Ervin v. David Costa Enterprises, Inc. / Zenith

JCC Newman (Tallahassee) (Matt Bennett) (6-20-23)– Denied claims for TPD, penalties, interest, attorney’s fees and costs. On June 8, 2022, the claimant severely injured and lost the tip of her right thumb when the door of a restaurant safe slammed shut and caught her thumb. The claimant was taken by ambulance to the Southeast Medical Center in Dothan, Alabama, where she came under the care of Dr. Patrick Guin, a board-certified orthopedic surgeon. The claimant was diagnosed with a traumatic right thumb partial amputation with comminuted fracture of the distal phalanx. Dr. Guin urgently scheduled the claimant for a revision amputation of the right thumb. The claimant remained on an off-work status until her evaluation with Dr. Guin on July 6, 2022. A Patient Status Report dated July 6, 2022 states that the claimant “can return to work light duty with limited use of the right hand.”  The claimant continued to work for the Employer from July through December 2022. On December 12, 2022, the claimant sent a text message to her manager advising that she would not be returning to work until her hand was completely healed. The claimant then filed a PFB seeking indemnity benefits from December 11, 2022 to the present and continuing. The E/C denied the benefits as the claimant had voluntarily reduced her income/refused suitable employment. After hearing testimony from the clamant and the claimant’s manager, the JCC determined that the Employer offered the claimant a light-duty position that was within her physician-imposed work restrictions following her release to return to work after the accident. After working in that position for five months, the claimant advised the Employer that she would not be returning to work until her thumb injury had fully healed, a decision not justified by any medical evidence.  Click here to view Order