Gulf Management, Inc., and Gallagher Bassett Services, Inc. v. Talmadge Wall

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2020-3741

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GULF MANAGEMENT, INC., and

GALLAGHER BASSETT SERVICES,

INC.,

Appellants,

v.

TALMADGE WALL,

Appellee.

_____________________________

On appeal from the Office of the Judges of Compensation Claims.

Mark A. Massey, Judge.

Date of Accident: March 18, 2009.

November 29, 2023

TANENBAUM, J.

Both Gulf Management, Inc. and its servicing agent,

Gallagher Basset Services, (collectively referred to herein as Gulf

Management) appeal an order of the judge of compensation claims

(“JCC”) awarding Talmadge Wall permanent total disability

benefits (“PTD”) under section 440.15(1), Florida Statutes. Gulf

Management asserts several grounds for setting aside the order,

but essentially, the grounds are variations of a “sufficiency-of-the-

evidence” argument. That is, Gulf Management, in several ways,

attacks how the JCC considered and weighed the live testimony

and other evidence given at the final merits hearing, and it also

contends that the JCC misapplied the so-called “Blake methods.”

See Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010). We

affirm because the JCC’s findings of fact have support in

substantial evidence found in the record, and his conclusions

properly applied the governing statute to those facts. We hasten,

though, to highlight two important points in the analysis that

follows. One is our role in conducting judicial review of an

adjudicative order stemming from a quasi-judicial administrative

proceeding like the one had here. The other has to do with the role

that the Blake methods play in applying section 440.15(1) to the

evidence when determining a PTD claim.

I

First, our role. The JCC is an administrative hearing officer

vested by the Legislature with quasi-judicial authority and tasked

with adjudicating a dispute between an injured worker and the

employer over a claim for benefits under chapter 440. See

§§ 440.192, 440.25, 440.29, 440.33, 440.45, Fla. Stat.; cf. Art. V, § 1,

Fla. Const. (providing that “administrative officers [] may be

granted quasi-judicial power in matters connected with the

functions of their office”). As an adjudicator, the JCC conducts a

final hearing at which he or she receives and weighs the evidence

presented and makes findings of fact material to the dispute.

See §§ 440.25(4), 440.29, 440.33, Fla. Stat. “[T]he weighing of

evidence and judging of the credibility of witnesses . . . are solely

the prerogative of the [JCC] as finder of fact.” Strickland v. Fla. A

& M Univ., 799 So. 2d 276, 278 (Fla. 1st DCA 2001). “It is the

hearing officer’s function to consider all the evidence presented,

resolve conflicts, judge credibility of witnesses, draw permissible

inferences from the evidence, and reach ultimate findings of fact

based on competent, substantial evidence.” Heifetz v. Dep’t of Bus.

Regul., Div. of Alcoholic Beverages & Tobacco, 475 So. 2d 1277,

1281 (Fla. 1st DCA 1985).

By law, we have the authority to review an order of a JCC. See

§ 440.271, Fla. Stat.; cf. Art. V, § 4(b)(2), Fla. Const. (“District

courts of appeal shall have the power of direct review of

administrative action, as prescribed by general law.”). This judicial

review is still appellate review, and it is limited with respect to the

JCC’s adjudication of disputed facts.

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[W]henever any person . . . may be clothed with authority

to hear testimony and charged by law with the duty of

deciding questions of fact . . . [he] is at least acting in a

quasi-judicial capacity and as such fact-finding arbiter

his . . . findings are entitled to great weight and should

not be reversed unless there is no competent, substantial

evidence which supports such findings.

U.S. Cas. Co. v. Md. Cas. Co., 55 So. 2d 741, 744–45 (Fla. 1951).

“This is so because [the JCC] is the only person charged with the

burden and responsibility of hearing the witnesses and making

findings of facts.” Id. at 744. “The fact-finding arbiter is usually in

a better position than the reviewing body to judge the ability,

experience and reputation of the various [] witnesses who appear

personally before him and to determine the weight which should

be given their testimony.” Id. at 745.

