LINDSLEY HOME CARE CENTERS AND FRED S. JAMES & CO. OF FLORIDA, INC., APPELLANTS,
v.
LUCY E. FUSTER AND THE DIVISION OF WORKERS' COMPENSATION, APPELLEES
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In this workers' compensation appeal, the court addressed whether a claimant injured in a compensable accident in 1980 was entitled to temporary total disability (TTD) benefits and attorney's fees. The court affirmed the award of medical bills and costs but reversed the TTD award and attorney's fees award due to insufficient medical evidence of disability.
The court held that bare complaints of continued pain that prevent work are not sufficiently observable injuries to justify reliance on claimant testimony alone without medical evidence of disability. The TTD award was reversed and remanded for determination based on the claimant's actual testing of her ability in the job market. The attorney's fees award was also reversed.
[1] A deputy commissioner may rely on a claimant's subjective complaints to determine disability when the issue does not require medical expertise and lies within the claiman…
[2] A claimant's bare complaints of continued pain, without more, are not sufficient to establish disability when such pain is not readily observable by lay people and lacks…
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Join FLexlaw to unlock all legal intelligence“the deputy can so rely when the issue does not require medical expertise but rather lies within the actual knowledge of the claimant or is readily observable by lay people”
Establishes the standard for when deputy commissioners may rely on claimant testimony without expert evidence
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Join FLexlaw to unlock all legal intelligenceIn March 1980, the claimant injured her right knee in a compensable accident, which required surgical treatment for a torn lateral meniscus. She subse…
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MILLS, Judge.
The employer/carrier appeal an order finding the claimant temporarily totally disabled (TTD) and ordering payment of medical bills, costs, and attorney’s fees. We affirm in part and reverse in part.
In March' 1980, the claimant injured her right knee in a compensable accident. A tear of the lateral meniscus was surgically treated. She began feeling pain in her left knee and back. Although his testimony is not clear, the treating physician felt that a causal relationship existed between the accident and the subsequent pain. No expert evidence was presented as to the degree of the claimant’s disability. The claimant testified that the pain was too great for her to work full time and part-time work had been unobtainable.
Once again this Court is presented with a case in which the deputy commissioner relied on the claimant’s account of her injuries in answering the mixed question of medicine and subjective complaints of the degree of the claimant’s disability. It is established law that the deputy can so rely when the issue does not require medical expertise but rather lies within the actual knowledge of the claimant or is readily observable by lay people. See, Square G Const. Co. v. Grace, 412 So. 2d 397 (Fla. 1st DCA 25 March 1982), and cases collected therein. The only issue is whether certain injuries are so observable. A claimant’s bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable, Gilbarco, Inc. v. LeRoux, 1031 So. 2d 411 (Fla. 1st DCA 1 April 1982); Commercial Carrier Corp. v. Bennett, 396 So. 2d 847 (Fla. 1st DCA 1981); Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981). Due to a lack of medical evidence of disability, the order is reversed and the cause is remanded for a determination of the claimant’s entitlement to temporary disability, if any, based on the claimant’s testing of her ability in the job market. Lehigh Corp. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981). The existing record shall be used.
The claimant argues that the award of her attorney’s fees was authorized under Section 440.34(2)(c), Florida Statutes (1979). This issue is controlled by Ardmore Farms, Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981). The award of the claimant’s attorney’s fees is reversed.
We have reviewed the employer/carrier’s other arguments and find them to be without merit. In all other respects the order is affirmed.
LARRY G. SMITH and SHAW, JJ., concur.
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Sanlando Util. Corp. & U. S. Fid. & Guar. Co. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982)…ndising Corp. v. Rambeau, 377 So. 2d 234, 236 (Fla. 1st DCA 1979), cert. denied, 386 So. 2d 640 (Fla.1980). . As a general rule for TTD purposes, bare complaints of pain will not excuse a search for employment, Lindsley Home Care Centers v. Fuster, 413 So. 2d 810 (Fla. 1st DCA 1982), especially in the face of medical testimony as to a claimant’s ability to work. Forming Contractors v. Barry, 413 So. 2d 132 (Fla. 1st DCA 1982). Further, this case does not fall within the narrow situation excusing a work searc…
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Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)…dical expertise but rather lies within the actual knowledge of the claimant, is readily observable by lay people or involves physical conditions and symptoms involving ordinary evidentiary credibility standards. Lindsley Home Care Centers v. Fuster, 413 So. 2d 810 (Fla. 1st DCA 1982); Square G. Construction Co. v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982). The rule is also subject to qualification with respect to short periods of time. Southern Bell Telephone & Telegraph Co. v. Seneca, 433 So. 2d 1369 (Fla. 1…
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Harper Plumbing & Heating & Hewitt v. Boyd, 418 So. 2d 396 (Fla. 1st DCA 1982)…eadily observable by lay people.” However, a claimant’s “bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable” and is insufficient in itself. Lindsley Homecare Centers v. Fuster, 413 So. 2d 810, 811 (Fla. 1st DCA 1982). See also Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981). Here, as the claimed inability to work was not readily observable, claimant’s testimony that he did not feel capable of working his scheduled hours was i…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lehigh Corp. & U. S. Fid. & Guar. Co. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981)
- Square G. Constr. Co. & U. S. Fid. & Guar. Co. v. Handsome Grace, 412 So. 2d 397 (Fla. 1st DCA 1982)
- Ardmore Farms, Inc. v. Squires, 395 So. 2d 268 (Fla. 1st DCA 1981)
- 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)
- Commercial Carrier Corp. v. Bennett, 396 So. 2d 847 (Fla. 1st DCA 1981)
- Gilbarco, Inc. v. LeROUX, 411 So. 2d 1031 (Fla. 1st DCA 1982)