LINDA R. GRIFFITH, APPELLANT,
v.
MCDONALDS AND KEMPER GROUP, APPELLEES

Fla. 1st DCA | 1988-06-16
No. 87-1201
SHIVERS and WTGGINTON, JJ., concur.
526 So. 2d 1032 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 30 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the employer's failure to inform the claimant of her obligation to search for work and keep records excused her inadequate work search, entitling her to temporary partial disability benefits. The denial of wage loss benefits was affirmed based on the deputy commissioner's acceptance of medical testimony finding no permanent impairment.


Headnotes

[1] A deputy commissioner in workers' compensation cases has the discretion to determine credibility and resolve conflicts in evidence, including accepting the testimony of o…

[2] The acceptance or rejection of medical testimony by a deputy commissioner in a workers' compensation claim should not be disturbed unless the testimony fails to meet the…

Previewing 2 of 4 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

Facts & Procedural History

The claimant suffered three work-related falls and quit her job. She claimed temporary partial disability and wage loss benefits. The deputy commissio…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Linda Griffith appeals from an order of the deputy commissioner denying her claim for temporary partial disability benefits (TPD) and wage loss benefits. We affirm in part and reverse in part.

Griffith suffered three falls while employed by McDonald’s (E/C), in September, November and December 1985. After the first two incidents, she was able to return to work, but she quit after the third, feeling herself incapable of continuing her duties. Her complaints consisted primarily of headaches, back pain and loss of feeling in both arms.

After the initial September 1985 accident, on September 20, 1985, Griffith consulted Dr. Kaplan, a chiropractor whom she was seeing at the time for other problems. It was Kaplan’s opinion that she reached MMI on July 1,1986 with a 10% permanent impairment; he had released her to work on March 1, 1986, stipulating only that she not return to her former duties. It is undisputed that she was never informed by McDonald’s of her obligation to thereafter search for work and keep records of that search to preserve her eligibility for TPD benefits.. She testified that, after leaving McDonald’s on January 1, 1986, she has looked for work on her own, consulting with “20 to 30” prospective employers offering work she felt she could do; no records were kept.

Griffith underwent an independent medical evaluation by Dr. Ford, an orthopedist, in September 1986. Available to Dr. Ford were an August 1986 normal MRI exam and an EMG ordered by him, also normal. Because of the normal exams, which Ford stated would have shown abnormalities given Griffith’s complaints, and because there was no logical relationship between Griffith’s complaints and her symptoms, Ford opined that she had reached MMI without permanent impairment and with no restrictions or limitations on her daily activities. Dr. Saiontz, who saw her in February and March 1987, also opined MMI but with permanent impairment of 10-15%.

Griffith filed a claim for benefits seeking TTD, TPD or wage loss from September 21-27, 1985, November 15-19 1985 and from January 1, 1986 to the present. Based on the foregoing evidence, the deputy found Griffith entitled to TTD for the first two periods and from January 1, 1986 to February 28, 1986. The deputy denied TPD benefits from March 1,1986 to July 1, 1986 (MMI) based on the absence of an adequate work search, and wage loss thereafter was denied based on the opinion of Dr. Ford that Griffith had suffered no permanent impairment.

With regard to the deputy’s denial of wage loss benefits, it is well established that in the determination of workers’ comp claims, it is the DC’s function to determine credibility and resolve conflicts in the evidence and that he may accept the testimony of one physician over that of several others. The acceptance and rejection of medical testimony rests with the deputy and his discretion should not be disturbed unless the medical testimony itself fails to meet the test of the substantial evidence rule. S & S Stove Repair, Inc. v. Dumas, 465 So. 2d 644, 646 (Fla. 1st DCA 1985). Here, Dr. Ford’s opinion that no permanent impairment was suffered was based on the results of objective testing as well as his own experience and observation. We decline to disturb the deputy’s acceptance of his testimony. Therefore, the denial of wage loss was required by the finding of lack of permanent impairment, see Section 440.15, Florida Statutes (1985), and we affirm on this issue.

However, TPD was denied based on an inadequate work search, despite the E/C’s acknowledged failure to inform Griffith of her responsibility to do and record such a search to be eligible for TPD. In Coq v. Fuchs Baking Co., 507 So. 2d 138 (Fla. 1st DCA 1987), the claimant was excused from a work search based on the E/C’s failure to inform him of the responsibility to perform one, despite, as in this case, the instruction by claimant’s doctor to seek employment. The court held that “the worker’s compensation process is an employer/carrier monitored system, not a doctor monitored system.” Coq at 141. With regard to Griffith’s representation by counsel, see Barnes v. PCH Parker, 464 So. 2d 1298 (Fla. 1st 1985) (the duty of informing an injured claimant of the benefits available to him is not lessened or diminished by the claimant’s representation by an attorney) and Morris v. Metal Industries, 491 So. 2d 312 (Fla. 1st DCA 1986) (claimant excused from a work search even though advised by counsel to perform one).

Therefore, because E/C acknowledges its failure to properly inform Griffith of her responsibility to perform and record a work search, and that failure is not excused as argued by E/C, we reverse the denial of TPD for the period March 1 — July 1, 1986 and remand. The order is in all other respects affirmed.

SHIVERS and WTGGINTON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (15 total)

  • …(on account of permanent partial disabilities) allowed under statutes formerly in force could not be awarded in the absence of some permanent impairment. See Stanley v. Okeelanta Corp., 575 So. 2d 734, 735 (Fla. 1st DCA 1991); Griffith v. McDonalds, 526 So. 2d 1032, 1033 (Fla. 1st DCA 1988). The final order does not find that Mr. Oswald has reached maximum medical improvement or assign a permanent impairment rating. Evidence adduced at the merits hearing on March 20, 1997, might have supported a finding that…
  • Antone Koulias v. Tarpon Marine Ways, 538 So. 2d 130 (Fla. 1st DCA 1989)
    …r several others. The acceptance and rejection of medical testimony rests with the deputy, and his discretion should not be disturbed unless the medical testimony itself fails to meet the test of the substantial evidence rule. Griffith v. McDonalds, 526 So. 2d 1032, 1033 (Fla. 1st DCA 1988). In this case, the medical opinion relied on by the deputy was based on objective testing as well as on the doctor’s experience and observation. We also note that Koulias’ treating physician did not treat him at the time of…
  • Nickolls v. Univ. OF Fla. & Div. of Risk Mgmt., 606 So. 2d 410 (Fla. 1st DCA 1992)
    …rms, which contain space for documenting an employee’s job search. The obligation placed on the E/C to so inform continues, notwithstanding the claimant’s knowledge that a physician has released him or her to. full activity, Griffith v. McDonald’s, 526 So. 2d 1032, 1033 (Fla. 1st DCA 1988), or his or her awareness of notice from some person other than the E/C of the duty to conduct a work search, Morris v. Metal Industries, 491 So. 2d 312 (Fla. 1st DCA 1986) (the fact that an employee was instructed by an att…

Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw