THE AUSTIN COMPANY AND GENERAL ACCIDENT GROUP, APPELLANTS,
v.
PAUL LINDENBERGER, APPELLEE
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In this workers' compensation appeal, the Florida District Court of Appeal reversed a deputy commissioner's order modifying a claimant's permanent partial disability rating from 12% to 25% and ordering additional remedial treatment. The court found insufficient evidence of changed physical condition, inadequate job search efforts, and a procedural violation because the remedial treatment claim was never properly raised by the claimant.
The court reversed the deputy commissioner's order on all three points, finding: (1) insufficient evidence to establish a change in the claimant's condition to support the increased rating; (2) insufficient evidence of adequate job search efforts to support the increased wage earning capacity loss; and (3) a due process violation because the deputy ruled on remedial treatment benefits that were never properly claimed or raised by the claimant.
[1] A claimant's own testimony regarding increased pain and inability to perform strenuous work, standing alone, is insufficient to establish a change in condition for the pu…
[2] A deputy commissioner errs by awarding remedial treatment benefits when no claim for such benefits was made by the claimant and the issue was not framed by the parties.
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Join FLexlaw to unlock all legal intelligence“The testimony offered at the hearing as to changed condition and loss of wage earning capacity is at best, skeletal. The one physician offered no testimony as to observed symptoms or objective facts.”
Establishes the insufficiency of evidence supporting the claimed change in physical condition and wage earning capacity loss
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant Lindenberger sustained a compensable lower back injury on May 18, 1976, and received workers' compensation benefits through August 9, 1978. I…
The full statement of facts, procedural history, and disposition for this case are member content.
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WIGGINTON, Judge.
Claimant sustained a compensable injury to his lower back on May 18,1976, for which he was awarded compensation benefits. The compensation was paid through August 9, 1978. In September, 1978, at claimant’s request, the employer/carrier (E/C) authorized an evaluation of claimant’s physical condition. Claimant thereafter received treatment from two physicians, and, on May 5, 1980, filed a Petition for Modification pursuant to Section 440.28, Florida Statutes (1979). By order dated April 20, 1981, the deputy commissioner ruled that claimant had suffered an increase in his “permanent and partial loss of wage earning capacity” from 12% to 25%. He therefore ordered the E/C to pay increased compensation benefits and to furnish “such remedial treatment, care and attendance as the nature of the injury or the process of recovery may require.”
On appeal, the E/C challenged the deputy’s order on three points. We agree with the E/C and reverse as to all three.
First, the E/C contend that the deputy’s order modifying the February, 1978, order is not based on competent substantial evidence. Our review of the record substantiates that contention. The testimony offered at the hearing as to changed condition and loss of wage earning capacity is at best, skeletal. The one physician offered no testimony as to observed symptoms or objective facts. Oglesby v. Southern Bell Telephone and Telegraph Company, 897 So. 2d 291 (Fla.1981). The other physician testified that there had been no change in condition. Claimant’s own testimony, as to increase in intensity of pain and inability to do hard work, standing alone, is insufficient to establish change in condition. Mahler v. Lauderdale Lakes National Bank, 322 So. 2d 507 (Fla.1975); Cheathem v. Fruit Bowl, Inc., 184 So. 2d 171 (Fla.1966).
Second, the E/C argue that there is insufficient evidence on which to predicate a finding of increased wage earning capacity loss from 12% to 25%. We agree. The record reveals that the E/C sufficiently rebutted claimant’s alleged job search. See generally, Suave Shoe Corporation v. Suarez, 396 So. 2d 777 (Fla. 1st DCA 1981) and cases cited therein.
Finally, E/C complain that the deputy erred in ordering that appellants furnish claimant remedial treatment, care and attendance when no corresponding claim to those benefits was made by claimant. This court has recognized that “due process problems arise when the deputy commissioner undertakes to rule on issues not framed by the parties.” Farm Stores v. Dyrda, 384 So. 2d 269 (Fla. 1st DCA 1980); Central Oil Co. v. Campen, 390 So. 2d 191 (Fla. 1st DCA 1980). To prevent surprise and prejudice, Section 440.19(2)(d) requires any claim for benefits filed with the division be specific as to the particular benefits being claimed.
