a white male with a fifth grade education who has worked primarily as a farm hand, a mechanic, and a truck driver. He has also received training in air conditioning and heating repair. Claimant testified that his reading and writing abilities are limited. He experiences pain in his back and both legs and numbness in his left leg. He can walk for fifteen minutes, sit up to thirty minutes, and can drive for about ten minutes without stopping. Dr. Hoff, Dr. Matthews and Dr. Uricchio agreed that claimant could perform light, sedentary work. They recommended that claimant avoid work that involves heavy lifting, excessive jolting, excessive twisting, prolonged sitting and prolonged standing.
There were two hearings before the Judge of Industrial Claims, one on December 1, 1978, and the other on January 18, 1979. In addition to the medical testimony (in the form of depositions) the claimant testified, an employment expert for claimant (Mr. Deutsch) testified, and an employment expert for employer (Mr. Keiser) testified. Additionally, the deposition of a second employment expert for employer (Mr. Pryor) was admitted into evidence.
Claimant testified he had made no job search. Mr. Deutsch testified that claimant is unemployable based on his testing of claimant, his review of claimant's medical history, and his familiarity with the job market in Lake County. Mr. Deutsch had not performed a job canvass. Mr. Pryor testified by deposition that he started working with claimant in March 1978 and that claimant was hostile and uncooperative. Mr. Keiser testified that he performed a job canvass and found ten prospective employers for claimant. When Mr. Keiser attempted to tell claimant about these possible jobs, claimant refused to talk to him on advice of counsel. At the second and final hearing held January 18, 1979, the Judge of Industrial Claims gave employer sixty days within which to find claimant a job. Claimant agreed to cooperate in the job search.
By letter dated January 26, 1979, Mr. Keiser reported that claimant had accompanied him on five job interviews. None of these interviews resulted in claimant landing a job. Four of the places interviewed did not have a job presently available. Two of these locations agreed to keep claimant's application for future reference. The fifth place interviewed was a welding shop. The owner of the welding shop described a light duty job and expressed an interest in hiring claimant. The proposed job was contingent upon the welding shop receiving certain contracts that had not materialized. Mr. Keiser reported that Mr. Morgan argued he could do nothing of any economic benefit for himself or his family. Mr. Keiser described claimant as "a deeply embittered and hostile gentleman."
There is no competent substantial evidence to support the finding of permanent total disability based on loss of wage-earning capacity. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla. 1975). The Judge of Industrial Claims did not find that claimant's injuries excused claimant's failure to make an independent job search. Mr. Deutsch's testimony is not competent, substantial evidence of claimant's unemployability. Cook v. Hamilton County Board of County Commissioners, IRC Order 2-2984 (June 16, 1976).
It is true that claimant, after the second hearing, accompanied Mr. Keiser on all the job interviews Mr. Keiser had set up. It is also true that none of the places interviewed had a job available. We construe this insufficient proof of claimant's loss of wage-earning capacity. It must be remembered that the burden was on claimant to prove his inability to find employment. The burden was not on the employer to prove claimant's employability.
Because the award of permanent total benefits is reversed, the award of attorney's fees and costs is also reversed.
The order appealed is reversed and remanded for proceedings consistent herewith.
MILLS, C.J., concurs.
ERVIN, J., dissents with opinion.
I would affirm the award of permanent, total disability benefits. In my view, the facts in this case are nearly indistinguishable from those in Glenn Brooks v. Haines City Citrus Growers Association, 382 So.2d 725 (Fla. 1st DCA 1980). There we reversed the judge's refusal to grant permanent, total benefits. Here we reverse the judge's award of such benefits. In both cases claimants' education was limited; their work experience confined to heavy, unskilled labor, and, following their accidents, their job opportunities were restricted to light, sedentary employment. Yet, in both instances, I think it obvious that the claimants' limited intellectual capabilities precluded office work.
In the present case, I believe that claimant's job search in a rural county, offering only a few employment opportunities to someone in claimant's condition, was sufficient to meet the burden placed upon him; and, consequently, he demonstrated it was unlikely he could resume gainful employment. Having done so, the burden shifted to the employer/carrier to present evidence showing some work was available which was within claimant's capabilities. See Ross v. Roy, 234 So.2d 99 (Fla. 1970); Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960); Stanley v. Master Masonry Construction, Inc., 287 So.2d 67 (Fla. 1973); Hogan v. Central Sand Company, 141 So.2d 576 (Fla. 1962). The above cases generally state that once a claimant proves he can perform only services limited in quantity, dependability or quality, the burden shifts to the employer to show that a job within his limitations does actually exist. No reasonable job market was shown accessible for the claimant, and, since the employer/carrier failed to meet its burden showing the contrary, claimant was entitled to permanent, total disability benefits as a matter of law.