QUALITY PETROLEUM CORPORATION AND FEDERATED MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
ELYSE DULA MIHM, APPELLEE
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In this workers' compensation appeal, the First District Court of Appeal addressed whether a deputy commissioner properly awarded permanent partial disability, temporary total disability, and wage loss benefits to an employee injured when she fell from a ladder. The court affirmed the finding of permanent impairment based on generally accepted medical standards outside the AMA Guides, but reversed portions of the wage loss and temporary disability awards due to insufficient evidence of a causal connection between the disability and the wage loss.
The court held that where uncontradicted sworn testimony establishes permanent physical impairment not addressed by the AMA Guides, it is not error to rely on medical testimony based on other generally accepted medical standards. However, the court reversed the award of temporary total disability benefits from January 14 through March 25, 1980, because the claimant's own testimony regarding pain was insufficient to establish inability to work in the absence of supporting medical evidence contradicting the treating physician's opinion that she could work. The court also reversed in part the wage loss benefits award, holding that there must be a reasonable temporal relation between a good faith work search and claimed wage loss; thus, the award for March 25 through April 30, 1980, was not supported by evidence since the claimant did not begin searching for work until May 1980.
[1] A deputy commissioner may rely on medical testimony of permanent impairment based upon generally accepted medical standards, even if the impairment is not addressed by th…
[2] Wage loss benefits require a claimant to demonstrate a change in employment status due to the injury and an adequate and good faith attempt to secure employment commensur…
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Join FLexlaw to unlock all legal intelligence“Where the uncontradicted sworn testimony establishes that an injured employee has suffered permanent physical impairment, but that impairment is not addressed by the American Medical Association's Guides, it is not error for the deputy to rely on medical testimony of permanent impairment based upon other generally accepted medical standards.”
Establishes the holding that permanent impairment may be found based on generally accepted medical standards even when the AMA Guides do not address the specific injury type.
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Join FLexlaw to unlock all legal intelligenceElyse Dula Mihm sustained a compensable injury on November 4, 1979, when she fell from a ladder and injured her right leg. She was initially treated c…
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SHIVERS, Judge.
Claimant sustained a compensable injury on November 4, 1979, when she fell from a ladder injuring her right leg. She was conservatively treated for approximately one week by her family physician. Her leg continued to be swollen and painful, and she was subsequently diagnosed as having a large hematoma with partial infection. Claimant was hospitalized and surgical treatment rendered.
A claim for benefits was filed on February 18, 1980, seeking temporary total disability benefits for the period of time prior to March 25, 1980, and wage loss benefits subsequent to that date. Based on the depositional testimony and medical reports of Dr. Melton and other treating physicians, the deputy commissioner found claimant reached maximum medical improvement on March 25,1980, and sustained a ten percent (10%) permanent partial impairment of the right lower extremity. The deputy found that following claimant’s maximum medical improvement on March 25, 1980, claimant made a good faith work search. Based on other testimony presented, including that of the claimant, the deputy found claimant incurred a total loss of wages for the period of March 25, 1980, until June 7, 1980. The deputy computed claimant’s compensation rate to be $184.15 per week. The employer and carrier contend, and claimant concedes, that the deputy erred in the computation of that compensation rate. The deputy further ordered the employer and carrier to pay temporary total disability benefits for the period of January 14, 1980, through March 25, 1980. The costs of the proceedings were assessed against the employer and carrier.
The evidence presented to the deputy commissioner on the issue of permanent impairment came from Dr. Melton’s medical reports and his deposition. It was established that claimant was evaluated by Dr. Melton, an orthopedic surgeon, in March of 1980. He opined that claimant had reached maximum medical improvement from an orthopedic standpoint on March 25, 1980, and had sustained a ten percent (10%) permanent partial disability of the right lower extremity. Dr. Melton testified that his rating was based upon a reasonable medical probability but that he did not use the American Medical Association Guides to Permanent Impairment in arriving at this rating. He explained that the AMA Guides did not cover the type of functional disability which was involved in this case such as soft tissue scarring, impairment of local circulation, probability of recurring infection, recurrent swelling and pain. Dr. Melton testified that his rating was not inconsistent with the AMA Guides but rather that the AMA Guides did not address this type of injury. This testimony was not contradicted by any other evidence presented to the deputy commissioner.
On appeal, employer/carrier contend that the deputy erred in awarding wage loss benefits since the claimant’s permanent partial disability was not determined in conformity with section 440.15(3), Fla.Stat., and that the finding was otherwise unsupported by competent, substantial evidence.
Additionally, appellant contends the deputy erred in awarding temporary total disability benefits in that there was no medical evidence supporting an inability to work and claimant failed to make any work search during this period of time.
Finally, appellant contends that the deputy commissioner erred in requiring the employer to pay the costs of the proceedings.
Section 440.15(3), Fla.Stat. (1979), establishes the American Medical Association’s Guides to the Evaluation of Permanent Impairment as the temporary schedule to be used for determining permanent impairment. It appears from that statute that the Legislature did not intend the AMA Guides to remain the sole standard for determining permanent impairment, but rather envisioned the division establishing additional schedules, based on generally accepted medical standards, for determining the existence and degree of permanent impairment. To date, the division has failed to establish any permanent schedule and the American Medical Association’s Guides to the Evaluation of Permanent Impairment continues to be the only schedule authorized by the statute.
