CITY OF HIALEAH AND ALEXSIS, INC., APPELLANTS,
v.
RODOLFO JIMENEZ, APPELLEE

Fla. 1st DCA | 1988-06-30
No. 87-461
ZEHMER and BARFIELD, JJ., concur.
527 So. 2d 936 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 5 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.

Synopsis

The City of Hialeah and its servicing agent appealed a workers' compensation award granting a garbage collector chiropractic care and temporary partial disability benefits. The appellate court affirmed the award, holding that the employer must cover requested chiropractic treatment if determined reasonable and necessary, and that the deputy commissioner properly calculated the claimant's average weekly wage and post-injury wage loss.


Holding

The employer must provide chiropractic care when expressly requested by the claimant and determined to be reasonable and necessary, even if an orthopedic physician has been provided. The average weekly wage was properly determined using the claimant's full-time weekly wages under section 440.14(1)(d) where only one day of employment existed and the employer failed to prove the existence of a similar employee. The deputy properly deducted business expenses from gross receipts to calculate post-injury earnings for wage loss benefits.


Headnotes

[1] An employer is obligated to pay for chiropractic treatment obtained by a claimant after request, provided such treatment is determined to be reasonable and necessary for…

[2] When a claimant has been employed for only one day at the time of injury and no similar employee is proven, the average weekly wage is determined based on the claimant's…

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Key Quotes

“Claimant had expressly requested chiropractic care as a specific alternative treatment, and the provision of an orthopedic physician did not satisfy the employer's obligation with regard to this request.”

Establishes that expressly requested chiropractic care must be provided even when alternative medical treatment has been offered

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Facts & Procedural History

Claimant injured his back on his first day of employment as a garbage collector when he fell carrying a heavy container. After initial medical treatme…

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Employer/servicing agent seek review of a workers’ compensation order by which claimant was awarded chiropractic care and compensation for temporary partial disability and wage loss. We affirm the order appealed.

Claimant injured his back on his first day of employment as a garbage collector when he fell while carrying a heavy container. After receiving medical treatment claimant was initially discharged, but continued to experience pain and difficulty with his back. He subsequently filed a claim requesting various benefits including orthopedic and chiropractic care. He was then sent to an orthopedic physician who determined that claimant had sustained a permanent impairment and functional disability due to his back injury. Although he continued to experience difficulty with his back claimant was not furnished the chiropractic care which he had requested. Claimant obtained such treatment on his own and pursued the claim before a deputy commissioner. The deputy awarded the requested chiropractic treatment after a hearing at which evidence was presented that such palliative care is both a reasonable and necessary treatment for claimant’s back injury. Claimant had expressly requested chiropractic care as a specific alternative treatment, and the provision of an orthopedic physician did not satisfy the employer’s obligation with regard to this request. See Kirkland v. Harold Pratt Paving, 518 So. 2d 1320 (Fla. 1st DCA 1987). The employer was thus properly required to pay for chiropractic treatment which the claimant obtained after request, insofar as such treatment was determined to be reasonable and necessary. See Kirkland v. Harold Pratt Paving, supra; section 440.13(2)(b), Florida Statutes.

The deputy also resolved the parties’ dispute regarding claimant’s average weekly wage. Since claimant had been working for only one day at the time of his injury, and there was no proof of any similar employee, the average weekly wage determination was based upon claimant’s full-time weekly wages in accordance with section 440.14(l)(d), Florida Statutes. Employer/servicing agent argue that claimant’s proof was speculative as to the amount of his wages and did not negate the possibility of a similar employee. It is the claimant’s burden to establish the average weekly wage. See Linderman v. Kirkland’s Restaurant, 127 So. 2d 888 (Fla.1961). Claimant satisfied this initial burden in the present case by presenting testimony and documentary evidence as to the duration of his employment and his rate of pay. If a similar employee did exist, so as to warrant an average weekly wage determination in accordance with section 440.14(l)(b), Florida Statutes, employer/servicing agent could have produced evidence in this regard. Such proof is more readily within the employer’s control and, claimant having satisfied the initial burden, insofar as it is the employer/servicing agent seeking to minimize claimant’s average weekly wage they should have presented such evidence if it exists. See Alterman Transport Lines Inc. v. Goetzman, 430 So. 2d 486 (Fla. 1st DCA 1983); cf., Homestead Tomato Packing v. Daniels, 420 So. 2d 109 (Fla. 1st DCA 1982).

After the industrial injury claimant became self-employed, driving his own bus. In determining claimant’s post-injury earnings for an award of wage loss benefits pursuant to section 440.15(3)(b), Florida Statutes, the deputy utilized claimant’s net earnings after deducting business expenses. This methodology has been approved in Apholz v. North American Van Lines, 427 So. 2d 1094 (Fla. 1st DCA 1983), and Coles v. Gainesville Bonded Warehouse, 409 So. 2d 1205 (Fla. 1st DCA 1982). While Apholz and Coles involved claimants working as independent contractors after their industry injuries, the rationale of those cases is likewise applicable to the self-employed claimant in the present case. The deputy properly deducted business expenses from gross receipts to establish claimant’s post-injury earnings for the purpose of assessing wage loss.

The order appealed is affirmed.

ZEHMER and BARFIELD, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …the employer’s statutory obligation, and that the employer was therefore required to pay for chiropractic treatment if such treatment was determined to be reasonable and necessary by a judge of compensation claims (JCC). City of Hialeah v. Jimenez, 527 So. 2d 936 (Fla. 1st DCA 1988); Kirkland v. Harold Pratt Paving, Inc., 518 So. 2d 1320 (Fla. 1st DCA 1987), review denied, 525 So. 2d 878 (Fla.1988). We have, moreover, recognized that the care offered by orthopedists may be functionally different from chiropr…
  • Markham Iley & Kemper Grp. v. Linzey, 531 So. 2d 1361 (Fla. 1st DCA 1988)
    …ly wage; however, the court expressed no opinion on this analogy. 97 So. 2d at 210. . More recent cases have recognized that some portion of a business owner’s income may indeed be treated as earnings as an employee. See City of Hialeah v. Jimenez, 527 So. 2d 936 (Fla. 1st DCA 1988). . This provision was subsequently amended in 1974 by ch. 74-197, § 5, Laws of Fla., to provide: No compensation shall be payable in respect of the disability or death of any employee covered by the Federal Employees Liability…
  • Baggett v. Mulberry Constr. Co. & Adjustco, 549 So. 2d 1386 (Fla. 1st DCA 1989)
    …rough August 31, 1987. Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985). On remand, the deputy commissioner should determine Baggett’s post-injury earnings according to the methodology prescribed in City of Hialeah v. Jimenez, 527 So. 2d 936 (Fla. 1st DCA 1986), taking further evidence at his discretion. BOOTH and MINER, JJ., concur.…

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