Opinion
No. BE-212.
February 27, 1986.
Appeal from the Deputy Commissioner.
Bruce Epple of Haas, Boehm, Brown, Rigdon Seacrest, Orlando, for appellants.
Jesse F. Sparks and John A. Leklem of Sparks, Cooper Leklem, Orlando, for appellee.
The employer/carrier (E/C) appeal an order finding the claimant to be permanently totally disabled (PTD) and awarding claimant PTD benefits from June 18, 1982 and continuing for such period of time as the claimant remains PTD. We reverse.
The claimant was injured in a compensable industrial accident on October 27, 1980. He received temporary total disability benefits from October 27, 1980 to April 1984 and wage-loss benefits from April 1984 through November 1984. During this period a claim was made for PTD benefits. A hearing was held on this claim December 8, 1982, and an order awarding PTD benefits from June 18, 1982 was entered March 14, 1983. This order was appealed and on March 30, 1984 this court rendered its opinion reversing the award of PTD benefits. Ronald Allen Trucking Company v. Helton, 449 So.2d 874 (1st DCA 1984). ( Ronald Allen I).
On August 16, 1984, another claim for PTD and other benefits was filed and on October 18 an application for a hearing on this new claim was filed. A petition for modification was filed on October 30, 1984 but the record includes no evidence that any application or notice of hearing on the petition for modification was ever filed. Prior to the November 28, 1984 hearing on the renewed claim for PTD benefits, the claimant and claimant's attorney failed or refused to cooperate with the E/C's rehabilitation efforts and successfully objected to a hearing on a motion to compel rehabilitation on grounds that the E/C failed to give 15 days notice by certified mail.
Notwithstanding the decision of this court reversing the prior order awarding claimant PTD benefits from June 18, 1982 the deputy commissioner (deputy) again entered an order finding that the claimant reached maximum medical improvement (MMI) on June 18, 1982 and finding the claimant PTD from June 18, 1982. No additional medical evidence was adduced at the November 28, 1984 hearing, and there was no evidence of any physical change of condition of the claimant or of any mistake of fact in the prior order. The claimant's attorney concedes that there was no evidence which would constitute a basis for modification and points out that there were no findings in the deputy's order which even addressed the petition for modification. He contends that since the deputy did not address the petition for modification it should be deemed to have been denied. We agree that there were no findings in the deputy's order that address the petition for modification. The decision of this court in Ronald Allen I is the law of the case until such time as the claimant does show a change of condition or mistake of fact by means of a hearing on a properly noticed petition for modification.
In his 1984 order awarding PTD benefits the deputy recites and relies on many of the facts previously considered in the PTD determination made in his order of March 14, 1983. These facts were also considered and recited by this court in reversing the March 14, 1983 order. The 1984 order finds that the claimant had been able to work only three days during the past three and one-half years and had made an exhaustive job search as evidenced by his job search forms submitted in evidence as claimant's Exhibit One. This exhibit reflects no job search by the claimant until April 1984 and this search was performed in connection with a wage-loss application. The 1984 order also finds that the claimant obtained a job as a security guard in 1982, but after two days was unable to continue to work due to his physical condition. This same evidence was considered by the deputy in making the prior award and also by this court in its decision in Ronald Allen I. In the decision of this court it was pointed out that although the claimant quit the security guard job after two days, contending that he was physically unable to perform the duties involved, both Dr. Gilmer and Dr. Zilioli testified that these duties were well within the claimant's capacity to perform. As pointed out in Ronald Allen I the claimant's testimony concerning his pain and limitations, which is unsupported by medical evidence, does not constitute competent substantial evidence to support a finding that the claimant is PTD. Frank's Fine Meats v. Sherman, 443 So.2d 1055 (Fla. 1st DCA 1984), pet. for rev. den., 451 So.2d 850 (Fla. 1984). In October 1984 claimant also worked one day at another security job and then quit. The physical requirements of this job were the same or even less rigorous than those of the security job claimant quit in 1982. There was no change in the medical evidence that claimant was capable of performing the duties of such a job.
Although not raised on appeal, we point out for the benefit of the deputy and both parties that the order which found the claimant had reached MMI on June 18, 1982, more than two years prior to the date the order was entered, erroneously requires the E/C to provide the claimant with remedial care and treatment.
The December 19, 1984 order finding claimant PTD and ordering the payment of PTD benefits from June 18, 1982 is REVERSED without prejudice for the deputy to hear the pending petition for modification after proper notice and to determine whether there has been a change of condition or a mistake of fact that would warrant a finding of PTD.
JOANOS, J., concurs.
WENTWORTH, J., dissents in part.
I respectfully dissent and would affirm the December 1984 order as to benefits after March 1983. The majority erroneously finds that the modification claim was not properly before the deputy and tried by the parties, since the record contains the employer/carrier's written pretrial stipulation that an issue to be heard was whether there existed a "change in condition . . . to support modification," and the order recites the claim as one for "alternatively, permanent/total disability based on a Petition for Modification." For the period of time since the 1983 order reversed by this court, the record shows a change in economic condition for claimant because the evidence as to job search and economic incapacity for this subsequent period is both competent and substantial, in contrast with the conclusion of this court as to the previous period. The new evidence in addition to adequate job search forms and supporting testimony, submitted by claimant and accepted by the deputy's order, includes the opinion of the employer/carrier's placement counselor in November 1983 that he would be unable to place claimant (although he continued placement efforts until his services were terminated by the employer/carrier in April 1984). Also considered by the deputy was evidence that claimant undertook and tried to perform another guard job in October 1984, which the order finds "required walking one mile every other hour and climbing steps. . . . He . . . was again unable to work due to the physical requirements of the job." The deputy concluded:
Claimant's counsel argues by brief in this court that the present PTD award is not expressly based on the petition for modification, and that it should be affirmed regardless of whether the evidence shows a changed condition. This argument appears to be based on a misunderstanding of the necessary change as one relating to a change in claimant's physical or medical condition, as opposed to the change in economic condition contemplated by Flesch v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). In any event, counsel's concession does not alter the appellate principle requiring affirmance of the deputy's order to the extent it is supported by the record. The order does in substance find economic incapacity which, for the period since our prior ruling, is a changed condition different from the economic condition found by this court.
I find that he has cooperated with . . . 3 rehabilitation specialists. . . . Claimant was obligated to make a good faith effort to obtain employment within his physical limitations and I so find that the claimant has satisfied this obligation to test his employability by affirmatively demonstrating a good faith effort to obtain employment. That the claimant has no experience or training to qualify him for light sedentary work and that because of the successive impairments, he is not able to work uninterruptedly, even at light work. No stable market exists for the very limited services the claimant can perform due to his condition, . . . .
The order recites a review of medical testimony (also submitted in the 1983 hearing) that "claimant should be able to work within his tolerance," and found that not to be conclusive since the statute does not limit permanent/total disability to those claimants whose doctors forbid light work, citing H.S. Camp v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984), decided since the prior ruling of this court in the present case.
The order on appeal is in substance one which grants modification based on new proof of economic disability, considered in context with proofs previously found insufficient by this court with respect to the period covered by the 1983 order. As to this earlier period, the deputy clearly erred in not according effect to this court's prior decision. However, insofar as the award covers the later period, our proper appellate function does not in my opinion permit rejection of the deputy's resolution of the factual issues. We should accordingly reverse in part and either affirm the award of PTD benefits since March 1983 or remand for amendment of the order in that respect.