MCDONNELL DOUGLAS AND INDUSTRIAL INDEMNITY COMPANY, APPELLANTS,
v.
LUCY HOLLIDAY, APPELLEE
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McDonnell Douglas and its workers' compensation carrier appealed a deputy commissioner's award of temporary total disability benefits to an injured worker. The court affirmed the admission of expert testimony but reversed the disability award because the claimant was capable of performing work and earning income, remanding for calculation of appropriate temporary partial disability benefits.
The court affirmed the admission of Dr. Priu's testimony, finding the deputy commissioner did not abuse discretion in determining the physician was consulted for treatment rather than examination only. The court reversed the temporary total disability award because it is improper as a matter of law to award such benefits to a claimant capable of performing work when the claimant acknowledged earning income from babysitting.
[1] A deputy commissioner's determination that a physician was consulted for treatment, rather than solely for examination or to qualify them to testify, is supported by comp…
[2] An award of temporary total disability benefits is improper when a claimant is capable of performing some work and is earning income from such work.
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Join FLexlaw to unlock all legal intelligence“It is inappropriate as a matter of law to award temporary total disability benefits to a claimant who is capable of performing some work.”
Establishes the legal principle that temporary total disability cannot be awarded when a claimant can perform any work
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Join FLexlaw to unlock all legal intelligenceClaimant injured worker testified she was meeting her financial needs through assistance from her father and by babysitting neighborhood children in h…
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PER CURIAM.
Employer/carrier appeal a workers’ compensation order which found claimant to be temporarily totally disabled. We affirm in part and reverse in part.
The first point raised by appellants is whether the deputy commissioner erred in denying the employer/carrier’s motion to disqualify the testimony of Dr. Priu on the ground he was an examining physician only.
We find the record contains competent substantial evidence to support the deputy commissioner’s finding that Dr. Priu was consulted for the purpose of treatment, not merely for an examination or for the purpose of qualifying the physician to testify. It is the duty of the trial court to determine the qualifications of an expert witness on the subject matter on which he testifies and the court’s judgment will not be disturbed on appeal unless a clear abuse of discretion is shown. Vitale Fireworks Manufacturing Company, Inc. v. Marini, 314 So. 2d 176 (Fla. 1st DCA 1975). No such showing has been made in the present case, and the order is accordingly affirmed as to this point.
The second point raised by appellants is whether the deputy commissioner erred in finding the claimant temporarily totally disabled.
At the hearing before the deputy commissioner claimant testified that she had been meeting her financial needs with the ássistance of her father and by caring for some neighborhood children in her home after school. Claimant testified she received approximately $275 a month from these two sources. The deputy commissioner made no reference to this income in his order finding claimant temporarily totally disabled. It is inappropriate as a matter of law to award temporary total disability benefits to a claimant who is capable of performing some work. La Posada Convalescent Home, Inc. v. Hunter, 8 FCR 222 (IRC Order 2-2431 August 22, 1973), cert. denied, 294 So. 2d 653 (Fla.1974).
The award of temporary total disability benefits in the present case was improper as claimant acknowledged she was earning some income babysitting in her home.
We note that claimant is now deceased due to an unrelated medical problem. However, Section 440.25(5), Florida Statutes provides that an award of compensation for disability may be made after the death of an injured employee. Accordingly, the cause is reversed and remanded for determination of the temporary partial disability benefits which claimant would have been entitled to.
ERVIN, SHAW and WENTWORTH, JJ., concur.
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Four Quarters Habitat, Inc. v. Miller, 405 So. 2d 475 (Fla. 1st DCA 1981)…s Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981); Tallahassee Coca-Cola Bottling Company v. Parramore, 395 So. 2d 275 (Fla.1st DCA 1981); Stewart-Decatur Security v. Kropp, 396 So. 2d 256 (Fla.lst DCA 1981); McDonnell Douglas v. Holliday, 397 So. 2d 366 (Fla. 1st DCA 1981). In Walter Glades Condominium v. Morris, supra, we reversed an order awarding TTD benefits on a record showing that claimant, during the period of asserted disability, made one effort to return to work, and was told by her employ…
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Ricardo O. Gershanik, M.D. v. Dep't of Prof'l Reg., 458 So. 2d 302 (Fla. 3d DCA 1984)…. Hubert Aronson should be rejected because it was not competent. We disagree. On appeal a trial court’s determination of the competency of expert testimony will not be disturbed absent a clear abuse of discretion. See McDonnell Douglas v. Holliday, 397 So. 2d 366 (Fla. 1st DCA 1981). The sufficiency of the facts required to form an opinion is usually decided by the expert; any deficiency relates to the weight of the evidence rather than to its admissibility. H.K. Cory. v. Estate of Miller, 405 So. 2d 218 (Fl…
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H.G. Boddiford Painting Contractors, Inc. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983)…1981). We have consistently held that it is error to award TTD benefits to a claimant who is capable of obtaining and performing some type of work. See Blot-ney (claimant working full-time in non-sheltered employment); McDonnell Douglas v. Holliday, 397 So. 2d 366 (Fla. 1st DCA 1981) (claimant working as a baby sitter); Dixie County School Board v. Stinson, 393 So. 2d 661 (Fla. 1st DCA 1981) (claimant returned to work as a teacher); Burger King Corporation v. Stark, 401 So. 2d 1173 (Fla. 1st DCA 1981) (claima…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vitale Fireworks Mfg. Co., Inc. v. Emil Paul Marini and Rose Christine Marini, 314 So. 2d 176 (Fla. 1st DCA 1975)
- La Posada Convalescent Home, Inc. v. Rena Hunter & the Fla. Dep't of Commerce, 294 So. 2d 653 (Fla. 1974)
- Kaufman v. Markham, 294 So. 2d 653 (Fla. 1974)