Under our deferential appellate review, then, where the JCC

has made “administrative findings” based at least in part on live

testimony, we do not consider the evidence anew. Instead, we make

a legal assessment of whether someone reasonably could reach the

conclusion the JCC did about a certain fact when faced with the

evidence submitted. “The general rule is that administrative

findings, in order to be upheld by the courts, must be supported by

substantial evidence,” meaning “there must be evidence which

supports a substantial basis of fact from which the fact in issue can

be reasonably inferred.” Laney v. Bd. of Pub. Instruction for

Orange Cnty., 15 So. 2d 748, 753 (Fla. 1943); see also De Groot v.

Sheffield, 95 So. 2d 912, 916 (Fla. 1957) (explaining that, in the

context of an administrative proceeding, “evidence relied upon to

sustain the ultimate finding should be sufficiently relevant and

material that a reasonable mind would accept it as adequate to

support the conclusion reached”); cf. Nelson v. State ex rel. Quigg,

23 So. 2d 136, 136 (Fla. 1945) (“We have held, and it seems to be

an almost universal rule, that the findings of fact made by an

administrative board, bureau, or commission, in compliance with

law, will not be disturbed on appeal if such findings are sustained

by substantial evidence.”); Adams v. Wagner, 129 So. 2d 129, 131

(Fla. 1961) (same). We look only at whether there was such

evidence before the JCC “in character, weight, or amount, as will

legally justify the judicial or official action demanded.” Tibbs v.

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State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d sub nom. Tibbs v.

Florida, 457 U.S. 31 (1982).

In other words, we do not re-weigh the evidence; that is a more

subjective task reserved entirely to the fact-finder. Id.; see Catron

Beverages, Inc. v. Maynard, 395 So. 2d 261, 262 n.1 (Fla. 1st DCA

1981) (“Perhaps no principle of appellate review is more

universally followed than that which proscribes an appellate court

from substituting its judgment for that of the trier of fact on factual

issues supported by competent, substantial evidence.”). Rather, we

will affirm a JCC’s findings of fact when they “are supported by

competent, substantial evidence even though, had we been the

trier of fact, we might have reached an opposite conclusion.”

Heifetz, 475 So. 2d at 1281–82; cf. Swanigan v. Dobbs House, 442

So. 2d 1026, 1027 (Fla. 1st DCA 1983) (explaining that even when

there is evidence in the record that supports both parties’ positions

as to the facts, and the “case could have been decided either way,

depending on the testimony and evidence accepted and believed by

the” JCC, we “do not retry the claim at the appellate level and

substitute our judgment for that of the [JCC] on factual issues

supported by competent, substantial evidence, and appeals asking

us to do so are frivolous”); see also Howard v. Green's Tractor Co.,

290 So. 2d 46, 48 (Fla. 1973) (observing the contradictions in

evidence and that “the conflict could have been resolved by” the

JCC “in a manner opposite from that in which he resolved it” but

that the role of an appellate court is not “to re-weigh the evidence

to see if we agree with the particular manner in which such

conflicts were resolved”).

Similarly, on appellate review, we do not consider “whether

the record contains evidence which could be interpreted to support

the arguments rejected by the JCC.” Frederick v. United Airlines,

688 So. 2d 412, 414 (Fla. 1st DCA 1997); see Swanigan, 442 So. 2d

at 1027 (“We do not review whether there was competent,

substantial evidence to support the claim disallowed by the [JCC];

we only review whether the record contains competent, substantial

evidence to support the [JCC’s] order.); Mercy Hosp. v. Holmes, 679

So. 2d 860, 860 (Fla. 1st DCA 1996) (“Once again we remind

counsel of the basic premise that the standard of review in worker’s

compensation cases is whether competent substantial evidence

supports the decision below, not whether it is possible to recite

4

contradictory record evidence which supported the arguments

rejected below.”).

II

Now we get to the role of Blake in a PTD analysis. Gulf

Management’s arguments in part treat Blake as setting out a rigid,

categorical methodology for establishing PTD—as if it sets out

three separate and independent ways for doing so, each with its

own elements that must be strictly adhered to. To be clear, though,

it is section 440.15(1)(b), not Blake, that governs how an employee

can establish entitlement to PTD benefits. Under that paragraph,

unless the employee has suffered one or more of the enumerated

injuries, he or she 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.”

