CITY PRODUCTS CORPORATION AND UNDERWRITERS' ADJUSTING COMPANY, APPELLANTS,
v.
ERNEST HARRIS, APPELLEE
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In this workers' compensation case, the appellate court reversed the deputy commissioner's finding that the employer/carrier was liable for attorney's fees under Florida Statute 440.34 for failing to timely accept the employee's permanent disability. The court held that the treating physician's November letter constituted only preliminary notice of a probable disability, while the December letter provided definitive notice, allowing the employer/carrier to timely accept the disability within 21 days of the formal notice.
The November letter was predicated on probability and did not constitute definitive notice of permanent disability; the December letter providing final confirmation of the permanent disability rating constituted the proper notice. Because the employer/carrier accepted the disability within 21 days of the December letter, it was entitled to avoid attorney's fees liability under section 440.34.
[1] A treating physician's letter stating a probability of permanent disability does not constitute sufficient notice to trigger a statutory obligation to accept the claimant…
[2] An employer/carrier is justified in waiting for a treating physician's final assessment of permanent disability before accepting the claimant as permanently disabled.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The November letter was predicated on a probability that appellee would suffer a permanent disability of 10 to 15 percent. Appellants were justified in waiting to hear from the treating physician in December before accepting appellee as permanently disabled.”
Establishes that preliminary, conditional medical opinions do not constitute notice sufficient to trigger the 21-day acceptance requirement for attorney's fees purposes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee Harris was injured in a workers' compensation matter. On November 28, 1978, the treating physician wrote to the employer/carrier indicating H…
The full statement of facts, procedural history, and disposition for this case are member content.
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McCORD, Judge.
Appellants, employer/carrier, appeal from the deputy commissioner’s finding that appellants are liable to appellee/claim-ant for attorney’s fees because appellants did not accept appellee as permanently disabled within 21 days after notice by letter from the treating physician. The deputy commissioner concluded that a November 28, 1978, letter from the treating physician to the employer/carrier constituted sufficient notice of permanent impairment, thereby imposing on employer/carrier at least a duty to inquire and investigate as to its liability for permanent disability at that point. The November letter from the treating physician informed employer/carrier that:
... I do not think that further orthopedic management at this time is necessary and I feel that we will continue to follow him at intervals as required ... He probably is able to return to a light duty type status ... He will probably be left with a residual permanent disability of 10 to 15 percent. He is scheduled to return for a follow-up visit in December and I will be happy to keep you advised of his continued progress at that time.
Employer/carrier accepted appellee as permanently totally disabled on January 9, 1979, within 21 days after receiving the treating physician’s letter of December 13, 1978, which read, in part, as follows:
Mr. Harris was seen in final consultation in my office on December 12, 1978. As noted in my previous letter, he was discharged from care at this time with a permanent disability of 10 to 15 percent of the body as a whole.
Appellants contend that the November letter did not constitute sufficient notice of permanent impairment but that such notice was received for the first time in the December letter. They assert that because they accepted the permanent disability rating within 21 days after receipt of the December letter, acceptance was timely and, therefore, appellee’s lawyer is not entitled to a fee pursuant to § 440.34, Florida Statutes (1977). We agree. The November letter was predicated on a probability that appellee would suffer a permanent disability of 10 to 15 percent. Appellants were justified in waiting to hear from the treating physician in December before accepting appellee as permanently disabled. Therefore, because appellants accepted the permanent disability rating within 21 days after receipt of proper notice of permanent disability, appellee’s lawyer is not entitled to a fee.
REVERSED.
MILLS, C. J., and THOMPSON, J., concur.