A judge of compensation claims' decision to award permanent total disability benefits was not supported by substantial evidence because of evidence that the claimant's efforts to seek re-employment were inadequate, according to a decision from Florida's 1st District Court of Appeal.

Case:
Advanced Masonry Systems, et al., v. Molina, No. 1D07-6540, 2/19/09, published.

Facts:
Sarafin Molina, a mason, fell and hurt his back in the scope of employment on Oct. 8, 2001. He received physical therapy and injections through October 2004, when he underwent lumbar fusion surgery that also involved the placement of metallic hardware into his spine.

Molina's condition worsened, and he underwent a second surgery to remove the hardware, which made his condition even worse. He petitioned for permanent total disability benefits in February 2006.

The parties stipulated that Molina had suffered a "catastrophic injury" pursuant to section 440.15(1)(b) of the Florida Statutes. The employer/carrier defended itself by arguing that Molina retained a substantial earning capacity, he voluntarily limited his income, and refused suitable employment.

Procedural History:
The judge was not persuaded by the employer/carrier's defenses, and concluded that no job opportunities fell within Molina's physical restrictions. Next, the court concluded that although Molina, a monolingual Spanish speaker, did not take advantage of free English classes, the employer/carrier failed to offer evidence about whether Molina's inability to speak English precluded him from employment. Lastly, the judge found that the employer/carrier did not offer any evidence showing that Molina refused any job within his physical restrictions.

The judge of compensation claims concluded that the employer/carrier did not prove that the claimant had retained a substantial earning capacity, and determined that Molina was entitled to permanent total disability benefits based on the stipulation that he was catastrophically disabled.

Analysis:
The appellate court first noted Molina's testimony that he was "in too much pain to attend employment interviews or to search for employment" could not override medical evidence stating that he is capable of performing sedentary work.

The appellate court also cited differences between the judge of compensation claims' findings, and evidence on the record.

"Here, although the JCC rejected the E/C’s defenses concerning available work within claimant’s restrictions, none of the JCC’s findings are supported by competent, substantial evidence.  First, the JCC found that ReEmploy presented claimant with only one physician-approved work opportunity.  However, the record reveals claimant was given five physician-approved work opportunities."

The appeals judges also pointed out that the employer/carrier did present evidence that Molina's job search was negatively affected by his refusal to take the free English classes. One vocational expert testified that a potential employer did not hire Molina because he could not speak English.

Disposition:
Reversed and remanded. The court concluded, "claimant is barred from receiving benefits until he accepts suitable employment or a judge of compensation claims finds his refusal is justified."

To read the court's decision, click on the case title in the side bar.

Source: WorkCompCentral