§ 440.15(1)(b), Fla. Stat. (2009). 1 This is a fact question that must

be resolved by the JCC based on the evidence presented, as we just

discussed above.

The statute does not set out any formulaic test to govern the

PTD determination, other than what appears in the text itself.

Blake is not to the contrary. Instead, it catalogs the different forms

of proof that have been accepted as competent, substantial

1 The Legislature enacted this provision in 2003. See ch. 2003-

412, § 18, 58–59, Laws of Fla. Between 1993 and the 2003

enactment, only catastrophic injuries qualified for PTD. See ch. 93-

415, § 20, at 118–19, Laws of Fla. Before that, going back to 1979,

a claimant could not receive PTD compensation if he or she “is

engaged in, or is physically capable of engaging in, gainful

employment.” Ch. 79-40, § 10, at 228, Laws of Fla. (amending

section 440.15(1)(b), Florida Statutes). The claimant had to prove

“that he or she is not able uninterruptedly to do even light work

due to physical limitation.” Id. In 1990, the Legislature added a

requirement that the work be available within one hundred miles

of the claimant’s residence. See ch. 90-201, § 20, at 934, Laws of

Fla. Of course, with the current law, that radius is fifty miles. At

all events, before 1979, unless the claimant suffered a specified

injury, PTD simply would be “determined in accordance with the

facts.” § 440.15(1)(b), Fla. Stat. (1977).

5

evidence supporting a JCC’s determination of PTD. These

categories of acceptable proof, though, are not mutually exclusive.

How could they be? The statutory text anticipates that the

claimant is going to have to prove the following: that he cannot

work at least in a sedentary job within fifty miles of his residence

and that his inability to work is tied to his limitation. The

assessment necessarily will be—and has been—a flexible one.

All Blake did was bring forward this court’s previously

cataloguing of the flexible approach allowed to JCCs as to the

evidence on which they could rely to determine whether PTD had

been proven under the statute. See Blake, 43 So. 3d at 883 (looking

to Com. Carrier Corp. v. LaPointe, 723 So. 2d 912, 916–17 (Fla. 1st

DCA 1999), as “instructive” because of the similarities between the

pre-1994 version of the statute and the current version, and

quoting that decision’s “three ways to prove entitlement to PTD

benefits”). In applying the pre-1994 version of section 440.15, this

court observed the following:

The cases recognize three ways to prove entitlement to

permanent total disability benefits on account of

industrial accidents occurring before January 1, 1994:(1)

evidence of permanent medical incapacity to perform

even light work uninterruptedly; (2) evidence of

permanent work-related physical restrictions coupled

with an exhaustive but unsuccessful job search; or (3)

evidence of permanent work-related physical restrictions

that, while not alone totally disabling, do preclude

performing light work uninterruptedly, when combined

with vocational factors.

LaPointe, 723 So. 2d at 916–17 (Fla. 1st DCA 1999) (citing

Herrera v. Hojo Inn Maingate, 680 So. 2d 439, 440–41 (Fla. 1st

DCA 1996), and Wal–Mart Stores, Inc. v. Liggon, 668 So. 2d

259 (Fla. 1st DCA 1996)).

Herrera before that had merely noted that PTD could “be

proven by medical evidence that a claimant is unable to do light

work uninterruptedly due to physical limitations,” but even if

there were not those full restrictions, “evidence of a lengthy yet

unsuccessful job search” could suffice. Id., 680 So. 2d at 440

(citations omitted). The court added that a claimant could prove

6

entitlement to PTD compensation through “a combination of

medical proof of a substantial permanent impairment and

vocational evidence that a claimant is unemployable.” Id.

(citations omitted). This recitation, in turn, was just an overview

of the flexible evidentiary approach that already had developed

over time under the pre-1993 statute (again, the text of which is

similar to the current statute).

In fact, this court early on rejected a rigid requirement that

there be medical restrictions against even light work to prove PTD:

We do not read the terms of the statute to limit

permanent total disability compensation to those

claimants whose doctors impose medical restrictions

against “light work.” Such a construction would collide

with the basic long-standing statutory definition of

disability: an incapacity to earn to which a compensable

injury contributes. It would also collide with the terms of

the 1979 amended provision for permanent total

disability above quoted, which restricts such

compensation when claimant is “physically capable of ...

gainful employment.” (e.s.) The amended language does

clearly emphasize the requirement that such disability

shall be causally related not only to the compensable

accident and injury but also to the resulting physical

limitation.

