Crowder v. Jacksonville Transit Authority

669 So. 2d 1101, 1996 Fla. App. LEXIS 2578, 21 Fla. L. Weekly Fed. D 684
CourtDistrict Court of Appeal of Florida
DecidedMarch 19, 1996
DocketNo. 95-2586
StatusPublished

This text of 669 So. 2d 1101 (Crowder v. Jacksonville Transit Authority) 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
Crowder v. Jacksonville Transit Authority, 669 So. 2d 1101, 1996 Fla. App. LEXIS 2578, 21 Fla. L. Weekly Fed. D 684 (Fla. Ct. App. 1996).

Opinion

BARFIELD, Judge.

The claimant appeals a workers’ compensation order denying her claim for wage loss benefits from the employer and one carrier, based upon a settlement agreement she entered into with the employer and another carrier. We affirm.

The claimant injured her right wrist in a compensable accident in 1980 while driving a school bus for the Jacksonville Transit Authority (JTA), whose workers’ compensation insurer at the time was Travelers Insurance Company (Travelers). Over the next few years, she was provided medical treatment, including several surgeries, and indemnity benefits during the periods when she could not work. In March 1989, her orthopedic surgeon (Dr. Switzer) felt that she had reached maximum medical improvement (MMI) and could return to work. In May 1989, and again in June 1989, he reported to the employer that she was able to work.

[1102]*1102On August 3, 1989, the claimant heard a pop in her right wrist while making a turn with the school bus. At the time, JTA’s workers’ compensation insurer was Florida Employees Insurance Service Corporation (FEISCO). She was sent to an orthopedist (Dr. Jones) who treated her for a sprained wrist, but by January 1990 he felt there was nothing else he could offer her and recommended she see a neurosurgeon. In February 1990, she was evaluated by the chief of hand and microsurgery at the University of Florida College of Medicine (Dr. Dell), who reported in April 1990 that she should be declared MMI with restrictions on repeated rotation of her forearm and lifting more than ten or fifteen pounds with her right arm, and that based on the physical capacity evaluation he had requested, she had a nine percent permanent impairment rating. FEISCO paid the claimant wage loss benefits from January 1990 to March 1991.

In February 1991, the claimant, Jacksonville Transit Management, Inc. (JTM), and FEISCO filed a joint petition for an order approving a lump sum settlement with respect to the 1989 injury. In paragraph 5 of the stipulation in support of the joint petition, they agreed that the claimant had reached MMI according to Dr. Dell “at least as of April 26, 1990” with a nine percent permanent impairment, and that “[s]he can return to work driving a bus with power steering, but there are buses operated by the employer which do not have power steering, so she will be seeking other employment.” In paragraph 7, they agreed that the payment of the lump sum would not discharge the obligation of the employer and FEISCO to provide future remedial and palliative medical care, that Dr. Dell would remain authorized to treat the claimant, and that the employer and FEISCO would pay her $30,-000

... in full satisfaction of FEISCO’s obligation or liability to pay monetary compensation benefits on behalf of JTM ... on account of the work related accident or occupational disease which occurred on August 3, 1989. Nothing herein shall be construed to reduce, offset, release, or discharge JTM or any carrier for any accident occurring during some other period of coverage....

In paragraph 12, the claimant voluntarily withdrew all pending claims “arising out of accidents said to have occurred during FEIS-CO’s coverage of JTM.” The final paragraph of the joint petition stated:

Payment of the lump sum set forth above specifically does not reduce, offset, release, or discharge JTM or some other carrier, except FEISCO, from their obligation or liability to pay monetary compensation benefits, impairment benefits, death benefits, attorney’s fees which have accrued to date, and rehabilitation benefits available under the Florida Workers’ Compensation Act that may have occurred during some other period of coverage by a different carrier, including, but not limited to, Travelers’.

The lump sum settlement was approved in March 1991. In August 1991, a claim for wage loss benefits from March 1991 and continuing was filed against JTA and Travelers, citing the 1980 accident. The employer and Travelers asserted that the claimant was not entitled to wage loss benefits “as statute of limitations has run” and that her wage loss “is unrelated to 5/5/80 injury but related to 8/89 accident.” At the hearing, no live testimony was presented, but the depositions of Drs. Switzer, Jones, and Dell were received in evidence, as well as the pre-trial stipulation and the joint petition for approval of lump sum settlement and supporting stipulation. The parties stipulated that the claimant had received wage loss benefits from Travelers before the 1989 accident and wage loss benefits from FEISCO after the 1989 accident, but had not sought wage loss benefits from Travelers after the 1989 accident until the August 1991 claim was filed.

Dr. Switzer testified that the claimant was “a very difficult person to get back to any type of employment,” but that he felt she could drive a bus with power steering and would encourage her to use her hand as much as possible to avoid swelling problems. He related all of her right hand surgeries to the 1980 accident and felt that “she has some impairment of function,” but testified that he does not rate permanent impairment. Dr. [1103]*1103Jones opined that the 1989 sprain had resolved itself by the claimant’s second visit in August 1989 and that she had suffered no permanent impairment from the 1989 accident, explaining that she “had a preexisting injury and was base line level, and the injury on 8/3/89 bumped her above [the] base line level and then she came back down to the base line.” He testified that he would restrict her driving to a vehicle with power steering and that she would be prone to reinjury of her “abnormal wrist.” Dr. Dell testified that it would be speculative for him to render an opinion on causation because he had not reviewed the medical records, and that he could not apportion the permanent impairment rating he gave her without looking at the medical records, but that “intuitively I would say that the majority of her impairment, the majority of her problems, existed before this ’89 injury. But then I have to modify that statement by saying that I don’t have all the records.”

The claimant’s attorney argued that the 1989 accident was a temporary exacerbation of the 1980 injury, to which all of her problems and permanent impairment related, and that the real issue was the statute of limitations defense. He argued that in such cases the limitations period should be tolled until the claimant reaches MMI from the later injury. The attorney for the employer and Travelers argued that the lump sum settlement included “Dr. Dell’s 9% PI rating for the August of ’89 injury” and that the claimant “can’t claim wage loss for a year and a half based on a permanent injury for an ’89 accident and then turn around to another Carrier and say that wasn’t a permanent injury, it was just a temporary exacerbation.” He asserted that Dr. Dell testified he could not say within a reasonable medical probability that the 1989 injury was a temporary exacerbation, and argued that “to hold the Carrier Number 1 on the hook after they have gone to another Carrier, received wage loss benefits, and then washed out that claim based on a permanent aggravation, it’s unfair to then toll the statute of limitations claiming it’s a temporary exacerbation.” The claimant’s attorney responded that Travelers is not entitled to second-guess FEISCO decisions and that the joint petition for settlement, to which the employer agreed, specifically included language that negated release or discharge of the employer or any carrier “for any accident occurring during some other period of coverage.” He asserted:

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

Related

Structural Systems, Inc. v. Worthen
463 So. 2d 502 (District Court of Appeal of Florida, 1985)
Hertz Rent-A-Car v. Sosa
670 So. 2d 73 (District Court of Appeal of Florida, 1996)
Lambert v. Nationwide Mut. Fire Ins. Co.
456 So. 2d 517 (District Court of Appeal of Florida, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
669 So. 2d 1101, 1996 Fla. App. LEXIS 2578, 21 Fla. L. Weekly Fed. D 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowder-v-jacksonville-transit-authority-fladistctapp-1996.