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A. Duda & Sons4/7/2005
Appellants (E/C) argue the Judge of Compensation Claims (JCC) erred by awarding payment for Claimant's ulcer condition because Claimant's industrial accident was not the major contributing cause of the ulcer, and erred in her application of the "employee refuses employment" provisions of section 440.15(7), Florida Statutes (2001), when awarding temporary partial disability (TPD) benefits. We agree, and accordingly, affirm in part, reverse in part, and remand.
I. FACTUAL & PROCEDURAL HISTORY
Claimant injured his shoulder in a work-related accident in 2001, which ultimately necessitated surgery. Prior to this, Claimant was prescribed various medications for an unrelated back injury, which he continued to take after his shoulder surgery.
A. The Ulcer Condition
While being treated for his shoulder injury, Claimant was diagnosed with a perforated ulcer, which required hospitalization for ten days. Claimant sought benefits for this condition as a manifestation of his shoulder injury. An independent medical evaluation (IME) was performed as to the perforated ulcer. The IME physician testified "there was a milieu that the patient set up for himself with his alcohol and smoking, and then, once the medications he was using, caused a catastrophic perforation of the ulcer." The physician specifically testified that medication Claimant had been taking for both the unrelated back injury and his compensable shoulder injury could contribute to his ulcer condition. However, the physician could not opine, within a reasonable degree of medical certainty, as to the major contributing cause of Claimant's ulcer.
B. Claimant's Work Opportunities
Eventually, Claimant was placed on light duty work status, and the employer, having no light duty work available itself, offered to place Claimant in a job at Goodwill. Claimant did not report to Goodwill until almost two weeks past the start date. He worked one day, then stopped reporting for work. Claimant testified shoulder pain was part of the reason he did not return, but the primary reason was that he had to "mess with people's dirty shoes," and was bored. Goodwill's secretary testified work would have continually been available to Claimant from his initial reporting date until the E/C notified Goodwill that Claimant would no longer report. Shortly after Claimant's one and only day of work at Goodwill in April 2003, he was put on a no-work status for three days. During the three day "no work" period, Claimant accepted work with a neighbor at the same rate of pay he received at Goodwill. That job lasted approximately one and one-half months. For one week thereafter, while Claimant still did not report to Goodwill, he unsuccessfully sought alternative work with friends and the employer.
In June of 2003, Claimant underwent surgery for his ulcer. Although physicians' records indicate Claimant was released with restrictions from this surgery, none of the records indicate Claimant could not return to work at Goodwill. The record is silent as to whether Claimant looked for alternative work or contacted the employer for employment other than with Goodwill after his release.
In early August, Claimant sought to return to light duty work with the employer. However, none was available. In mid-September, the E/C sent Claimant a letter reminding him he could return to his job at Goodwill on September 29, 2003. Claimant did not report for work until October 1, 2003, and from that date through October 22, 2003, Claimant worked sporadically. Specifically, Claimant worked only one full shift, worked partial shifts on some days, and sometimes would not report for work at all, during this time period
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