GENERAL ELECTRIC COMPANY, AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY, APPELLANTS,
v.
DREW L. HOPKINS, APPELLEE

Fla. 1st DCA | 1982-03-22
No. AC-475
MILLS, J., concurs., WENTWORTH, J., concurs with written opinion.
411 So. 2d 292 Florida District Court of Appeal, First District (1982)

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Synopsis

In this workers' compensation appeal, the Florida District Court of Appeal affirmed an award of temporary total disability (TTD) benefits to an injured worker for the period September 18-October 2, 1980, and affirmed penalties, interest, and attorney's fees for late payment of TTD benefits from October 2-November 26, 1980, despite the employer/carrier's argument that the error in calculating penalties should require reversal.


Holding

The court affirmed the award of TTD benefits for September 18-October 2, 1980, finding claimant's testimony about the company doctor's refusal to allow him to work constituted competent substantial evidence of TTD status. While the court agreed that the deputy's award of penalties, interest, and attorney's fees on the entire amount for the October 2-November 26 period was erroneous (since at least a portion was timely paid), the court affirmed based on the principle that such errors could and should have been corrected by timely application to the deputy before the order became final.


Headnotes

[1] A claimant's testimony regarding a company doctor's refusal to allow them to work, in the absence of a specific and timely objection, can constitute competent substantial…

[2] An employer's refusal to permit an employee to return to work until approved by a company doctor, even when the treating physician has released the employee, can support…

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Key Quotes

“in the absence of a specific and timely objection to claimant's testimony, we deem the claimant's testimony that the company doctor would not let him work to be competent substantial evidence that he was TTD after September 18, 1980.”

Establishes that credible, unrebutted testimony is sufficient to prove temporary total disability status

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Facts & Procedural History

Claimant suffered a compensable low back injury on December 6, 1977, and received intermittent TTD benefits thereafter. On September 18, 1980, his tre…

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred in awarding temporary total disability (TTD) benefits for the period from September 18, 1980 to October 2, 1980, and in awarding penalties and interest, and attorney’s fees thereon, for TTD benefits voluntarily but untimely paid for the period from October 2, 1980 to November 26, 1980. We affirm both awards.

Claimant suffered a compensable low back injury on December 6, 1977, and has received TTD benefits intermittently since that date. On September 18, 1980 claimant’s treating physician released him to return to work, whereupon claimant immediately reported to the employer. However, the company doctor was absent that day and the employer refused to permit claimant to return to work until his return had been approved by the company doctor. The claimant testified that during the evening of September 18, 1980 he suffered an exacerbation of his low back injury, and that when he reported to work on September 19 the company doctor would not allow him to resume his duties. Claimant was unable to obtain a return appointment with his treating physician until October 2, on which date the treating physician found him to be again disabled. Under these circumstances, and in the absence of a specific and timely objection to claimant’s testimony, we deem the claimant’s testimony that the company doctor would not let him work to be competent substantial evidence that he was TTD after September 18, 1980.

On November 26, 1980 the E/C accepted the claim for TTD benefits and voluntarily paid the benefits due for the period from October 2 to November 26. We agree with the E/C’s contention that at least a portion of the benefits due for this period was timely paid and that the deputy’s award of penalties, interest, and attorney’s fees on the entire amount was erroneous. However, this error could and should have been corrected by timely application to the deputy before the order became final. Accordingly, we deem the error inconsequential and affirm on the authority of and for the reasons expressed in Acosta Roofing Company v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981).

AFFIRMED.

MILLS, J., concurs.

WENTWORTH, J., concurs with written opinion.

Concurrence
WENTWORTH, Judge,

WENTWORTH, Judge,

concurring.

In addition to the circumstances recited by the majority, I would affirm because of the well established sufficiency of lay testimony, including claimant’s, to prove temporary medical incapacity of a simple nature subject to the usual standards of logic, reason, and credibility, before or after a physician’s discharge or release for return to work.


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