ALFREDA JACKSON, APPELLANT,
v.
PUBLIX SUPERMARKETS, INC., AND HARTFORD INS. GROUP, APPELLEES
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In a workers' compensation case, the Florida District Court of Appeal reversed a deputy commissioner's denial of chiropractic treatment benefits and finding of no permanent impairment, while affirming the denial of additional compensation for failure to make adequate job search efforts. The court held that the employer/carrier was obligated to either authorize chiropractic care or obtain a ruling that such alternative treatment was not in the claimant's best interest.
The court affirmed the denial of additional compensation because the record supported the finding that claimant failed to make a good faith effort to obtain employment. However, the court reversed the denial of chiropractic treatment because the employer/carrier was obligated to either authorize such alternative care or obtain a ruling that it was not in claimant's best interest. The court also reversed the finding of no permanent impairment because the medical restrictions imposed by the treating physician were inconsistent with such a finding. The employer/carrier conceded that penalties and interest should have been awarded.
[1] Penalties and interest are awardable for the late payment of workers' compensation benefits.
[2] A claimant's failure to establish a good faith effort to obtain employment can result in the denial of additional compensation for a diminution in earnings.
Previewing 2 of 5 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“Although the treating orthopedic physician stated that he found "no objective evidence ... of any permanent injuries" (e.s.), the doctor recommended that claimant be retrained for lighter work and advised that she should avoid heavy lifting and the cold environment of her former employment. The imposition of these medical restrictions, which were, in context, attributable to the industrial injury and not temporary in nature, is inconsistent with the absence of any permanent impairment and negates the deputy's conclusion in this regard.”
Establishes the court's reasoning that medical restrictions imposed by the treating physician negate a finding of no permanent impairment.
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Join FLexlaw to unlock all legal intelligenceClaimant sustained shoulder, hip, and back injuries from two successive falls in the employer's meat department. After six weeks off work, she attempt…
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WENTWORTH, Judge.
Claimant seeks review of a workers’ compensation order by which a claim for additional compensation, penalties and interest, and medical benefits, was denied. Employer/carrier concede that penalties and interest should have been awarded for the late payment of compensation. We find that the deputy applied an improper standard to the claim for chiropractic treatment, and that the record does not support the deputy’s determination that claimant sustained no permanent impairment. We therefore reverse these aspects of the order appealed.
Claimant experienced industrial accidents on two successive days while working in employer’s meat department. These accidents involved falls which produced injuries to claimant’s shoulder, hip, and back. She received medical treatment and remained out of work for six weeks, after which she attempted to resume her former employment. Claimant testified that she was unable to satisfactorily perform her former job duties and since no lighter work was available the employment was terminated with claimant receiving a substantial lump sum retirement payment.
After a period of unemployment claimant obtained a job from which she was discharged after four weeks, and then af ter another period of unemployment she obtained a job with part-time hours. Claimant’s testimony establishes only a minimal work search effort throughout this time. The deputy found that claimant did not make a good faith effort to obtain employment during the months for which the claim was filed, and the record provides adequate support for this factual determination. The claim for additional compensation was thus properly denied since claimant did not establish by an adequate job search or other evidence that her diminution in earnings was causally related to the industrial injury.
The record does not support the deputy’s further determination that claimant sustained no permanent impairment. Although the treating orthopedic physician stated that he found “no objective evidence ... of any permanent injuries” (e.s.), the doctor recommended that claimant be retrained for lighter work and advised that she should avoid heavy lifting and the cold environment of her former employment. The imposition of these medical restrictions, which were, in context, attributable to the industrial injury and not temporary in nature, is inconsistent with the absence of any permanent impairment and negates the deputy's conclusion in this regard.1
After claimant attained maximum medical improvement she requested alternative medical care, thereafter specifying that she desired chiropractic treatment. Although other medical care was authorized claimant was not provided with a chiropractor as requested and she obtained such treatment on her own, submitting the bills for payment. The deputy commissioner denied the claim for payment of these bills because claimant commenced the chiropractic treatment while under the active care of an authorized physician. However, in the circumstances of this case employer/carrier were obligated to either provide chiropractic authorization or obtain a ruling from the deputy that such alternative care was not in claimant’s best interest. See Bradley Construction v. White, 457 So. 2d 547 (Fla. 1st DCA 1984); Sears, Roebuck & Co. v. Viera, 440 So. 2d 49 (Fla. 1st DCA 1983). Employer/carrier’s failure to comply with this obligation would render them responsible pursuant to section 440.13(2), Florida Statutes, for the unauthorized chiropractic treatment if it is determined to be reasonable and necessary. White, supra; Viera, supra. The deputy should therefore consider whether chiropractic treatment was reasonable and necessary palliative care for claimant’s compensable condition.
