Opinion
Nos. AP-395, AR-322.
September 13, 1983. Rehearing Denied October 19, 1983.
Appeal from the Deputy Commissioner.
James N. McConnaughhay and Arthur C. Beal, Jr. of McConnaughhay, Roland Maida, Tallahassee for Arnold Lumber Company and R.P. Hewitt Associates of Florida, Inc., for appellants/appellees.
Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes, Fite, Bassett Fensom, Panama City, for Napoleon Randall, appellee/appellant.
This is an appeal by Arnold Lumber Company (Arnold) from a final compensation order awarding the claimant permanent total disability (PTD) benefits, consolidated with an appeal by claimant from an order finding no bad faith and denying claimant's attorney a fee to be paid by Arnold. We reverse the award of PTD and affirm the finding of no bad faith.
Claimant is a pulpwood worker who is employed by Vince Garner (Garner), an independent contractor who cuts timber and sells it to Arnold. Arnold has no connection with the claimant except that it provides workers' compensation insurance for Garner's employees.
Claimant sustained a compensable injury on October 24, 1979 when a tree fell on him and fractured his right fibula. He was treated by Dr. Brooks who found the claimant had reached maximum medical improvement (MMI) on December 17, 1979 and released him to return to work without limitation on that date. Dr. Brooks assigned no permanent impairment rating. On February 6, 1981, claimant was examined by Dr. Rohan, an orthopedist. Dr. Rohan determined that claimant had a severe foot drop due to peroneal nerve injury caused by the industrial accident, and that claimant's permanent impairment was 41% of the leg and 16% of the body. Dr. Rohan placed no limitations on the claimant, but stated he would have trouble doing pulpwood work or handling jobs that required a great deal of walking. On August 2, 1982 a neurologist confirmed the peroneal nerve injury.
After being released by Dr. Brooks on December 17, 1979 claimant returned to work with Garner and continued to do pulpwood work. He also worked on Garner's farm, worked for other farmers hoeing peas and watermelons, and mowed lawns. He testified that he had worked approximately four or five days a month in 1981, that he could work fixing chain saws, and could handle a job pumping gas "with ease," if such work was available. Claimant admitted he had worked in the woods sawing timber as recently as the month before the hearing.
Although there is conflicting evidence on how often claimant worked both before and after the accident, there is no dispute that "paperwooding" is not steady work and that it rarely involves working five days a week. The deputy commissioner (deputy) found that the claimant worked an average of two and one-half days a week and earned $25 a day. Garner's records show that the claimant only worked slightly less in 1981 and 1982 after he returned to work than he had prior to his injury.
The uncontradicted medical testimony of both Dr. Brooks and Dr. Rohan shows that claimant could return to work without restrictions. The evidence showed that the claimant not only could work but did work after his release at various jobs including pulpwooding and had worked at pulpwooding as recently as a month before the hearing. Claimant also testified that he could work fixing chain saws and could handle a job pumping gas "with ease." Notwithstanding this testimony the deputy found the claimant to be PTD from the date of MMI to the date of the hearing and continuing as long as claimant was legally entitled to such benefits.
Section 440.15(1)(b), Fla. Stat. (1979) relating to the payment of PTD benefits provides in part:
no compensation shall be payable under paragraph (a) [for PTD] if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation.
By the claimant's own testimony he was not only physically capable of engaging in gainful employment but he actually engaged in gainful employment during the period for which PTD was awarded. The deputy's finding of PTD is contrary to the law and to the evidence on this claim.
On his appeal, claimant contends that there is evidence to support a finding of bad faith on the part of employer, Garner. However, that is not the issue to be decided by this court on appeal. The issue to be decided by this court is whether there is competent substantial evidence to support the deputy's denial of the claim for an attorney's fee to be paid by Arnold because of the lack of bad faith on the part of Garner. There is competent substantial evidence to support the deputy's finding that there was no bad faith on the part of Garner.
The award of PTD is REVERSED and the deputy's finding of no bad faith on the part of the employer is AFFIRMED.
BOOTH, J., concurs.
WENTWORTH, J., dissents.
I would affirm in all respects the deputy's resolution of the sharp conflicts and patent incredibilities in the testimony, including claimant's subjective estimate of his diverse capacities:
The Claimant did work at least part-time, for the Employer for the 13 weeks immediately preceding his injury. In that sense, he adopted part-time work as his custom . . . [I]t is hereby determined that the Claimant's average weekly wage is $62.50 per week ($25.00 per day X 2.5 days) and his compensation rate is $41.63 per week ($62.50 X .666). During the three years after his injury, records kept by Mr. Garner suggests that the Claimant actually worked for him more than just two or three days as testified to by the Claimant. These records reflect that the Claimant worked for the Employer [part-time during] eight weeks in 1979; eight weeks in 1981; and three weeks in 1982. As with the testimony regarding the Claimant's average weekly wage, the parties are in direct conflict. . . .
The Claimant is permanently and totally disabled. By education and experience he is unsuited for most light sedentary work. Dr. Rohan states that he can no longer do manual labor. The Claimant is 57 years old and barely able to read or write. Since his accident, he has worked intermittently and . . . has not been able to work for Mr. Garner's operation on a regular basis . . . The Claimant's injury has effectively removed him from the open labor market. He is unable to work on a regular basis. He has sincerely looked for lighter work but no one would hire him. He is entitled to compensation for permanent total disability.
The record substantiates a steadily diminishing number of days' employment each year since the accident, for a claimant whose compensation rate is already limited by customary pre-existing half-time employment. I am unable to second-guess the deputy as to either the sincerity of claimant's effort, or the causal contribution by his compensable injury to his removal from the open labor market.
In the eight months preceding the 1982 hearing, employer records reflected some seven days (at $25.00 per day, or $175.00 over three weeks' time) work for Garner, together with odd jobs entirely consistent with the determination he is "unable to work on a regular basis."