
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, DIVISION OF RISK MANAGEMENT and Crawford and Company, Appellants, v. David MASSILLON and the Division of Workers’ Compensation, Appellees.
    No. AH-178.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Jerry V. Wilkey, Coral Gables, Thomas J. Maida, McConnaughhay & Roland, Tallahassee, for appellants.
    Jay M. Levy of Silver, Levy & Herschoff, Miami, for appellees.
   SHAW, Judge.

The employer/carrier appeal the deputy commissioner’s order finding the claimant to have a 70% permanent partial disability based on loss of wage earning capacity. The claimant cross appeals the partial disability award, arguing that the deputy erred in failing to award permanent total disability benefits. We agree with the claimant.

The deputy commissioner bases his determination that the claimant has sustained a 70% permanent partial disability of the body as a whole upon the following finding:

Considering my above-noted subsidiary findings of fact, including claimant’s age, education, work experience, physical impairment, limitations, lack of post-accident earnings or ability to obtain employment, impairment to compete in the open labor market and unsuccessful work search, it is my determination that the claimant has sustained a seventy (70%) percent permanent partial disability of the body as a whole based upon a loss of wage earning capacity. In arriving at same it should be noted that the claimant is not working at this time and in his current condition it would appear that he is unable to obtain employment in the open labor market. However, as ordered herein, I am requiring that the employer provide the claimant with treatment in the Jackson Memorial Hospital Pain Clinic in an attempt to alleviate and relieve some form of his unremitting and extensive pain. In arriving at the aforementioned loss of earning capacity, I have considered that there will be a reduction in the claimant’s pain level through this treatment, and that he will thus then be able to obtain some form of palliative parttime employment through which he will be able to earn some marginal sums.

The practical effect of such a finding is to reduce a permanent total award to 70% based on the speculation that at some future date there will be a reduction in the claimant’s pain level as a result of treatment rendered by the clinic. Having found that the claimant is unable to obtain employment in the open labor market in his current condition, the deputy cannot in the same breath modify that finding on the basis of some future event that may or may not occur. Such conjecture is not a proper basis for reducing a present award of benefits. Ramon Rivera v. Pumpernicks of Hallandale, IRC Order 2-3670, January 29, 1979. We therefore modify that portion of the judge’s order finding the claimant 70% permanently partially disabled and find him permanently totally disabled. If, as prophesied by the deputy commissioner, the claimant benefits from treatment at the clinic and his pain level is reduced to the point that he is able to obtain employment, the carrier is free to bring this change of condition to the deputy’s attention within the statutory period by way of a petition for modification. The remaining point on cross appeal is AFFIRMED, and the order, as modified, is AFFIRMED.

ERVIN, J., concurs.

ROBERT P. SMITH, C. J., dissents in part with opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting in part.

I would affirm the deputy’s order in its entirety. In my opinion the deputy applied chapter 440 principles consistently with the evidence taken as a whole and in a way responsive to the legitimate needs of this particular claimant. There was considerable medical evidence that claimant’s complaints of disabling pain were either exaggerated or, if wholly genuine, would respond to short term pain treatment that claimant had incentive to believe would be helpful. Thus the award of permanent partial disability benefits, based on a 70 percent loss of wage earning capacity, was designed both to verify claimant’s disability and to declare to him that he could and would respond to brief therapy and return to some gainful occupation. The overriding purpose of chapter 440 being precisely that, I know of no reason why this Court, reviewing the presumptively correct action of a deputy commissioner who was on the scene and sensitive to the unique circumstances of the claim, should quibble over such a detail as the deputy’s prospective assessment that a few sessions at the pain clinic would help both claimant’s back and his will.

What were the alternatives?

To find claimant still temporarily and totally disabled, and to prescribe the same treatment as remedial? That perhaps would have been consistent with a doctor’s testimony that claimant could be considered at maximum medical improvement only if he did not submit to recommended surgery, but such a finding would have offered claimant no inducement to respond to pain treatment and to strive for some working capacity without surgery. Indeed, the deputy obviously considered continued temporary benefits, which were claimed, a clear disincentive to recovery.

Should the deputy have found claimant 70 percent permanently disabled at the time of hearing, based on a permissible evaluation of his loss of wage earning capacity? Such a finding, accompanied by an order for the same palliative pain therapy, would have been verbally neater, but of the same effect as the deputy’s order.

How did this appeal, this cross-appeal, and this judicial labor advance the purposes of chapter 440? The carrier’s appeal, questioning the work search evidence and arguing the effect of medical evidence not accepted by the deputy, resulted in the carrier withholding for the period of this appeal, about eleven months, both the permanent disability payments and the pain treatment. The appeal also produced the cross-appeal, and we by sustaining it place claimant in a position of having little economic incentive to respond to pain treatment belatedly to be gotten. We now place upon the carrier the burden of showing that, through pain treatment and a renewed work search that claimant can make or not as he will, claimant’s wage earning capacity has improved by 30 percent. I rather expect the carrier will not bother to undertake that task.

I view the deputy’s order like so many orders that we similarly remodel, as an attempt to end the litigation with due regard to all competing interests and with reasonable deference to the categorical strictures encrusting chapter 440. The deputy’s acceptance of claimant’s disputed medical testimony rather than the carrier’s, his crediting of claimant’s disputed work search, and his assessment of 70 percent permanent disability at the end of palliative pain treatment, is rather like a sturdy three-legged stool. For a minor internal verbal inconsistency we have removed one leg. So the stool falls over, and claimant, deprived of the healing incentive intended by the deputy, is placed in a practically impregnable condition of compensated total disability. I think our labors here are neither worth the effort nor fulfilling of chapter 440.  