ROBERT STONE, APPELLANT,
v.
A & G PLASTERING AND STATE AUTO MUTUAL INSURANCE COMPANY, APPELLEES
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The court held that the deputy commissioner erred in finding maximum medical improvement and in determining Stone's earning capacity without sufficient record support.
[1] A stipulation by parties that maximum medical improvement has not been reached cannot be disregarded by a deputy commissioner absent a showing of good cause for modificat…
[2] A deputy commissioner may not establish a date of maximum medical improvement contrary to a stipulation of the parties that such improvement has not yet been reached.
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Join FLexlaw to unlock all legal intelligenceStone, an injured construction worker, appealed a worker's compensation order denying temporary total disability, establishing maximum medical improve…
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McCORD, Judge.
Stone, a construction worker who was injured on the job, appeals a worker’s compensation order in which the deputy commissioner denied Stone’s claim for temporary total disability, established a date of maximum medical improvement, rejected a request for payment of past and future medical care by the treating physician and determined that temporary disability benefits should be discounted on the ground that Stone could earn $100 per week if only he had accepted, or would accept, employment.
We reverse the finding of MMI because at the final hearing the parties stipulated that maximum improvement had not been reached. The date of MMI was not at issue. See Lopez v. Par Mell Apartments, et al, IRC Order No. 2-3859 (July 12,1979); Principe v. Mt. Sinai Hospital, 156 So. 2d 385 (Fla. 1963). The evidence of maximum medical improvement was equivocal; the evidence and the stipulation were not “at variance in such a way as to show good cause for modification of the stipulation.” Delta Drilling Co., et al v. Wells, IRC Order No. 2-3708 (Feb. 22, 1979). Therefore, it was error for the deputy to find Stone had reached MMI prior to the date of the hearing at which the stipulation was reaffirmed.
We must also reverse the finding that Stone “would be able to earn $100.00 per week if he accepted, or had accepted, appropriate employment.” There is no record support to justify that figure, although the record contains evidence from which the deputy might conclude Stone is employable. Upon remand, the deputy may accept additional evidence on this point.
The deputy properly denied payment for medical care received by Stone after the carrier withdrew its authorization of the doctor and offered Stone a choice of other medical treatment. Carlton Arms of Winter Park, et al v. Polston, IRC Order No. 2-3725 (Feb. 28, 1979).
Accordingly, this cause is remanded to the deputy for further proceedings not inconsistent with this opinion.
SHIVERS, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.
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Stuart v. Jones, 413 So. 2d 819 (Fla. 1st DCA 1982)…ier. We reverse the deputy’s reservation of jurisdiction to determine the average weekly wage, because neither party presented good cause to modify their pretrial stipulation to an average weekly wage of $150. See Stone v. A & G Plastering, et al., 404 So. 2d 1183 (Fla. 1st DCA 1981). Finally, we reverse the deputy’s conclusion that the claimant has not reached maximum medical improvement as appellee confesses error. We remand so the deputy may determine the date of MMI, taking additional evidence, if necess…
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City Laundry & Linen Supply & Emp'rs Serv. Corp. v. Coster, 465 So. 2d 641 (Fla. 1st DCA 1985)…ember 1981 claim for benefits. But the pretrial stipulation, accepted and approved by the deputy, put the permanent disability claim in issue. Parties are bound by a pretrial stipulation absent good cause for modification. Stone v. A & G Plastering, 404 So. 2d 1183 (Fla. 1st DCA 1981). The issue was ripe for adjudication because the deputy found in the order here appealed that Coster had attained maximum medical improvement. Finally, the employer/carrier challenge the $5,000 attorney’s fee award. Citing Orang…
Authorities Cited
- Principe v. Mount Sinai Hosp., 156 So. 2d 385 (Fla. 1963)