H.S. Camp & Sons v. Flynn, 450 So. 2d 577, 580 (Fla. 1st DCA

1984). Some years later, the court recognized the flexibility set out

in Flynn by explaining that proof of the claimant’s engagement in

“a lengthy, exhaustive job search”—to no avail—could serve as an

evidentiary substitute for medical evidence that the claimant. U.S.

Foundry & Mfg. Co. v. Serpa, 564 So. 2d 559, 561 (Fla. 1st DCA

1990). “Where there is no medical evidence that the claimant is

unable to work, she is required to make a conscientious effort to

return to work before she can establish that she is in fact unable

to work.” Id.

This flexible, holistic approach to PTD broadened further in

this court’s assessment in Carter v. City of Venice, 584 So. 2d 577

(Fla. 1st DCA 1991):

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[T]he claimant consistently attempted to find suitable

employment within his physical limitations, but met with

no success. Moreover, the job search evidence was

bolstered by the above described uncontradicted

testimony of the vocational counselor and the

rehabilitation nurse, coupled with the claimant's

unsuccessful efforts to return to work for the City of

Venice, the subject employer. Given these factors,

combined with the obvious difficulties which confront a

functionally illiterate 54–year–old man seeking to secure

a light, sedentary position, it is clear that claimant’s job

search satisfied the standard articulated in Serpa.

Id. at 578.

Around the same time, this court rejected as too inflexible

even the requirement that there be proof of “a lengthy and

exhaustive work search” in the absence of evidence of total medical

restrictions. Pan Am. Bank v. Glinski, 584 So. 2d 52, 53 (Fla. 1st

DCA 1991). This argument too “misconceive[d] the nature of the

proof required to establish the essential statutory elements of that

award.” Id. According to the court, where “the medical testimony

established that claimant was suffering from a substantial

permanent impairment due to the injury that severely restricted

her ability to engage in physical activities,” a vocational expert’s

opinion as to the claimant’s employability in the job

market while taking into account her physical

limitations, including those imposed by [her physician],

was competent substantial evidence sufficient to support

a finding that claimant was totally disabled from earning

the wages she was receiving at the time of her injury.

Id. The court noted that “[t]here simply is no legal requirement

that claimant is limited to either presenting medical testimony

that she cannot return to work or performing an exhaustive work

search before qualifying for permanent total disability benefits.”

Id. at 53–54 (first emphasis supplied). “The combination of the

medical proof presented here coupled with the other evidence

received by the judge was legally sufficient to support the award

in this case.” Id. at 54.

8

The Glinski panel indeed acknowledged that this approach

followed on the flexible analysis taken by a prior panel, in Bill’s

Equip. & Rentals v. Teel, 498 So. 2d 536, 537 (Fla. 1st DCA 1986).

The former panel noted that “[w]hile there was no specific medical

evidence of claimant’s total inability to work, the physical

restrictions placed on his activities had the effect of eliminating all

types of employment within claimant’s capacity and for which he

would be qualified.” Id. The court explained its disposition as

follows:

Claimant is hampered by his limited schooling and

advanced age, and has no job skills which do not involve

repetitive twisting, bending, and lifting more than ten

pounds. The record reveals that claimant sought

employment commensurate with his work experience and

job skills, while the employer made no effort to obtain

employment for claimant. Based on these facts, the

deputy commissioner did not err in excusing claimant’s

failure to more actively seek employment. Where an effort

to find employment would be a futile and useless gesture,

the deputy may excuse claimant from the requirement of

a work search as a predicate for disability benefits.

Id. (emphasis supplied).

As we close this part, we note the flexibility given to JCCs

under section 440.15(1), as summarized in Liggon, the other

decision cited by LaPointe: “In assessing entitlement to PTD

benefits, the court may consider factors such as a claimant’s actual

physical impairment, work history, education and training, ability

to do and obtain other work, and age.” Liggon, 668 So. 2d at 264

(quoting Shaw v. Publix Supermarkets, Inc., 609 So. 2d 683, 685

(Fla. 1st DCA 1992), which also took a holistic approach to the

evidence in assessing the sufficiency of proof in support of PTD).

