JUDICIAL ADMINISTRATIVE COMMISSION, STATE OF FLORIDA, AND SOUTH CAROLINA INSURANCE COMPANY, APPELLANTS/CROSS-APPELLEES,
v.
MARLENE MARKS, APPELLEE, AND CIVIL DIVISION OF COUNTY COURTS, STATE OF FLORIDA, DIVISION OF RISK MANAGEMENT, AND CRAWFORD & COMPANY, APPELLEES/CROSS-APPELLANTS
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A workers' compensation case involving two industrial accidents of the same employee while the claimant was employed as a legal secretary. The court reversed the deputy commissioner's award of 25% permanent partial disability (exceeding the highest physician rating of 20%) and his assessment of penalties against both carriers for delayed payment of permanent disability benefits.
The court held that the deputy commissioner erred in awarding 25% permanent partial disability, which exceeded the highest physician rating of 20%. The court also held that penalties for delayed payment do not apply to permanent disability benefits, only to temporary disability payments.
[1] A deputy commissioner cannot award a disability rating greater than the highest rating given by any examining or treating physician, absent a stipulation.
[2] A physician's revised testimony regarding a disability rating supersedes their initial rating for the purpose of determining the maximum allowable award.
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Join FLexlaw to unlock all legal intelligence“No judge of industrial claims [now deputy commissioner] shall either make a finding of, or award compensation for, a disability for physical impairment that is greater than the greatest disability given the claimant by any examining or treating physician, except upon stipulation of the parties.”
Statutory limitation that prevented the deputy commissioner from awarding benefits exceeding the highest physician rating without party agreement.
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Join FLexlaw to unlock all legal intelligenceThe claimant is a 28-year-old woman who suffered two industrial accidents while employed as a legal secretary to a county court judge. South Carolina …
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PER CURIAM.
The claimant is a 28-year-old woman who suffered two industrial accidents while employed as a legal secretary to a county court judge. At the time of the first accident, South Carolina Insurance Company (South Carolina) was the carrier. At the time of the second accident, the State of Florida Division of Risk Management (Division) was the carrier. South Carolina appeals the deputy commissioner’s award of 25% permanent partial disability benefits to the claimant, his apportioning a higher percentage of the permanent partial disability against South Carolina, and his assessment of penalties. We find no merit in the Division’s cross-appeal nor in South Carolina’s second point on appeal; however, we reverse on the first and third issues presented on appeal.
Section 440.25(3)(b), Florida Statutes (1978), reads in pertinent part:
No judge of industrial claims [now deputy commissioner] shall either make a finding of, or award compensation for, a disability for physical impairment that is greater than the greatest disability given the claimant by any examining or treating physician, except upon stipulation of the parties.
We note that the physician who gave the claimant the highest rating, Dr. Rallen, initially testified as to a 25% permanent partial disability. However, upon a review of the evidence he changed his testimony and gave her a 20% rating. Therefore, the deputy commissioner erred, understandably, in finding a 25% permanent partial disability.
The deputy commissioner also erred in ordering both carriers to pay penalties. Section 440.20(5), Florida Statutes (1978), provides for a 20% penalty on compensation which is not timely paid unless a notice to controvert is filed. However, this statute providing for the assessment of a penalty for delay in payment relates only to temporary disability payments and has no application for permanent disability benefits. See Kuhle v. Kirk, 177 So. 2d 329 (Fla.1965); Massey v. Haynie, 180 So. 2d 331 (Fla.1965).
For the foregoing reasons, the order is reversed and remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
LARRY G. SMITH and McCORD, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.
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Orange Cnty. Bd. OF Cnty. Comm'rs & Gallagher Bassett Ins. Serv. v. Hanson, 400 So. 2d 1045 (Fla. 1st DCA 1981)…y arguable authority for a penalty award in this case, has been held not to apply to payments of permanent disability. Kuhl v. Kirk, 177 So. 2d 399 (Fla.1965); Massey v. Haynie, 180 So. 2d 331 (Fla.1965); Judicial Administrative Commission v. Marks, 394 So. 2d 211 (Fla. 1st DCA 1981). REVERSED AND REMANDED for further consideration consistent with this opinion. MILLS and SHAW, JJ., concur.…
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Nat'l Linen Serv. v. Stubblefield, 403 So. 2d 1147 (Fla. 1st DCA 1981)…here was no stipulation, so the Deputy was limited to the disability rating given by the psychiatrist. We reverse the 15% rating and remand to the Deputy to assign the 5% rating given by the psychiatrist. See Judicial Administration Comm’n v. Marks, 394 So. 2d 211 (Fla. 1st DCA 1981). Reversed and remanded. BOOTH, SHAW and WENTWORTH, JJ., concur.…
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Collier Cnty. Sch. Bd. v. Salter, 440 So. 2d 444 (Fla. 1st DCA 1983)…PER CURIAM. The award to the appellee of penalties on permanent total disability payments owed by the appellant is stricken from the deputy commissioner’s order of September 7, 1982. Judicial Administrative Commission v. Marks, 394 So. 2d 211 (Fla. 1st DCA 1981); Ruble v. Kirk, 177 So. 2d 329 (Fla.1965); Massey v. Haynie, 180 So. 2d 331 (Fla.1965). The remainder of the deputy commissioner’s order is affirmed. ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rubin v. Sanford, 180 So. 2d 331 (Fla. 1965)
- Kuhle v. Kirk, 177 So. 2d 329 (Fla. 1965)