In the instant case, claimant did not file a claim for remedial attention pursuant to Section 440.19(2)(b). His Petition for Modification did not make reference to any request for remedial attention, nor did the Notice of Hearing. Neither was any claim for remedial attention made at the hearing. Consequently, the deputy ruled on an issue which was neither raised nor anticipated by the parties herein. Thus, the issue not being framed by the parties and the record being otherwise silent, we agree that there was a total lack of notice and the award of remedial attention benefits was incorrect. Campen, Id. at 192; See also Lawton v. Florida Steel Corporation, 403 So. 2d 628 (Fla. 1st DCA 1981); and Albertson's Southco v. Williams, 402 So. 2d 1342 (Fla. 1st DCA 1981).
Since there is no evidence of a change in claimant’s condition and no evidence that he conducted an adequate work search, claimant has failed to demonstrate a disability in excess of the rating of 12% permanent partial loss of wage earning capacity upon which the February, 1978, order was based. Accordingly, the order of the deputy is reversed.
Because of our disposition of the points raised on appeal, we need not rule on the issue raised on the cross-appeal.
ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Fla. Power Corp. v. Hamilton, 617 So. 2d 333 (Fla. 1st DCA 1993)…rily expand the scope of the hearing. Due process concerns preclude a ruling on matters which have not been placed at issue, as the parties are entitled to notice so that they may fairly present their case. See generally Austin Co. v. Lindenberger, 410 So. 2d 601 (Fla. 1st DCA 1982); Albertson’s Southco v. Williams, 402 So. 2d 1342 (Fla. 1st DCA 1981); see also Kaplan Industr. v. Rowlett, 565 So. 2d 404 (Fla. 1st DCA 1990). These cases indicate that it is thus usually necessary that a claim identify the spec…
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Sewell Plastics, Inc. v. Jackson, 418 So. 2d 442 (Fla. 1st DCA 1982)…for benefits, the notice of hearing, or on the pre-trial stipulation sheet. At the start of the hearing, the deputy announced the issues which had been noticed for hearing; additional remedial care was not among them. See Austin Co. v. Lindenberger, 410 So. 2d 601 (Fla. 1st DCA 1982); Goodyear Service Store v. Rockey, 382 So. 2d 816, 817 (Fla. 1st DCA 1980). Although upon questioning by her attorney, and over objection of counsel for E/C, claimant testified that her hand still hurt and she would like to retur…
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Robinson v. JDM Country Club & Corporate Grp. Serv., 455 So. 2d 1077 (Fla. 1st DCA 1984)…ns, 437 So. 2d 721, 723 (Fla. 1st DCA 1983): "As this court recently held, the claimant’s own testimony as to increased pain and inability to do work ‘standing alone’, is insufficient to establish a change in condition." Austin Co. v. Lindenberger, 410 So. 2d 601, 602 (Fla. 1st DCA 1982), citing Mahler v. Lauderdale Lakes National Bank, 322 So. 2d 507 (Fla. 1975), and Cheathem v. Fruit Bowl, Inc., 184 So. 2d 171 (Fla.1966).…
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
- Mahler v. Lauderdale Lakes Nat'l Bank, 322 So. 2d 507 (Fla. 1975)
- Farm Stores & Emp'rs Ins. of Wausau v. Dyrda, 384 So. 2d 269 (Fla. 1st DCA 1980)
- Louella Cheathem v. The Fruit Bowl, Inc., 184 So. 2d 171 (Fla. 1966)
- Cent. OIL Co. & Peninsular Fire Ins. Co. v. Campen, 390 So. 2d 191 (Fla. 1st DCA 1980)
- Albertson's Southco & Diversified Risk Mgmt. Servs. v. Williams, 402 So. 2d 1342 (Fla. 1st DCA 1981)
- Suave Shoe Corp. & Emp'rs Serv. Corp. v. Suarez, 396 So. 2d 777 (Fla. 1st DCA 1981)
- Lawton v. Fla. Steel Corp. & Hartford Ins. Co., 403 So. 2d 628 (Fla. 1st DCA 1981)