686 So. 2d 613 | Fla. Dist. Ct. App. | 1996
Dissenting Opinion
dissenting.
The parties should be spared the expense of further proceedings exceedingly unlikely
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Although the claimant has returned to sedentary work with the employer that she has been able to perform on a part-time basis, this fact does not demonstrate that she is capable of competitive gainful employment. ...
The evidence showed that the position Ms. Cooper was given exists at only three of sixty-nine schools that the District operates; and that all three positions are held by injured workers receiving workers’ compensation benefits.
The majority relies on Walr-Mart Stores, Inc. v. Liggon, 668 So.2d 259 (Fla. 1st DCA 1996), in reversing in part and remanding for a determination whether “Cooper’s position constitutes sheltered employment.” But we said of this subsidiary question in Liggon:
The sheltered employment doctrine does not have a life of its own. Rather, it merely serves to vindicate the legislatively imposed parameters of permanent and total disability.
668 So.2d at 271. In the present case, the judge of compensation claims unequivocally found that Ms. Cooper, a sixty-eight-year-old school bus driver with an eighth-grade education, no typing skills, and a sixteen per cent impairment of the body as a whole, was permanently, totally disabled.
Under the statute, a compensation order “shall set forth the findings of ultimate facts and the mandate; and the order need not include any other reason or justification for such mandate.” § 440.25(4)(e), Fla. Stat. (1995). The pertinent rule adds nothing to this requirement. Fla. R. Work. Comp. P. 4.080(c)(“The order of the judge of compensation claims shall set forth findings of fact_”). The compensation order should be affirmed.
Lead Opinion
The employer, School District of Escambia County, appeals an order of the judge of compensation claims (JCC) awarding permanent total disability (PTD) benefits to claimant, Dorothy Cooper. The employer contends that the JCC erred in finding Cooper permanently and totally disabled after concluding that she was capable of part-time sedentary work and in accepting the testimony of Cooper’s treating physician over that of three other physicians. We agree with the employer’s first issue and reverse and remand, but affirm the second.
Cooper was injured on November 23, 1990, by a fall in the school bus she drove for the employer and sustained a 16 percent permanent impairment to the body as a whole. Four physicians testified that she is capable of part-time sedentary work, and the JCC acknowledged that Cooper has been working in a part-time sedentary clerical position for the employer since August 1992. The JCC nevertheless concluded that Cooper is entitled to PTD benefits, because she is not capable of performing light-duty work on an uninterrupted basis. This was error.
In United States Fidelity & Guaranty Ass’n v. Kemp, 658 So.2d 1212 (Fla. 1st DCA 1995), we stated that the ability to work part-time and to perform sedentary work contradicts a conclusion that a claimant is totally disabled and precludes an award of PTD benefits. Accord Wal-Mart Stores, Inc. v. Liggon, 668 So.2d 259 (Fla. 1st DCA 1996). We therefore reverse and remand with directions for the JCC to reconsider this case in light of Kemp, decided after the JCC issued the final order at bar.
Claimant acknowledges the conflict between the JCC’s order and this court’s decisions in Kemp and Liggon, but contends that Cooper’s position constitutes sheltered employment; thus, it does not preclude the award of PTD benefits. The JCC, however, did not address this issue. Whether a position is sheltered requires a factual determination. Id. at 271. Moreover, much of the evidence on this point consisted of live testimony at the hearing rather than deposition. Hence, the JCC should determine this issue on remand. See Kemp, 658 So.2d at 1214 (and cases cited therein).
We reject the employer’s second issue, because the JCC did not rely upon the testimony of Dr. Brown over that of the other physicians, but instead merely recited the opinions of the various physicians.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.
