A. Duda & Sons, Inc. v. Kelley

900 So. 2d 664, 2005 WL 771369
CourtDistrict Court of Appeal of Florida
DecidedApril 7, 2005
Docket1D04-1279
StatusPublished
Cited by7 cases

This text of 900 So. 2d 664 (A. Duda & Sons, Inc. v. Kelley) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. Duda & Sons, Inc. v. Kelley, 900 So. 2d 664, 2005 WL 771369 (Fla. Ct. App. 2005).

Opinion

900 So.2d 664 (2005)

A. DUDA & SONS, INC. and CNA Claims Plus, Appellants,
v.
Joseph A. KELLEY, Appellee.

No. 1D04-1279.

District Court of Appeal of Florida, First District.

April 7, 2005.
Rehearing Denied May 6, 2005.

*665 Pamela L. Foels; Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.

Randall T. Porcher, West Palm Beach and Cord Byrd; Gonzalez & Porcher, P.A., Lake Worth, for Appellee.

HAWKES, J.

Appellants (E/C) argue the Judge of Compensation Claims (JCC) erred by *666 awarding payment for Claimant's ulcer condition because Claimant's industrial accident was not the major contributing cause of the ulcer, and erred in her application of the "employee refuses employment" provisions of section 440.15(7), Florida Statutes (2001), when awarding temporary partial disability (TPD) benefits. We agree, and accordingly, affirm in part, reverse in part, and remand.

I. FACTUAL & PROCEDURAL HISTORY

Claimant injured his shoulder in a work-related accident in 2001, which ultimately necessitated surgery. Prior to this, Claimant was prescribed various medications for an unrelated back injury, which he continued to take after his shoulder surgery.

A. The Ulcer Condition

While being treated for his shoulder injury, Claimant was diagnosed with a perforated ulcer, which required hospitalization for ten days. Claimant sought benefits for this condition as a manifestation of his shoulder injury. An independent medical evaluation (IME) was performed as to the perforated ulcer. The IME physician testified "there was a milieu that the patient set up for himself with his alcohol and smoking, and then, once the medications he was using, caused a catastrophic perforation of the ulcer."[1] The physician specifically testified that medication Claimant had been taking for both the unrelated back injury and his compensable shoulder injury could contribute to his ulcer condition. However, the physician could not opine, within a reasonable degree of medical certainty, as to the major contributing cause of Claimant's ulcer.

B. Claimant's Work Opportunities

Eventually, Claimant was placed on light duty work status, and the employer, having no light duty work available itself, offered to place Claimant in a job at Goodwill. Claimant did not report to Goodwill until almost two weeks past the start date. He worked one day, then stopped reporting for work. Claimant testified shoulder pain was part of the reason he did not return, but the primary reason was that he had to "mess with people's dirty shoes," and was bored. Goodwill's secretary testified work would have continually been available to Claimant from his initial reporting date until the E/C notified Goodwill that Claimant would no longer report.

Shortly after Claimant's one and only day of work at Goodwill in April 2003, he was put on a no-work status for three days. During the three day "no work" period, Claimant accepted work with a neighbor at the same rate of pay he received at Goodwill. That job lasted approximately one and one-half months. For one week thereafter, while Claimant still did not report to Goodwill, he unsuccessfully sought alternative work with friends and the employer.

In June of 2003, Claimant underwent surgery for his ulcer. Although physicians' records indicate Claimant was released with restrictions from this surgery, none of the records indicate Claimant could not return to work at Goodwill. The record is silent as to whether Claimant looked for alternative work or contacted the employer for employment other than with Goodwill after his release.

In early August, Claimant sought to return to light duty work with the employer. However, none was available. In mid-September, *667 the E/C sent Claimant a letter reminding him he could return to his job at Goodwill on September 29, 2003. Claimant did not report for work until October 1, 2003, and from that date through October 22, 2003, Claimant worked sporadically. Specifically, Claimant worked only one full shift, worked partial shifts on some days, and sometimes would not report for work at all, during this time period. The record indicates work continued to be available for Claimant at Goodwill until November 7, 2003, the last record date for which Claimant was scheduled to work.

