POLK COUNTY BOARD OF COUNTY COMMISSIONERS AND COMMERCIAL RISK MANAGEMENT, INC., APPELLANTS,
v.
DONALD PATTERSON, APPELLEE
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In a workers' compensation appeal, the Florida District Court of Appeal affirmed an award of vocational rehabilitation benefits to an injured employee, holding that an AMA impairment rating is not a prerequisite to vocational rehabilitation benefits under Florida law, and upholding the assessment of attorney's fees for the employer's handling of the rehabilitation request.
The court held that nothing in section 440.49(1)(a) makes an AMA impairment rating a condition precedent to vocational rehabilitation benefits. The employee qualifies for vocational rehabilitation if he has suffered a covered injury that will preclude him from earning wages equal to pre-injury wages. The attorney's fees assessment was properly considered where the issue was raised in the claim, notice of hearing, and pre-hearing stipulation, even if not specifically litigated.
[1] A permanent impairment rating under the AMA Guidelines is not a condition precedent to an award of vocational rehabilitation benefits under section 440.49(1)(a), Florida…
[2] An employee may be entitled to vocational rehabilitation benefits if an injury precludes them from earning wages equal to those earned prior to the injury, even without a…
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Join FLexlaw to unlock all legal intelligence“nothing in section 440.49(l)(a) makes such a rating a condition precedent to an award of rehabilitation benefits”
Establishes that an AMA impairment rating is not required for vocational rehabilitation benefits, distinguishing rehabilitation from other benefits that do require ratings.
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Join FLexlaw to unlock all legal intelligenceClaimant suffered a work-related back injury while operating mowing equipment. Medical restrictions prevent him from lifting more than 50 pounds singu…
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ROBERT P. SMITH, Jr., Chief Judge.
In this workers’ compensation appeal the employer and servicing agent contend that claimant is not entitled to vocational rehabilitation benefits under section 440.49(l)(a), Florida Statutes (1980), for the reason, among others, that he has not been assigned a permanent impairment rating under the AMA Guidelines. We disagree, for nothing in section 440.49(l)(a) makes such a rating a condition precedent to an award of rehabilitation benefits. Compare §§ 440.15(3)(a)3, 440.15(3)(b)l, Fla.Stat. (1980), requiring such ratings in connection with the award of permanent impairment and wage-loss benefits.
While claimant has as yet no impairment rating under the AMA Guidelines, the record supporting the deputy’s order shows that claimant “has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury.” Sec. 440.49(l)(a). Claimant is not to lift anything heavier than fifty pounds singularly or twenty pounds repeatedly; he must change positions frequently in order to avoid muscle fatigue; and he is medically advised to avoid bending or twisting his spine under stress while in a stooped position. Claimant was operating mowing equipment when injured and previously his livelihood was in other like jobs that are now beyond his capabilities or cannot be found in the Polk County area where claimant resides. Moreover, the dep-uty found, and the evidence sustains his view, that claimant attempted to return to his former position as a general purpose maintenance man but was unable to continue due to his back condition. Viewing these facts in a light most favorable to sustaining the deputy’s order, as we must, we approve the deputy’s award of vocational rehabilitation to train claimant in other work.
Appellants also contend that the deputy erred in assessing attorney’s fees pursuant to section 440.34(3) (b), Florida Statutes (1980); Despite the concession in claimant’s brief that the parties did not specifically litigate claimant’s entitlement to attorney’s fees on account of the employer’s or servicing agent’s bad faith handling of claimant’s request for rehabilitation benefits, the claim, notice of hearing and pre-hearing stipulation raised that issue, and the deputy reasonably considered the testimony of certain named witnesses as directed to that issue. If the deputy’s ruling upon that issue was unintended by the parties, or was otherwise inadvertent, that oversight might and should have been brought to the deputy’s attention within 30 days after the order was mailed, before it became final. § 440.25(4)(a), Fla.Stat. (1981); see, e.g., B & 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). There is no other error. AFFIRMED.
WENTWORTH and ZEHMER, JJ., concur.
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Edgewood Boys' Ranch Found. & N.H. Ins. Co. v. Robinson, 451 So. 2d 532 (Fla. 1st DCA 1984)…ention of the deputy commissioner during the thirty day period before the order became final pursuant to Section 440.25(4)(a), Florida Statutes (1983). Chain Stores Warehouses v. Picard, supra; Polk County Board of County Commissioners v. Patterson, 433 So. 2d 1298 (Fla. 1st DCA 1983); 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); cf., Suarez v. American Building Maintenance, 412 So. 2d 32 (Fla. 1st DCA 198…
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R.W. Builders & Aetna Life & Cas. Co. v. Andrelien Dessources, 436 So. 2d 322 (Fla. 1st DCA 1983)…PER CURIAM. AFFIRMED. See Polk County Board of County Commissioners and Commercial Risk Management, Inc. v. Donald Patterson, 433 So. 2d 1298 (Fla. 1st DCA 1983). JOANOS, WIGGINTON and ZEHMER, JJ., concur.…
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Juma Constr. & United States Fid. & Guar. Co. v. Orlando Villanueva and the Division of Workers' Compensation, 437 So. 2d 715 (Fla. 1st DCA 1983)…e errors complained of could easily have been corrected had they been brought to the deputy’s attention within thirty days of rendition of the order, see Section 440.25(4)(a), Florida Statutes; Polk County Board of County Commissioners v. Patterson, 433 So. 2d 1298 (Fla. 1st DCA 1983); Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st 1982); Sunland v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. [*716] Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981). Therefore we affirm. A…
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
- Acosta Roofing Co. & Lumbermens Mut. Cas. Co. v. Gussie Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981)
- Dade Am. Hosp. Supply & Kemper Ins. v. Manuel Perez and the Division of Workers' Compensation, 417 So. 2d 296 (Fla. 1st DCA 1982)
- B & J Windows & Nationwide Ins. Co. v. Sweitzer, 420 So. 2d 363 (Fla. 1st DCA 1982)