WILLIAM G. KELLY, APPELLANT,
v.
FLORIDA ATLANTIC UNIVERSITY AND DIVISION OF RISK MANAGEMENT, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the deputy erred in reducing the claimant's physical impairment award based on semantic confusion between 'impairment' and 'disability'.
Two doctors provided deposition testimony regarding the claimant's physical impairment, with one stating 5% and the other 20%. The deputy accepted the…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Physical Impairment cases and more on FLexlaw
PER CURIAM.
This appeal concerns the interpretation to be placed on the deposition testimony of Doctors Murphy and Huntington on the degree of physical impairment suffered by claimant. We note that the evidence in question was by deposition and that our vantage point in interpreting the deposition is not inferior to that of the deputy. See Phipps v. Sheffman, 211 So. 2d 598 (Fla. 3d DCA 1968) and Dukes v. Dukes, 346 So. 2d 544 (Fla. 1st DCA 1976). We REVERSE and REMAND with directions.
Doctor Murphy testified that claimant suffered a 5% physical impairment; Doctor Huntington testified that claimant suffered a 20% physical impairment. We see no error in the deputy’s acceptance of Dr. Huntington’s testimony over that of Dr. Murphy. However, the deputy reduced the physical impairment to be awarded to 10% because he concluded that the 20% figure included an improperly assigned 10% disability for functional impairment. Although there are apparent incongruities in Dr. Huntington’s testimony as to the basis for his assignment of 20% physical impairment, we are convinced that these incongruities arise from semantic difficulties with the words of art, “impairment” and “disability.” Nevertheless, the doctor explicitly testified that:
Q. And what was your final opinion on permanent physical impairment from the injury in the accident, sir?
A. Was that he had a 20 percent disability of his lower back.
Q. Is that opinion of 20 percent disability to the low back the same as a 20 percent permanent physical impairment to the body as a whole, sir?
A. Yes.
This exchange persuades us that Dr. Huntington was testifying that the 20% impairment was physical, and that his use of “disability” was not an improper reference to disability in the sense of a loss of wage earning capacity. Accordingly, we REVERSE and REMAND with directions to award 20% physical impairment to the claimant.
MILLS, LARRY G. SMITH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Poorman v. Muncy & Bartle Painting & Reliance Ins. Co., 433 So. 2d 1371 (Fla. 1st DCA 1983)…the deputy commissioner based his decision totally on the medical depositions. We note that the vantage point of this court is not inferior to that of the deputy commissioner in interpreting deposition evidence. Kelly v. Florida Atlantic University, 413 So. 2d 833 (Fla. 1st DCA 1982). We find that the medical evidence sub judice leads to a conclusion of compens-ability. Where an injury is shown, and the evidence presents a sufficiently logical explanation of a causal relationship between the accident and the…
-
Sanlando Util. Corp. & U. S. Fid. & Guar. Co. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982)…hority suggests that when all the evidence on a particular point is in deposition form certain limited situations do permit an appellate tribunal to reweigh the evidence in the workers’ compensation setting. See Kelly v. Florida Atlantic University, 413 So. 2d 833 (Fla. 1st DCA 1982); Haga v. Clay Hyder Trucking Lines, 397 So. 2d 428, 431 (Fla. 1st DCA 1981), rev. denied, 402 So. 2d 609 (Fla.1981); Morrison Merchandising Corp. v. Rambeau, 377 So. 2d 234, 236 (Fla. 1st DCA 1979), cert. denied, 386 So. 2d 640 (…
-
Fla. Mining & Materials v. Mobley, 649 So. 2d 934 (Fla. 1st DCA 1995)…evidence presented by deposition. The appellate court is not disadvantaged in assessing the probative value of depositions, as opposed to live testimony. Sabre Marine v. Feliciano, 461 So. 2d 985 (Fla. 1st DCA 1984); Kelly v. Florida Atlantic Univ., 413 So. 2d 833 (Fla. 1st DCA 1982). But the case may not be retried on appeal, and a ruling which is supported by competent substantial evidence will be upheld even though there may be some persuasive evidence to the contrary. Swanigan v. Dobbs House, 442 So. 2d 1…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dukes v. Allie N. Dukes, 346 So. 2d 544 (Fla. 1st DCA 1976)
- City OF Melbourne v. Evans, 211 So. 2d 598 (Fla. 4th DCA 1968)