The finding of no permanent impairment, the denial of the chiropractic claim, and the denial of penalties and interest are reversed. The order appealed is otherwise affirmed and the cause is remanded for further consistent proceedings.
NIMMONS and ZEHMER, JJ., concur. . Claimant is thus not precluded from attempting to establish the existence of a permanent impairment at such time as any further claim may mature.
Claimant’s motion for rehearing/clarification expresses concern that the opinion in this case will preclude any wage loss award based on deemed earnings for the accrued periods in question. Section 440.15(3)(b)2, Florida Statutes. That is the effect of the decision, permitting a new determination of the permanent impairment issue as a predicate for any future claim but affirming the deputy’s denial of benefits on the alternative finding that causal relation between injury and wage loss was not established. The latter finding was affirmed based on absence of adequate work search or other compelling evidence (in addition to a restriction against claimant’s return to her former work) that claimant was medically limited to employment at a diminished wage.
Rehearing is therefore denied.
NIMMONS and ZEHMER, JJ., concur.
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Closet Maid & Crawford & Co. v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000)…ng cause, while permissible, is not conclusive on the trier-of-fact when such testimony is inconsistent with other testimony of the same witness. Above All Drywall v. Shearer, 651 So. 2d 195 (Fla. 1st DCA 1995), Jackson v. Publix Supermarkets, Inc., 520 So. 2d 50 (Fla. 1st DCA 1987). Dr. Kaplan’s testimony concerning “major contributing cause” was confusing, contradictory, and subject to different interpretations upon which reasonable men could differ.15 The JCC determined the [*392] issue in favor of Mr. S…
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Chase v. Henkel & McCOY & Liberty Mut. Ins. Co., 562 So. 2d 831 (Fla. 1st DCA 1990)…hat such alternative care was not in the claimant’s best interest. The E/C’s failure to comply renders them responsible for unauthorized chiropractic treatment if it is determined to be reasonable and necessary. Jackson v. Publix Supermarkets, Inc., 520 So. 2d 50 (Fla. 1st DCA 1987); Kirkland v. Harold Pratt Paving, Inc., 518 So. 2d 1320 (Fla. 1st DCA 1987). However, should the E/C authorize alternative chiropractic care, and the parties do not agree to a treating doctor, in a non-emergency situation it is t…
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Borges v. Osceola Farms Co. & Nat'l Emp'rs Co., 651 So. 2d 173 (Fla. 1st DCA 1995)…case, it is the claimant’s burden to seek a decision through the JCC or risk being required to pay the bill. § 440.13(2), Fla.Stat. (Supp.1990); Chase v. Henkel & McCoy, 562 So. 2d 831, 832 (Fla. 1st DCA 1990); Jackson v. Publix Supermarkets, Inc., 520 So. 2d 50, 51 (Fla. 1st DCA 1987). Moreover, the authorization of neurological or orthopedic care does not satisfy the E/C’s obligation to authorize chiropractic care upon request for same. Kirkland v. Harold Pratt Paving, Inc., 518 So. 2d 1320, 1325 (Fla. 1s…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kronz v. State, 440 So. 2d 49 (Fla. 1st DCA 1983)
- Sears v. Viera, 440 So. 2d 49 (Fla. 1st DCA 1983)
- Bradley Constr. & Se. Fire Ins. v. White, 457 So. 2d 547 (Fla. 1st DCA 1984)