FOR IMMEDIATE RELEASE
March 28, 2019
Contact:Eric W. Boyer, Esq.
305.670.1101 Ext. 1023
JUDGE DENIES PERMANENT TOTAL DISABILITY CLAIM
Workers’ Compensation Claim Based on Permanent Total Disability Benefits
ORLANDO ― Quintairos, Prieto, Wood & Boyer, P.A., Frank C. Bozeman III, a partner in the Pensacola office representing the Employer/Carrier Southeastern Freight Lines and Gallagher Bassett Services obtained a Final Compensation Order denying Claimant’s Petition for Permanent Total Disability Benefits. Claimant worked as a truck driver for Southeastern Freight Lines from May 1992 through December 1, 2016 when he was involved in an accident. Claimant had worked as a truck driver for most of his career and is 64 years old with a high school diploma and truck driver training from Mid Florida Tech.
On December 1, 2016 Claimant was performing his assigned duties and sustained an injury. Claimant had several surgeries to his back, neck and other body parts. In prior litigation, the Employer/Carrier had all claims against Southeastern Freight Lines dropped except for the neck injury.
Claimant treated with an Orthopedic Surgeon, and a Pain Management Doctor, up until the time of the Final Hearing on March 14, 2019. Claimant has been accepted by both Social Security Disability and a private long-term disability policy for multiple conditions. Claimant attempted through deposition testimony from both treating doctors to have them agree that, if Claimant denied further treatment, he would be at MMI and sought testimony that the Claimant was Permanently and Totally Disabled.
Counsel for the Employer/Carrier had both doctors testify that regarding the neck injury alone, that Claimant could perform the full range of sedentary or light-duty work and that Claimant was not at overall MMI. The Employer/Carrier obtained an IME from another Orthopedic Surgeon in Orlando who agreed that, regarding Claimant’s neck injury only, that he could perform the full range of light duty work and approved 10 job descriptions. An EMA had to determine whether Claimant’s hand and upper extremity conditions were related to the neck. An EMA was obtained finding there were no upper extremity restrictions or limitations as a result of the on-the-job neck injury.
At Final Hearing, Claimant testified that he was totally disabled and could not perform any jobs in Orlando because of his severe physical restrictions and reliance on narcotics and a sleep disorder. The Employer/Carrier’s counsel was able to discredit Claimant’s testimony and have Claimant testify there were no medical restrictions from treating doctors that limited jobs due to his neck injury only and there were no medical restrictions regarding his narcotic use or sleep problems.
Claimant put on a Vocational Expert who testified that Claimant could not perform any job in the local economy based on his physical restrictions and non-transferrable skills. The Employer/Carrier offered on a Vocational Expert and a Labor Market Survey expert who both testified that Claimant could perform the full range of light-duty work and there were multiple job classifications and multiple jobs in the local economy that Claimant could perform based on his neck injury.
The Judge determined that both treating doctors had not expressed a “clear, explicit expression” in the medical records that Claimant was at overall MMI. He further found that Claimant had failed to establish entitlement to PTD based on the three options available under Blake v. Merck & Co., Inc., 43 So. 3d 882 (Fla. 1st DCA 2010).
Finally, the Judge found that Claimant could perform sedentary to light-duty work related solely to his compensable neck condition and that Claimant’s claim for Permanent Total Disability Benefits should be dismissed.
The Employer/Carrier will pursue all litigation costs against Claimant in this matter.
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Frank C. Bozeman, III is managing partner in the Pensacola office. He has focused his litigation practice on the defense of employers and carriers in workers’ compensation matters and defense of employers against a wide range of employment-related claims including employment discrimination, retaliation, wrongful termination, FLSA audits, and wage and hour matters, among various other areas. He also represents physicians and hospitals in medical malpractice claims. He received his law degree from Cumberland School of Law Samford University in 1989. Mr. Bozeman is admitted to practice law in Florida and Alabama.
Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 380 lawyers serving clients from 23 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.