Stewart v. CRS Rinker Materials Corp.

855 So. 2d 1173, 2003 Fla. App. LEXIS 14909, 2003 WL 22259454
CourtDistrict Court of Appeal of Florida
DecidedOctober 3, 2003
Docket1D02-1469
StatusPublished
Cited by10 cases

This text of 855 So. 2d 1173 (Stewart v. CRS Rinker Materials Corp.) 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
Stewart v. CRS Rinker Materials Corp., 855 So. 2d 1173, 2003 Fla. App. LEXIS 14909, 2003 WL 22259454 (Fla. Ct. App. 2003).

Opinion

855 So.2d 1173 (2003)

Kenneth STEWART, Appellant,
v.
CRS RINKER MATERIALS CORP., Appellees.

No. 1D02-1469.

District Court of Appeal of Florida, First District.

October 3, 2003.

*1174 Mark Dickstein, Esq. of Feldman, Dickstein & Getz, LLP, North Miami Beach; Jay M. Levy, Esq. of Jay M. Levy, P.A., Miami, for Appellant.

Frank Angione, Esq. and April R. Burnette, Esq. of Benson, McGrath, Douglas, Angione, Phillips & Ross, P.A., Ft. Lauderdale, for Appellees.

LEWIS, J.

Claimant, Kenneth Stewart, seeks review of a workers' compensation order and argues that the Judge of Compensation Claims ("JCC") erred in denying temporary partial disability ("TPD") benefits for the time periods from November 1, 2000, through December 10, 2000, and from January 4, 2001, through April 24, 2001, because the JCC improperly based her denial solely upon appellant's termination from his employment. Because the JCC relied solely on claimant's termination as a basis for the denial of TPD benefits for these time periods and failed to consider whether claimant satisfied his burden of establishing a causal connection between his work-related injury and his loss of earning capacity after his termination, we reverse the order and remand with directions. Claimant also contends that the JCC erred in denying TPD benefits for the time period from July 21, 2001, through September 23, 2001, because the JCC did not find that claimant's relocation during this period was the product of an improper motivation on his part. We agree and, therefore, reverse the JCC's denial of TPD benefits for this time period as well.

Claimant, who worked as a plant laborer for CSR Rinker Materials Corporation ("Employer"), which is located in West Palm Beach, Florida, suffered a compensable work-related injury on October 5, 2000, when a heavy truss "slammed [him] to the ground." During the hearing before the JCC, claimant testified that his plant laborer position had consisted of cutting steel, building trusses, loading and unloading trucks, and assisting in other work. While claimant initially earned $7.50 an *1175 hour in this position, he eventually began earning $8.00 an hour.

According to claimant, as a result of his work-related accident, he suffered serious pain down his back, buttocks, and through his left leg. On the day of the accident, claimant sought medical treatment and was prescribed pain medication. Claimant subsequently underwent an MRI and received physical therapy. Claimant further testified that, while he continued to work with the Employer after his work-related accident, the Employer modified his responsibilities to light-duty work such as cleaning the shop. Claimant worked for the Employer for approximately three weeks after his work-related accident until the Employer terminated him on November 1, 2000, for excessive absenteeism.[1] According to claimant, his low back complaints worsened after his termination.

Subsequent to his termination, claimant unsuccessfully applied for different positions with three hospitals and various fast food restaurants and for vocational training. On May 23, 2001, Ocean Tree Condominium ("Ocean Tree") initially hired claimant as a maintenance technician but eventually reassigned him to a housekeeping position as a result of his work restrictions. In July 2001, claimant relocated to Pensacola because he and his wife were having marital problems and he thought he needed "to be with his family, be back home with [his] mom." While there, claimant worked for the city of Pensacola as a laborer for eight hours one day and four hours the next, earning $6.25 an hour. Due to his inability to perform his job duties, claimant quit his job after those two days. Claimant returned to West Palm Beach in September 2001 and resumed working for Ocean Tree, where he was working at the time of the hearing, earning $9.50 an hour.

Via deposition, Dr. Musso testified that, after evaluating claimant on October 30, 2000, and conducting an MRI, his opinion was that claimant suffered from a lumbar disk herniation at L5-S1. Dr. Musso recommended that claimant begin a physical therapy program, placed claimant on light-duty work status, and maintained him on such after claimant's November 13, 2000, visit. According to Dr. Musso, when he first evaluated claimant, claimant was on light-duty work status, with a maximum lifting restriction of twenty pounds, and was unable to return to work at that time. After recommending that claimant undergo a functional capacity evaluation ("FCE") and after receiving those test results, Dr. Musso placed claimant at maximum medical improvement ("MMI") on January 4, 2001, with a 7% permanent physical impairment rating. At that time, Dr. Musso did not place any work restrictions on claimant due to claimant's uncooperativeness with the FCE. However, when Dr. Musso saw claimant on March 15, 2001, he "put him back to work" on modified-work duty.

Dr. Rubenstein, who performed claimant's FCE on December 20, 2000, and who testified via deposition, opined that claimant was able to work in a sedentary to light-duty capacity. In his medical report, Dr. Rubenstein also opined that claimant was unable to return to his previous job description. Dr. Krost, who initially saw claimant on April 25, 2001, testified, via deposition, that claimant suffered a low *1176 back injury and concurred with claimant's light-duty work status. While Dr. Krost did not believe that claimant had reached MMI at that time, he subsequently placed claimant at MMI on October 17, 2001. As a result of his Independent Medical Evaluation, which he conducted on May 17, 2001, Dr. Reuter opined that claimant suffered from cervical strain/sprain, lumbar strain/sprain, lumbar disc herniation, and radiculitis. Dr. Reuter further opined that claimant was able to work in a modified light-duty status with a lifting restriction of no more than fifteen pounds and with significant restrictions as to bending, sitting, and stooping.

While in Pensacola, claimant was authorized to be seen and treated by Dr. Buchalter, who agreed with a recommendation that claimant undergo epidural steroid injections and that he continue on light-duty work status. Dr. Buchalter released claimant to full-time maintenance work on a light-duty work status pending the completion of the injective therapy. He opined that claimant had not yet reached MMI.

In her order, the JCC set forth that, while the Employer terminated claimant on November 1, 2000, for violation of the Employer's Absentee Policy, claimant could still be entitled to benefits if he satisfied the burden of showing that his work-related injury contributed to his wage loss after the termination. The JCC also set forth that, although a job search was no longer a requirement for TPD benefits, here, claimant testified that he unsuccessfully applied for various jobs following his termination. After setting forth the pertinent facts, the JCC determined that:

Claimant had demonstrated his earning capacity in the job with the Employer prior to his termination for excessive absenteeism. But for his excessive absences and tardiness, he would have remained an Employee of the Employer. Therefore, I find that for the period of November 1, 2000, through December 10, 2000, the Claimant failed to demonstrate that his loss of earnings was caused by an incapacity to earn because of the work injury, either in the job he had with the Employer or any other Employment. Accordingly, the claim for [TPD] benefits ... is denied.

With regard to the time period from January 4, 2001, through April 24, 2001, the JCC rejected Dr.

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Bluebook (online)
855 So. 2d 1173, 2003 Fla. App. LEXIS 14909, 2003 WL 22259454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-crs-rinker-materials-corp-fladistctapp-2003.