Appellant contends that since claimant’s injury did not result in permanent impairment as measured by that guide, there is no statutorily permissible method to evaluate claimant’s permanent impairment. Appellant concludes that claimant cannot legally be considered to have any permanent impairment. It is suggested by appellee that it would be contrary to the purpose of the Workers’ Compensation Act to deny claimants any compensation when they have permanent impairment based upon generally accepted medical standards just because their particular disability is not included within the American Medical Association’s Guides.
We agree. Where the uncontradicted sworn testimony establishes that an injured employee has suffered permanent physical impairment, but that impairment is not addressed by the American Medical Association’s Guides, it is not error for the deputy to rely on medical testimony of permanent impairment based upon other generally accepted medical standards. Rhaney v. Dobbs House, Inc., 415 So. 2d 1277 (Fla. 1st DCA 1982).
Although we affirm the deputy’s finding of permanent impairment, we are compelled to reverse in part the award of wage loss benefits. Section 440.15(3)(b), Fla.Stat. (1979), states that wage loss benefits shall be based upon actual wage loss and shall be computed on the difference between claimant’s average monthly wage before the compensable accident and the salary claimant is able to earn after reaching maximum medical improvement. The burden is on the employee to establish that any wage loss claimed is the result of the compensable injury. Section 440.15(3)(b)(2), Fla.Stat. (1979).
Claimant is required to show a change in employment status due to the injury and an adequate and good faith attempt to secure employment commensurate with claimant’s abilities. Claimant was awarded wage loss benefits from March 25, 1980, until June 7, 1980, but claimant admitted that she did not begin to look for work until May of 1980.
Although exact coincidence is not required, there should be a reasonable temporal relation between a good faith work search and the wage loss benefits claimed. The award of total loss of wages for the period March 25, 1980, through April 30, 1980, is, thus, not supported by competent, substantial evidence. However, there is competent, substantial evidence that beginning in May, 1980, claimant made a good faith work search and that she is entitled to an award of total loss of wages from May 1, 1980, through June 7, 1980, as a result of her compensable injury. Accordingly, this portion of the order is affirmed in part and reversed in part.
The deputy’s finding that claimant was entitled to receive temporary total disability benefits from January 14, 1980, through March 25,1980, is not supported by competent, substantial evidence and must also be reversed. Claimant’s family physician, Dr. Albo, released claimant to return to normal work as of January 14, 1980. Dr. Melton described claimant’s condition as scar tissue which tends to swell and remain tender and symptomatic to some extent, but he did not disagree with Dr. Albo’s opinion that claimant was able to return to work in January of 1980. Claimant admitted that she did not begin looking for work until May of 1980, because prior to that time she could not walk on her leg as it was too painful. A claimant’s testimony as to being unable to work due to pain is not sufficient to establish temporary total disability in the absence of medical evidence of inability to work. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981).
We affirm the taxing of costs against the employer and carrier. Hatch v. City Cab Co., 382 So. 2d 895 (Fla. 1st DCA 1980).
Accordingly, this cause is AFFIRMED in part, REVERSED in part and REMANDED to the deputy commissioner with instructions to enter an order consistent with this opinion.
BOOTH and LARRY G. SMITH, JJ., concur.
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Trindade v. Abbey Road Beef 'N Booze, 443 So. 2d 1007 (Fla. 1st DCA 1983)…” Id. at 1279-80. Subsequent cases have reflected and extended the rationale of Rha-ney so as to find entitlement to benefits with respect to injuries which we have determined to be “not covered” by the Guides. Quality Petroleum Corporation v. MIHM, 424 So. 2d 112 (Fla. 1st DCA 1982) (injury to right leg — soft tissue scarring, impairment of circulation, probability of recurring infection, recurring swelling and pain); Florida Sheriffs Youth Fund v. Harrell, 438 So. 2d 450 (Fla. 1st DCA 1983) (soft tissue inj…
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Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)…ons where a claimant was explicitly released to work by one or more physicians. See, e.g., Wilbro Dairies v. Hesch, 438 So. 2d 968 (Fla. 1st DCA 1983); Fair-Way Restaurant v. Fair, 425 So. 2d 115 (Fla. 1st DCA 1982); Quality Petroleum Corp. v. Mihm, 424 So. 2d 112 (Fla. 1st DCA 1982); Commercial Carrier Corp. v. Bennett, supra; Walter Glades Condominium v. Morris, supra. We also note that the rule is subject to exceptions. For example, a deputy commissioner may rely on lay testimony and his own observations…
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Martin Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv. v. McDANIEL, 465 So. 2d 1235 (Fla. 1st DCA 1984)…it the term “generally accepted medical criteria” to generally accepted medical schedules. It cited with approval this court’s prior opinions in Rhaney v. Dobbs House, Inc., 415 So. 2d 1277 (Fla. 1st DCA 1982); Quality Petroleum Corporation v. MIHM, 424 So. 2d 112 (Fla. 1st DCA 1982), and Florida Sheriffs Youth Fund v. Harrell, 438 So. 2d 450 (Fla. 1st DCA 1983), which had allowed proof of permanent impairment to be established on evidence other than medical schedules exclusively. For example, we said in Rha…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tallahassee Coca Cola Bottling Co. & Hartford Ins. Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981)
- Ada Rhaney v. Dobbs House, 415 So. 2d 1277 (Fla. 1st DCA 1982)
- Jordan v. State, 382 So. 2d 895 (Fla. 4th DCA 1980)
- Hatch v. City CAB Co. OF Orlando & Travelers Ins. Co., 382 So. 2d 895 (Fla. 1st DCA 1980)