UNITED GENERAL CONSTRUCTION AND MISSION INSURANCE COMPANY, APPELLANTS,
v.
HORACE CASON, APPELLEE
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United General Construction and Mission Insurance Company appealed a workers' compensation order awarding the claimant permanent impairment benefits, wage-loss benefits, costs, and attorney's fees. The appellate court affirmed the award of permanent impairment benefits but remanded for further findings regarding the basis for the attorney's fees award.
The court affirmed that the record supports the finding of permanent impairment, holding that when prescribed medical rating guides do not adequately address an impairment, a deputy commissioner may rely on a qualified physician's expert opinion based on treating experience without reliance on medical manuals or guides. The court reversed the attorney's fees award and remanded because the deputy commissioner failed to state the statutory ground upon which entitlement to attorney's fees was based.
[1] A deputy commissioner in a workers' compensation case may rely on a physician's expert opinion regarding permanent impairment when medical rating guides do not adequately…
[2] A physician's expert opinion on permanent impairment is competent and substantial evidence if it is based on the physician's personal judgment, experience treating the cl…
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Join FLexlaw to unlock all legal intelligence“where prescribed medical rating guides do not adequately address an impairment, the deputy may properly rely upon a physician's qualified expert opinion which utilizes experience in treating the specific claimant, and experience in treating the type of impairment in question”
Establishes the legal standard for when physician testimony without reference to medical guides is competent and substantial evidence in workers' compensation cases.
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Join FLexlaw to unlock all legal intelligenceThe claimant in a workers' compensation dispute was awarded permanent impairment benefits based primarily on a physician's testimony. The physician's …
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JOANOS, Judge.
This is an appeal from a workers’ compensation order in which the deputy commissioner awarded wage-loss benefits, costs, and attorney’s fees to the claimant. Two issues are raised on appeal: (1) whether there was competent, substantial evidence in the record to support the deputy commissioner’s finding that claimant had suffered a permanent impairment, and (2) whether there was competent substantial evidence to support the award of attorney’s fees.
We affirm in part and remand for further findings as to the issue of attorney’s fees.
In this case, the claimant in a worker’s compensation dispute was awarded permanent impairment benefits based primarily upon a physician’s testimony. The physician’s opinion testimony was based upon his personal judgment of the claimant’s history of subjective complaints of pain and specifically excluded consideration of the recognized medical reference guides. Thus, the first issue is whether the record supports the deputy commissioner’s reliance upon this testimony or more specifically, whether the physician’s testimony was competent and substantial to prove the permanency of the impairment.
We find that the record does support the deputy’s finding that the claimant suffered a permanent impairment. We reaffirm our holding in Martin County School Board v. McDaniel, 465 So. 2d 1235 (Fla. 1st DCA 1984), that where prescribed medical rating guides do not adequately address an impairment, the deputy may properly rely upon a physician’s qualified expert opinion which utilizes experience in treating the specific claimant, and experience in treating the type of impairment in question. Such an opinion will suffice without reliance on a medical manual or guide. In Martin, as in this case, the physician’s opinion was particularly compelling due to the length of time spent in evaluating and monitoring the pattern of subjective symptoms.
Turning to the award of attorney’s fees, Section 440.34(3), Fla.Statutes, presents a threshold which the claimant must affirmatively cross in order to recover attorney’s fees. The ground upon which entitlement to attorney’s fees is based must be stated by the deputy. Structural Forming, Inc. v. Mas, 440 So. 2d 488 (Fla. 1st DCA 1983). This was not done by the deputy commissioner in his order. Therefore, we remand for further findings as to the premise for the award of attorney’s fees.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
ERVIN and BARFIELD, JJ., concur.
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Lucien COQ v. Fuchs Baking Co. & GAB Bus. Servs., 507 So. 2d 138 (Fla. 1st DCA 1987)…ef ’N Booze, 443 So. 2d 1007, 1012 (Fla. 1st DCA 1983). Accord Martin County School Board v. McDaniel 465 So. 2d 1235, 1240 (Fla. 1st DCA 1984) (on rehearing en banc), appeal dismissed, 478 So. 2d 54 (Fla.1985); United General Construction v. Cason, 479 So. 2d 833 (Fla. 1st DCA 1985). The AMA Guidelines were inapplicable to claimant’s asthmatic condition because the Guidelines establish PI for a respiratory condition only if one suffers from dyspnea (difficulty in breathing), or impaired ventilatory function…
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Philpot v. City OF Miami, 541 So. 2d 680 (Fla. 1st DCA 1989)…Shop & Go, Inc. v. Hart, 537 So. 2d 667 (Fla. 1st DCA 1989), quoting Patterson v. Wellcraft Marine, 509 So. 2d 1195, [*683] 1197 (Fla. 1st DCA 1987). See also Dayron Corp. v. Morehead, 509 So. 2d 930 (Fla.1987); United General Construction v. Cason, 479 So. 2d 833 (Fla. 1st DCA 1985); Martin County School Board v. McDaniel, 465 So. 2d 1235 (Fla. 1st DCA 1984), appeal dismissed, 478 So. 2d 54 (Fla.1985). Although as a rule, a deputy need not explain why he accepts one physician’s testimony over that of anothe…
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Patterson v. Wellcraft Marine, 509 So. 2d 1195 (Fla. 1st DCA 1987)…at the deputy can properly rely upon a physician’s qualified expert opinion, which utilizes experience in treating a claimant, and that such an opinion will suffice without reliance on a medical manual or guide. United General Construction v. Cason, 479 So. 2d 833, 834 (Fla. 1st DCA 1985); Martin County School Board v. McDaniel. We therefore conclude that the deputy did not have the right to reject the unrefut-ed testimony of claimant’s expert witness. Calleyro v. Mt. Sinai Hospital. See also Curtis v. Flori…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv. v. McDANIEL, 465 So. 2d 1235 (Fla. 1st DCA 1984)
- Structural Forming, Inc. v. MAS, 440 So. 2d 488 (Fla. 1st DCA 1983)