CLAY HYDER TRUCKING, APPELLANT,
v.
WILMA PERSINGER, APPELLEE
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A self-insured employer appeals a workers' compensation award of wage-loss benefits under Florida law. The appellate court affirms the deputy commissioner's decision, holding that the employer waived its objection about AMA Guides compliance by failing to raise it at the lower level, and that substantial evidence supports the claimant's inability to return to work.
The court affirmed the award, holding that the employer waived its AMA Guides argument by failing to present it to the deputy commissioner before, during, or after the hearing, and that the record contained competent substantial evidence supporting the claimant's inability to return to her former employment or find alternative work.
[1] A party generally cannot raise an issue on appeal that was not presented to the deputy commissioner below.
[2] The adequacy of a claimant's work search is a factual issue within the deputy commissioner's fact-finding authority.
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“The employer did not present this issue before the deputy, either before, during, or after the hearing, and therefore should not now be heard to complain on this point.”
Establishes the waiver doctrine—issues not raised before the administrative decision-maker cannot be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligenceWilma Persinger, a truck driver, was injured and received a workers' compensation award including wage-loss benefits under § 440.15(3)(b). The deputy …
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PER CURIAM.
The self-insured employer appeals a workers’ compensation order, contesting the award of § 440.15(3)(b), wage-loss benefits. We conclude that the deputy commissioner did not err in awarding such benefits, and we affirm the order appealed.
The employer asserts that the deputy erred by predicating the wage-loss award on a disability rating not explicitly stated to be in conformity with the AMA Guides to the Evaluation of Permanent Impairment (1977). Section 440.15(3)(a)3, Florida Statutes, provides that the AMA Guides shall serve as a temporary schedule for determining the existence and degree of permanent impairment.1 The employer did not present this issue before the deputy, either before, during, or after the hearing, and therefore should not now be heard to complain on this point. See Sunland Hospital v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); also see Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981).
The employer also questions claimant’s inability to return to her former employment as a truck driver, or to find alternative employment, during the period for which wage-loss benefits were awarded. The argument on this point is essentially one of competent substantial evidence, and the record presents numerous issues as to credibility and weight of the evidence,2 which issues can properly be resolved only by the deputy commissioner. See Grillo v. Big B Ranch, 328 So. 2d 429 (Fla.1976). Indeed, the adequacy of a claimant’s work search is itself a factual issue within the ambit of the deputy’s fact-finding authority, and the deputy’s conclusion in this regard will be upheld if the record provides any competent substantial evidence in support thereof. Because the record in the present case does contain such evidence, we conclude that the employer has failed to demonstrate error. Accordingly, the order appealed is affirmed.
ERVIN and SHIVERS, JJ., concur. WENTWORTH, J., concurs with opinion.
. Compare Decor Painting v. Rohn, 401 So. 2d 899 (Fla. 1st DCA 1981), with Tallahassee Memorial Regional Medical Center v. Snead, 400 So. 2d 1016 (Fla. 1st DCA 1981). As in Snead, the award in the present case is not dependent on a specific degree of impairment; wage-loss benefits are awardable upon the existence of “any permanent impairment” [e.s.]. See § 440.15(3)(b)1.
. E.g., claimant’s physician testified at one point that it would “probably take several months before she rehabilitates herself back to the rigors of truck driving,” while at another point indicating that claimant could perhaps return to such work by “circumvent[ing] the use of the clutch through proper r. p. m.’s of the engine.”
WENTWORTH, Judge,
concurring.
I agree entirely with the majority opinion but would also conclude that the substance of the medical evidence in the present case satisfies the statutory standards, considering the physician’s precise description of physical and functional conditions substantiated during and after claimant’s orthopedic surgery for her fractured foot. The evidence leaves room for no serious question as to the existence of some degree of permanent impairment, by any standard, and the employer provides no contrary analysis of the medical testimony to show insufficiency of the proof of impairment under the Guides.
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Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)…her abilities. Pompano Roofing Co., Inc. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982). These issues presented questions of fact for determination by the deputy commissioner as to which no error has been shown. See, Clay Hyder Trucking v. Persinger, 416 So. 2d 900 (Fla. 1st DCA 1982). The motion for rehearing of the en banc decision is DENIED. ROBERT P. SMITH, Jr., C.J., and McCORD, ERVIN, BOOTH, SMITH, L., SHIVERS, SHAW, WENTWORTH, JOA-NOS and WIGGINTON, JJ., concur. MILLS, J., concurs specially with opin…
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Trujillo v. S. Wine & Spirits, 525 So. 2d 481 (Fla. 1st DCA 1988)…rk search is a factual issue within the deputy commissioner’s fact-finding authority, and the deputy commissioner’s conclusion in this regard will be upheld if the record provides any competent substantial evidence. Clay Hyder Trucking v. Persinger, 416 So. 2d 900 (Fla. 1st DCA 1982). See also Paramount Poultry v. Mims, 472 So. 2d 1281 (Fla. 1st DCA 1985); Hinds v. Orlando Concrete Contractors, 454 So. 2d 81 (Fla. 1st DCA 1984). Furthermore, a workers’ compensation order needs only the degree of specificity n…
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Martin Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv. v. McDANIEL, 465 So. 2d 1235 (Fla. 1st DCA 1984)…, substantial evidence, which accords with logic and reason, to sustain them.” U.S. Cas. Co. v. Maryland Cas. Co., 55 So. 2d 741, 744-5 (Fla.1951). . Rich v. Com. Carrier Corp., 422 So. 2d 1011 (Fla. 1st DCA 1982); Clay Hyder Trucking v. Persinger, 416 So. 2d 900, 901 (Fla. 1st DCA 1982) (fn. 1); Tallahassee Memorial Regional Medical Center v. Snead, 400 So. 2d 1016 (Fla. 1st DCA 1981). . In emphasis of this distinction the doctor, on cross examination, said his rating was based on "my own interpretation” o…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)
- Acosta Roofing Co. & Lumbermens Mut. Cas. Co. v. Gussie Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981)
- Grillo v. BIG "B" Ranch, 328 So. 2d 429 (Fla. 1976)
- Tallahassee Mem'l Reg'l Med. Ctr. & Corporate Grp. Serv., Inc. v. Snead, 400 So. 2d 1016 (Fla. 1st DCA 1981)
- Mack v. State, 401 So. 2d 899 (Fla. 2d DCA 1981)
- Decor Painting & Iowa Mut. Ins. Co. v. Rohn, 401 So. 2d 899 (Fla. 1st DCA 1981)