07-1824 FERRELL GAS and GALLAGHER BASSETT SERVICES, INC. v. NORMAN CHILDERS

State: Florida

Court: Florida First District Court

Docket No: 07-1824

Case Date: 04/07/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

FERRELL GAS and GALLAGHER BASSETT SERVICES, INC., Appellants,

CASE NO. 1D07-1824 v. NORMAN CHILDERS, Appellee. _____________________________/

Opinion filed April 7, 2008. An appeal from an order of the Judge of Compensation Claims. Diane B. Beck, Judge. Jeffrey E. Appel of Appel & Gaines, LLP, Lakeland, for Appellants. Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami; and Alex Lancaster and Amy L. Sergent of Lancaster & Eure, P.A., Sarasota, for Appellee.

PER CURIAM. The employer/carrier challenge a workers' compensation order awarding permanent total disability benefits. They argue the judge of compensation claims

should not have considered the claimant's vocational abilities in connection with his physical limitations in awarding benefits. Because these factors were properly considered, the appealed order is affirmed. The claimant suffered an industrial injury in 2004, for which the employer/carrier accepted compensability and provided medical care and indemnity benefits. However, they denied permanent total disability benefits on the basis that the claimant is physically capable of sedentary work. After an evidentiary hearing, the judge determined that while the claimant's physical limitations alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totally disabled. The current and applicable version of section 440.15(1)(b), Florida Statutes, provides a list of injuries which presumptively qualify a claimant for permanent total disability benefits. The statute then provides that, in all other cases, the claimant "must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to his or her physical limitation."

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