C. The JCC's Order

The JCC found Claimant's medications "worked synergistically" to cause the ulcer, and awarded compensation for as long as the ulcer remained directly and proximately linked to the industrial injury. Although the JCC found Claimant's reasons for not reporting to work were inadequate, TPD benefits were awarded based on no earnings, actual earnings, or deemed earnings, depending on the time period for which benefits were awarded. The JCC erred in finding the ulcer condition compensable and in awarding any TPD benefits when Claimant refused suitable employment.

II. THE MAJOR CONTRIBUTING CAUSE STANDARD

Claimant argues he was not required to prove his workplace injury was the major contributing cause of his ulcer, because the ulcer is a "resulting manifestation" of his original workplace injury, as provided by section 440.09(1), Florida Statutes (2001).[2] In making this argument, Claimant mistakenly relies on Claims Mgmt., Inc. v. Drewno, 727 So.2d 395 (Fla. 1st DCA 1999).

In Drewno, we did deem it unnecessary for claimants to prove that their original workplace injury was the major contributing cause of a "manifestation." See id. at 398. The E/C in Drewno conceded the psychiatric injury at issue was a "manifestation" contested under section 440.09(1), Florida Statutes, and limited their argument to that section. The E/C took the position that the claimant's burden of proof to establish compensability of a "manifestation" was to show the original workplace injury was the major contributing cause of a resulting "manifestation." We expressly decided the case "[a]s so framed . . .," and disagreed with the E/C that it was necessary to prove the original workplace injury was the major contributing cause of a "manifestation." Id. at 397-398.

Two facts distinguish this case from Drewno. First, the E/C here does not concede the contested injury was a "manifestation." Second, Claimant's ulcer condition is not a "manifestation," as that term is defined in the workers' compensation statute.

A. Definition of Manifestation

The definition of "manifestation" can be found within the definition of "injury" in section 440.02(18), Florida Statutes (2001). A manifestation is "such diseases or infection as naturally or unavoidably result from" the compensable work place injury. See id. (emphasis added); Drewno, 727 *668 So.2d at 398. No competent, substantial evidence exists that Claimant's stomach ulcer was the natural or unavoidable result from his shoulder injury, nor did the JCC make such a finding.[3]

If manifestation were to be defined as broadly as the JCC did here, as merely a synergistic relationship, it would render section 440.09(1)(a), relating to subsequent injuries, and section 440.09(1)(b), relating to pre-existing conditions, meaningless. Obviously, every subsequent injury or compensable pre-existing injury must have some synergistic relationship with the original injury. Thus, under the JCC's reasoning, every injury would qualify as a "manifestation" if any relationship to the original workplace injury could be shown.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Employbridge and Gallagher Bassett Services, Inc. v. Viviana Llanes Rodriguez
255 So. 3d 453 (District Court of Appeal of Florida, 2018)
Hawkins v. Publix Super Markets, Inc.
177 So. 3d 1045 (District Court of Appeal of Florida, 2015)
McKenzie v. Mental Health Care, Inc./Summit Claims Center
43 So. 3d 767 (District Court of Appeal of Florida, 2010)
Carcamo v. Business Representation International
37 So. 3d 901 (District Court of Appeal of Florida, 2010)
Moore v. Servicemaster Commercial Services
19 So. 3d 1147 (District Court of Appeal of Florida, 2009)
Davis v. TMG STAFFING SERVICES, INC.
962 So. 2d 360 (District Court of Appeal of Florida, 2007)
Fardella v. Genesis Health, Inc.
917 So. 2d 276 (District Court of Appeal of Florida, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
900 So. 2d 664, 2005 WL 771369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-duda-sons-inc-v-kelley-fladistctapp-2005.