The enumeration of “three ways” (in Blake or LaPointe), then,

should be treated as guidelines for what a JCC may consider to be

sufficient proof to demonstrate PTD under section 440.15(1)(b).

When determining a PTD claim, the JCC must consider the overall

picture painted by the evidence presented. He may weigh the

evidence regarding the employee’s efforts at conducting a job

search, together with evidence of his injury and disability plus

9

testimony from a vocational expert, and reach a conclusion of

whether the employee has established what section 440.15(1)(b)

requires.

Our overall point here is that the categories of proof identified

in Blake for PTD claims should not be read as being restrictive.

They are not to operate as separate theories of “recovery,” so to

speak, with each designated theory carrying its own legal elements

that must be proven to prevail on a PTD claim. We reject the

appellant’s apparent effort to treat the categories restated in Blake

in this way—which would inappropriately transform these

guidelines into extra-statutory elements of proof that must be

correctly applied as if they were themselves the law.

III

With all of this in mind, we look at whether there was

competent, substantial evidence to support the JCC’s factual

findings and his determination that Wall established he qualified

for PTD benefits. We note initially that there were several live

witnesses, including Wall and both his and Gulf Management’s

vocational experts. The JCC, then, was in the best position to

observe the witnesses and assess the credibility of their testimony.

As we said at the top, we cannot touch these assessments on

appeal.

The JCC’s findings were supported by the following evidence.

Wall, a former service consultant at Lexus of Tampa Bay, suffered

a compensable work-related injury on March 18, 2009, when he

sustained injuries to his head, right arm, and left ankle. Following

the accident, Wall received temporary total disability (“TTD”)

benefits while recovering from surgery on his right hand. He was

released to work with restrictions of lifting no more than twenty-

five pounds and no climbing in September 2010 and returned to

Gulf Management, which was doing business as Lexus of Tampa

Bay. At this time, he was placed at maximum medical

improvement (“MMI”) with a fifteen percent impairment rating.

Wall continued with Lexus of Tampa Bay until July 2016,

when he was terminated for attempting to direct customers to

services off-site. After his termination, Wall worked a series of jobs

in the Tampa Bay area. He worked at Gordon Chevrolet from

10

September 2016 until March 2017, Palm Harbor Chevrolet from

July 2018 to September 2018, and Goody’s Fleet Solutions from

September 2018 until November 2018, when he was terminated

following a probationary period. He also ran his own concierge

services business from August 2016 until July 2018. Wall has not

held employment since leaving Goody’s Fleet Solutions in 2018.

Due to worsening symptoms from the injury, Wall underwent

surgery on his right hand in January 2020. He was placed at MMI

on April 20, 2020, with permanent restrictions of lifting no more

than 4 pounds with his right arm. No restrictions were placed on

his left hand.

Wall has held four different jobs, including self-employment,

since his termination from Lexus of Tampa Bay. During these

periods of employment, there were also substantial periods of

unemployment. Between May 2017 and August 2017, Wall applied

for five jobs. In 2019, he applied for one job, at Gator Ford in

Seffner. In 2020, Wall did not apply for any jobs. Over the course

of four years, Wall applied for a total of six jobs, the majority

shortly after his termination. While no records were kept of his job

searches, Wall stated he also searched Indeed.com and

Monster.com for employment within his field and claimed to have

made between 50 and 100 contacts. According to Wall’s testimony,

he searched for jobs within his previous field of employment,

relating to car maintenance and sales. His searches were made

without consideration for the types of job he could still perform

within his restrictions.

The JCC conceded that Wall’s job searches were “on the low

side.” Yet, the JCC concluded that based on Wall’s subsequent

employment after termination from Lexus of Tampa Bay,

motivation to find work, and good faith attempt to continue

looking, he had satisfied the requirements of an exhaustive job

search. The JCC admitted that the number of applications was on

the “low side” and “out of the 52 months that have transpired since

his termination in July 2016, there have been approximately 38

months during which claimant was unemployed. This averages out

to 1.3 to 2.6 contacts per month.” Based on Wall’s search history

and scattered employment since termination, the JCC found the

number of contacts to be “reasonable and sufficient.”

