DADE AMERICAN HOSPITAL SUPPLY AND KEMPER INSURANCE, APPELLANTS,
v.
MANUEL PEREZ AND THE DIVISION OF WORKERS' COMPENSATION, APPELLEES
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Dade American Hospital and Kemper Insurance appealed a workers' compensation award involving a claimant injured in October 1978. The court reversed awards of temporary total disability benefits after the claimant's September 1980 termination and wage loss awards lacking evidence of good faith work search, but affirmed the permanent physical impairment rating while noting technical error in the medical evaluation methodology.
The court reversed the awards of temporary total disability benefits after September 15, 1980, and permanent partial disability benefits based on wage earning capacity loss, holding that such awards cannot stand absent evidence of good faith work search. The court affirmed the fifteen percent permanent physical impairment award despite finding technical error in Dr. Gilbert's failure to consult the AMA Guides, as this readily correctable error was not substantially raised before the deputy during the thirty-day period before finality.
[1] An award of temporary total disability benefits after termination of employment requires evidence of a good faith work search.
[2] An award based on loss of wage earning capacity in excess of physical impairment cannot stand absent a good faith work search.
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Join FLexlaw to unlock all legal intelligence“An award based on loss of wage earning capacity in excess of physical impairment cannot stand absent a good faith work search.”
Establishes the controlling legal standard that reversed the wage capacity loss awards, citing University of West Florida v. Nall
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Join FLexlaw to unlock all legal intelligenceClaimant suffered a compensable back injury on October 13, 1978, and was subsequently terminated from employment on September 15, 1980, due to high ab…
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PER CURIAM.
Claimant suffered a compensable back injury on October 13, 1978, which led to his eventual termination from employment on September 15,1980, due to his high incidence of absenteeism. The deputy commissioner awarded temporary total disability benefits for two periods of hospitalization, in June and in August, 1980, and for a third period beginning September 7, 1980, and extending through November 12, 1980, the date of maximum medical improvement. The claimant concedes that the award of temporary total disability benefits after termination of his employment was error in that there was no evidence of a good faith work search during the period following September 15, 1980. The awards of temporary total disability benefits after September 15 and of permanent partial disability benefits based on loss of wage earning capacity accordingly are reversed. An award based on loss of wage earning capacity in excess of physical impairment cannot stand absent a good faith work search. University of West Florida v. Nall, 404 So. 2d 381 (Fla. 1st DCA 1981).
Dr. Ortiz testified for the employer/carrier that claimant had a five per cent permanent physical impairment based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1977) (Guides). Dr. Gilbert, upon whom the deputy relied, testified that claimant had a ten to fifteen per cent permanent anatomical impairment, but he did not consult the Guides. Use of Dr. Gilbert’s rating was technical error. Section 440.-15(3)(a)3, Florida Statutes (1979). However, this matter could easily have been brought to the deputy’s attention during the thirty-day period before the order became final. Section 440.25(4)(a), Florida Statutes (1981); Acosta Roofing Co. v. Gill-yard, 402 So. 2d 1321 (Fla. 1st DCA 1981). We will not reverse as to such a readily correctable error which was not substantially raised before the deputy. Sunland Hospital/State of Florida v. Garrett, 783 So. 2d 415 (Fla. 1st DCA 1982) [1982 FLW 1222], Cross examination of Dr. Gilbert on his use of the Guides does not constitute substantially raising the issue before the deputy. The award of fifteen per cent permanent physical impairment is affirmed.
The employer/carrier’s concern over the timing of the hearing on wage earning capacity diminution under section 440.25(3)(a), Florida Statutes (1978), is extinguished by our reversal of the award based on loss of wage earning capacity. The remaining points raised by the employer/carrier are without merit, and the order is otherwise affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
MILLS, LARRY G. SMITH, and SHAW, JJ., concur.
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Cited By (14 total)
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Timmeny v. Tropical Botanicals Corp./Zurich Ins. Co., 615 So. 2d 811 (Fla. 1st DCA 1993)…r should have asserted within 203 days after order was mailed that JCC erred in excluding claimant’s non-covered employment from consideration for purpose of determining the amount of wage-loss benefits due claimant); Dade Am. Hosp. Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982) (carrier should have informed JCC within 30-day period before order became final that JCC erroneously relied on testimony of physician who did not consult AMA Guides in assigning impairment rating); Sunland Hosp./State of Fla. v.…
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B & J Windows & Nationwide Ins. Co. v. Sweitzer, 420 So. 2d 363 (Fla. 1st DCA 1982)…wenty days after copies of the order were mailed to the parties as provided for by section 440.25(4)(a), Florida Statutes (1979). The issue not having been presented to the deputy, we will not consider it now. Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981). The carrier’s denial of benefits in the face of unrefuted medical evidence…
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Chain Store Warehouses & Aetna Ins. Co. v. Picard, 431 So. 2d 685 (Fla. 1st DCA 1983)…tric Co. v. Fedder, 419 So. 2d 733 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); see also D & J Windows v. Sweitzer, 420 So. 2d 363 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981). AFFIRMED. Appellee’s motion for an appellate attorney’s fee is DENIED. § 440.34, Fla.Stat. (1979). SHIVERS and WIGGINTON, JJ., concur. . Conshor stated that…
Previewing 3 of 14 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)
- Univ. OF W. Fla. & Div. of Risk Mgmt. of the State of Fla. v. Nall, 404 So. 2d 381 (Fla. 1st DCA 1981)