09-5138 WYETH/PHARMA FIELD SALES and GALLAGHER BASSETT, v. VIVIAN TOSCANO

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State: Florida

Court: Florida First District Court

Docket No: 09-5138

Case Date: 07/07/2010

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

WYETH/PHARMA FIELD SALES and GALLAGHER BASSETT, Appellants, v. VIVIAN TOSCANO, Appellee. _____________________________/ Opinion filed July 7, 2010.

CASE NO. 1D09-5138

An appeal from an order of the Judge of Compensation Claims. Charles Hill, III, Judge. Date of Accident: September 24, 2007. Richard S. Unger of Hinshaw & Culbertson LLP, Fort Lauderdale, for Appellants. R. Cory Schnepper of Levine, Busch & Schnepper, P.A., Miami, for Appellee.

PER CURIAM. Wyeth/Pharma Field Sales, the employer, and Gallagher Bassett, its servicing agent (collectively E/SA), challenge an order of the Judge of Compensation Claims (JCC) awarding Vivian Toscano (Claimant) temporary

partial disability (TPD) benefits. The E/SA argues this was error because Claimant failed to establish a "causal connection" between her compensable injuries and her subsequent loss of wages. We disagree, and affirm. Background Before her workplace accident, Claimant was employed as a pharmaceutical sales representative earning $1,327.57 per week. This job required Claimant to engage in regular walking, bending, lifting, pushing, and pulling. On September 24, 2007, Claimant slipped and fell while performing work in the course and scope of her employment, resulting in compensable injuries to her hip, shoulder, elbow, left ankle and knee, and lumbar and cervical spine. Claimant received remedial medical care and treatment for these injuries, and during her recovery she was restricted by her authorized physician from performing the functions of her pre-injury job. Nevertheless, Claimant was

medically cleared for sedentary and, later, part-time sedentary employment, although she was still healing from her injuries. Because Claimant was unable to perform her pre-injury employment, she no longer earned the salary she was previously capable of earning; instead, Claimant's earnings were reduced to $0.

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Although the Employer accepted compensability of Claimant's accident and injuries, it did not offer or secure modified work appropriate to her restrictions or furnish any reemployment services to assist her in finding alternate work during her period of medical recovery. While Claimant was still healing from her

compensable injury, and still precluded from performing her pre-injury job, her employment was officially terminated as the consequence of a permanent lay-off involving Claimant and approximately 1,200 other employees. The E/SA then denied TPD benefits on the basis that Claimant's loss of earnings was not causally related to her workplace injuries but, rather, was caused by the corporate downsizing. The E/SA contested Claimant's petition for TPD benefits on the ground that she was capable of working and voluntarily limiting her income. At the ensuing evidentiary hearing, the E/SA stipulated Claimant had not reached maximum medical improvement (MMI), and did not introduce any evidence suggesting Claimant had refused suitable employment offered to or procured for her. Moreover, the E/SA did not introduce any evidence suggesting Claimant was terminated from post-injury employment for misconduct, or left this employment for unjustifiable reasons. Rather, the E/SA insisted Claimant could not satisfy her burden of proving a causal relationship between her injuries and the subsequent loss of income, because she failed to engage in a job search during her period of 3

medical recovery.

The JCC disagreed and concluded that, by proving the

incapacity to perform her pre-injury job, which resulted in a direct reduction of earnings sufficient to qualify her for TPD benefits, Claimant met her burden of proving the requisite causal connection. The JCC also noted that the E/SA had not informed Claimant that it expected her to perform a job search. The JCC

determined that, to the extent the workers' compensation statute requires a job search, the E/SA had waived such a requirement by failing to put Claimant on notice of its expectations. Analysis Although resolution of this issue could be achieved by simply noting that competent substantial evidence supports the JCC's finding that Claimant established a causal connection between her injuries and loss of wages, such a resolution would do little to clarify the legal standard applicable to the payment of TPD benefits -- an issue which we observe remains a source of confusion. Indicative of this uncertainty is the E/SA's ability to make the following seemingly irreconcilable assertions which are neither disingenuous nor obtuse under current law: It is understood that a specific work search is not necessarily a requirement for entitlement to TPD under the law in effect on Claimant's date of accident in 2007. 4

and Accordingly, it is clear, that evidence of an unsuccessful search is needed when determining whether a Claimant has met her burden of proof that the wage loss is due to her injuries. Accordingly, we write to clarify the legal standard governing the payment of TPD benefits pursuant to section 440.15(4), Florida Statutes (2007). Distinct from temporary total disability (TTD) benefits, an employee's entitlement to temporary partial disability benefits is predicated on the ability to work, albeit with restrictions. See section 440.15(4)(a)-(e), Florida Statutes (2007) (providing TPD benefits are payable only when employee has been released to perform restricted work); cf. section 440.15(2)(a) (stating TTD benefits are

payable for disability "total in character but temporary in quality"). In Holiday Care Center v. Scriven, 418 So. 2d 322, 324 (Fla. 1st DCA 1982), this court explained that TPD benefits are not intended to compensate for total disability; rather, TPD benefits compensate an employee who has been returned to some level of restricted work, but is still recovering from the effects of her injury and has been temporarily displaced from her pre-injury employment and wages: [I]t does not necessarily follow from this worker's recovery of physical ability to work that she also miraculously recovered, by virtue of the doctor's pronouncement, an immediate ability to earn from work the same "salary, wages, and other remuneration" she earlier lost by this industrial accident. At that point she was a worker 5

without a job, still short of [MMI], still injured and recovering, and in that condition still partially disabled both physically and economically due to "personal injury . . . by accident arising out of and in the course of employment." Id. The Statute Under the current TPD statute, benefits are payable "if overall MMI has not been reached" and the medical conditions resulting from the accident create restrictions not an absolute prohibition, on the injured employee's ability to return to work, as argued by the E/SA.

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