11

The JCC also accepted the testimony of Wall’s vocational

expert, Rebecca Balter (who testified in person) over that of Gulf

Management’s expert, John Roberts (who also testified in person).

The JCC found Balter’s opinion regarding his “employability is

both more realistic and more objective,” and relied on the “caution

and limitations” of Wall’s doctors “as to type, capacity and volume

especially as it pertains to writing and typing activities.” She had

considered Wall’s restrictions and limitations and conducted a

transferable skills analysis. This led her to conclude that due to

the accommodations that would have to be made and his limitation

in the use of his right hand for writing or computer operation for

any extended period, he is unable to compete successfully for work

in the open job market in his area.

Notably, Balter considered Wall’s online job searches and the

fact that Wall previously had secured employment three different

times after his termination from Lexus of Tampa Bay, all in the

automotive field. According to Balter, though, the type of work that

Wall performed in these positions fell outside of his current

medical restrictions, because the positions required repetitive and

frequent movements and regular typing and writing. Balter

accepted the restrictions of Wall’s doctor to low-capacity, low-

volume work, including a prohibition of lifting more than four

pounds. These restrictions, Balter believed, resulted in his

inability to engage in even sedentary employment. When asked

about potential re-training options, Balter responded that she did

not see that option being successful because those positions would

require the same accommodations Wall was unlikely to receive in

his current field. In addition, Balter noted that in trying to secure

employment, Wall would face difficulties relating to his recent

absence from the workforce, expired work-related certifications,

and inability to have procured more than three jobs in his field.

There is sufficient evidence in the record to support the JCC’s

determination. The JCC considered all of the evidence together

and specified in his compensation order how he weighed and

resolved conflicting evidence, where it existed. We are not here to

second-guess this. Of course, the JCC, as the trier of fact with live

witnesses before him, was entitled to accept Balter’s opinion

testimony over Roberts’s testimony. The JCC, in fact, explained

how he made that call. As the supreme court has explained:

12

The fact-finding arbiter is usually in a better position

than the reviewing body to judge the ability, experience

and reputation of the various so-called expert witnesses

who appear personally before him and to determine the

weight which should be given their testimony. One doctor

may have a long list of degrees behind his name, while

another has but few, However, the latter might, by his

demeanor on the witness stand and by his freedom and

clarity of expression, disclose a familiarity with the

subject under discussion which far exceeds that of the

ostensibly better educated theorist.

U.S. Cas. Co., 55 So. 2d at 745 (misspelling corrected).

The JCC also was candid about the weakness of the job-search

evidence, characterizing the intensity of the search as “on the low

side.” It is equally clear to us that even though the JCC tried to

keep the job-search and the vocational analyses

compartmentalized, the JCC ultimately considered the weaker job-

search testimony from Wall with the explanation given by Balter

along with her assessment of Wall vocationally. See GCC

Beverages v. Simmons, 571 So. 2d 59, 60 (Fla. 1st DCA 1990)

(explaining that nothing “establishes any absolute number of

minimum or average monthly contacts as a threshold requirement

for an adequate work search” and that this court has “cautioned

against such a mechanical approach, emphasizing instead that the

adequacy of a work search is a factual issue which is dependent

upon the totality of circumstances, including quality and context

as well as number of job contacts, in each case”).

We may have reached a different conclusion, as the trier of

fact, about whether, under the circumstances, Wall’s job search

was exhaustive and unsuccessful. There, however, was enough

substantial evidence submitted to the JCC about the overall

picture and circumstances that Wall was facing—including

Balter’s testimony—to support the JCC’s conclusion, even if the

conclusion that Gulf Management urges also finds support in the

evidence.

AFFIRMED.

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M.K. THOMAS and NORDBY, JJ., concur. 2

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Tiffany Hawks, MKRS Law, Coral Gables, for Appellants.

Bradley G. Smith and Nicolette E. Tsambis, Smith, Feddeler &

Smith, Lakeland, for Appellee.

2 Judges M.K. Thomas and Nordby substituted for Judges

Makar and Jay, who were recommissioned as judges of the Fifth

District Court of Appeal. Judges Thomas and Nordby have viewed

the digital recording of oral argument.

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