ROCHENEL NORVILUS, APPELLANT,
v.
BEST WESTERN SEA SPRAY AND UNITED SELF INSURED SERVICES, APPELLEES
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The court clarified that an insurer's failure to timely perfect its subrogation rights, not a release, was the reason for the dismissal of its claim against the tortfeasor.
The insurer's failure to timely perfect its subrogation rights, not the release itself, barred its suit against the tortfeasors.
[1] A judge of compensation claims may rely on a doctor's qualified expert opinion, based on experience and other generally accepted medical standards, when the AMA Guides do…
[2] A judge of compensation claims cannot reject unrefuted medical testimony.
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Join FLexlaw to unlock all legal intelligenceThe insurer's insured settled with the tortfeasor and executed a release. The insurer did not perfect its subrogation rights until nearly a year after…
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ERVIN, Judge.
Appellant’s motion for rehearing is granted, our original opinion is withdrawn and the following opinion substituted for it.
We affirm all points raised by appellant/claimant in this workers’ compensation proceeding with the exception of the judge’s finding that claimant sustained no permanent impairment as a result of the industrial accident, and the judge’s failure to include a provision in the order directing appellee to pay all accrued underpayment resulting from the parties’ stipulation as to average weekly wage. As to the latter issue, appellees conceded the error; therefore, we reverse and remand with directions to modify the order by including the requested provision. As to the permanent impairment issue, we reverse and remand for clarification.
In finding no permanent impairment, the judge of compensation claims (JCC) relied on the testimony of Dr. Hoover, one of claimant’s treating physicians, who testified that under the AMA Guides, claimant had no permanent impairment; however, the doctor also stated that the AMA Guides did not specifically address claimant’s injury, and that, based on his professional experience after considering claimant’s subjective complaints of pain, claimant had suffered a permanent impairment of one to three percent. Dr. Hoover also testified that certain objective testing, a myelogram, an MRI, and a CT, indicated an abnormality, and that such defect was probably the source of claimant’s pain.
The law in Florida is well established that if the AMA Guides do not cover a particular impairment, the JCC may rely on a doctor’s qualified expert opinion which utilizes experience in treating the claimant and the particular type of injury or other generally accepted medical standards. Dayron Corp. v. Morehead, 509 So. 2d 930, 931 (Fla.1987); Rodriguez v. Dade County Sch. Bd., 511 So. 2d 712, 713 (Fla. 1st DCA 1987); Patterson v. Wellcraft Marine, 509 So. 2d 1195, 1197 (Fla. 1st DCA 1987); United Gen. Constr. v. Cason, 479 So. 2d 833, 834 (Fla. 1st DCA 1985); Martin County Sch. Bd. v. McDaniel, 465 So. 2d 1235, 1240 (Fla. 1st DCA 1984) (on reh’g en banc), appeal & cross-appeal dismissed, 478 So. 2d 54 (Fla.1985).
Because we are unable to reconcile the JCC’s finding of no permanent impairment with Dr. Hoover’s unrefuted opinion that claimant sustained a one to three percent permanent impairment,1 we reverse and remand for further findings as to this issue. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
BARFIELD and BENTON, JJ., concur. . See Patterson v. Wellcraft Marine, 509 So. 2d 1195, 1197 (Fla. 1st DCA 1987) (citing Calleyro v. Mt. Sinai Hosp., 504 So. 2d 1336 (Fla. 1st DCA 1987), for the proposition that a JCC does not have authority to reject unrefuted medical testimony).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Calleyro v. MT. Sinai Hosp., 504 So. 2d 1336 (Fla. 1st DCA 1987)
- Patterson v. Wellcraft Marine, 509 So. 2d 1195 (Fla. 1st DCA 1987)
- Martin Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv. v. McDANIEL, 465 So. 2d 1235 (Fla. 1st DCA 1984)
- Dayron Corp. & the Claims Ctr. v. Morehead, 509 So. 2d 930 (Fla. 1987)
- United Gen. Constr. & Mission Ins. Co. v. Cason, 479 So. 2d 833 (Fla. 1st DCA 1985)
- Margarette Rodriguez v. Dade Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv., 511 So. 2d 712 (Fla. 1st DCA 1987)