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Job Offer No Defense, Worker Gets Permanent Total Disability

August 19, 2005

A JCC judge found an employer/carrier's job offer to be an insufficient defense and awarded permanent total disability benefits in Crites, Donald v. Advanced Refrigeration, Inc. (12 FLWCLB 108, Fla. JCC 2005).

Judge Thurman awarded a truck mechanic permanent total disability benefits. The employer/carrier's job offer did not establish that the claimant maintained a substantial wage-earning capacity and thus, an E/C cannot defeat a petition for PTD benefits by offering the claimant a job if it does not offer any evidence that the claimant can perform the work.

A truck mechanic injured his lower back on May 21, 2002, when he and coworker were moving a 16-foot metal gate that dropped. After two back surgeries and unsuccessfully attempting to return to work, the claimant sought PTD benefits. While the E/C had a job available for the claimant, it presented no evidence that the claimant could perform the job duties. The Judge of Compensation Claims concluded that the claimant was entitled to disability benefits.

An orthopedic surgeon diagnosed and treated the claimant for lumbar stenosis and disc protrusion. After two surgeries, the claimant continued to experience back and leg pain. The surgeon opined that the claimant was at maximum medical improvement and that he could not work. The surgeon restricted the claimant from repetitive bending, twisting, squatting, climbing and lifting more than 20 pounds. He also imposed breaks on the claimant from prolonged walking, standing and sitting.

The claimant attempted to continue working after his MMI diagnosis, but continued to voice complaints of pain to his surgeon. The claimant left work early every day and was unable to work more than four or five hours a day. The surgeon concluded that the claimant was unable to work a full eight-hour day, and said he was "disabled from meaningful, realistic work activities."

The claimant was 66 years old at the time of the merits hearing. He had been a truck mechanic for six years at the time of his injury. He had a seventh-grade education and had been on Social Security disability for an unrelated condition before becoming a mechanic. Testing by a vocational expert determined that the claimant was functionally illiterate. The vocational expert agreed that the claimant was unable to return to work as a mechanic due to his industrial injuries. The expert also testified that the claimant would qualify for Social Security disability as a result of his age, education, past relevant work, and medical restrictions.

The E/C presented no evidence to carry its burden that the claimant could perform substantial gainful work that existed in significant numbers in the national economy. Although the E/C offered the claimant a job, the JCC said that did not establish that the claimant was employable. Finding the evidence supported the claimant's petition, the JCC awarded PTD benefits.