GILBARCO, INC. AND INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS,
v.
MARY LEROUX, APPELLEE
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In this workers' compensation appeal, the Florida District Court of Appeal reversed an order finding that an injured claimant had not reached maximum medical improvement (MMI) and was temporarily totally disabled. The court held that the deputy commissioner's MMI determination based solely on the claimant's subjective pain complaints, without supporting medical evidence, was not supported by competent substantial evidence.
The court reversed the order finding no MMI because it was not supported by competent substantial evidence. While a deputy commissioner may make determinations about observable medical conditions based on personal observations, the determination of MMI in this case required medical expertise and could not be based solely on subjective pain complaints in the absence of supporting medical evidence.
[1] A deputy commissioner's finding that a claimant has not reached maximum medical improvement is erroneous if not based on competent substantial medical evidence, even if t…
[2] A deputy commissioner's observations are insufficient to establish maximum medical improvement in cases not involving conditions observable by laymen.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“None of the medical evidence suggests that the claimant is not fully recovered and is not capable of resuming work.”
Establishes the factual basis undermining the deputy commissioner's MMI finding
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Join FLexlaw to unlock all legal intelligenceThe claimant slipped and fell in a compensable accident and received treatment from multiple orthopedic surgeons and specialists between 1976 and 1980…
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[*1032] MILLS, Judge.
The employer/carrier appeal an order finding that the claimant had not reached maximum medical improvement (MMI) and finding her temporarily totally disabled (TTD) through the date of the hearing and continuing. We reverse.
The claimant was injured in a compensable accident when she slipped and fell. Immediately after the fall she was treated, and on 19 July 1976 she was released to work without impairment. She still complained of pain, which worsened. Psychological treatment began. The original orthopedic surgeon, Tom Stanford, discharged her on 9 March 1977 with a minimal impairment. A second orthopedic surgeon, De-Witt Stanford, found no impairment in April 1977. A neurosurgeon recommended an injection and arthrogram of the knee. The first Stanford resumed treatment, but in April 1978, refused to treat the claimant as a compensation case. She went to a third orthopedic surgeon, Dr. Uricchio, who ultimately operated on the claimant’s knee in September 1978. He released her for light work in December and in March 1979 found a 5% impairment. The complaints of pain continued. Uricchio still felt that MMI had been reached in March 1979. In October 1980, Dr. Eckbert, a psychiatrist, also found no reason for the claimant not to work.
The carrier paid TTD benefits from 26 June 1976 through 4 May 1977 and from September 1978 through 13 March 1979 and 5% permanent partial disability (PPD) benefits from 14 March 1979.
None of the medical evidence suggests that the claimant is not fully recovered and is not capable of resuming work. Nonetheless, based on the claimant’s continued pain, to which she testified, and which the deputy commissioner observed, the deputy commissioner found that the claimant had not reached MMI. This finding was error. While certain medical conditions are observable by laymen and questions on those conditions answerable by a deputy commissioner based on his observations, Decks Inc. v. Wright, 389 So. 2d 1074 (Fla. 1st DCA 1980), we are of the opinion that the instant case does not involve such conditions.
Accordingly, the order is reversed because it is not based on competent substantial evidence, Ardmore Farms Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981); Scotty’s Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981). The case is remanded to the deputy commissioner with instructions to make a determination of the claimant’s entitlement to PPD due to lost-wage earning capacity, if any, based on the current record.
WENTWORTH and THOMPSON, JJ., concur.
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Sanlando Util. Corp. & U. S. Fid. & Guar. Co. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982)…t v. Pinkerton-Hayes Lumber Co., 386 So. 2d 535, 536-537 (Fla.1980). However, this rule evaporates when, as here, there is no competent evidence to support a deputy’s conclusions. We think this case is factually similar to Gilbarco, Inc. v. LeRoux, 411 So. 2d 1031 (Fla. 1st DCA 1982) in which a deputy was [*392] found to have erred in accepting a claimant’s testimony that she was not MMI in the face of overwhelming medical evidence to the contrary. Consequently, we reverse the deputy commissioner’s determinat…
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Lindsley Home Care Ctrs. & Fred S. James & Co. of Fla., Inc. v. Lucy E. Fuster and the Division of Workers' Compensation, 413 So. 2d 810 (Fla. 1st DCA 1982)
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Shop & GO, Inc. v. Hart, 537 So. 2d 667 (Fla. 1st DCA 1989)…dical question and, although a claimant’s testimony may be considered on the question, it may not replace a treating physician’s expert opinion. See also Sanlando Utility Corp. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982); Gilbarco, Inc. v. LeRoux, 411 So. 2d 1031 (Fla. 1st DCA 1982). The question of when a claimant reaches MMI must not be confused with the question of when a claimant is able to return to work in some capacity, which is a mixed question involving both medical evidence and the claimant’s own t…
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
- Ardmore Farms, Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981)
- Redgate v. Nat'l Soc'y FOR the Prevention OF Blindness, Inc., 389 So. 2d 1074 (Fla. 4th DCA 1980)
- Decks v. Wright, 389 So. 2d 1074 (Fla. 1st DCA 1980)
- Charity Ann Murvin v. State, 393 So. 2d 657 (Fla. 1st DCA 1981)
- Scotty's, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981)