Allman v. Meredith Corp., AT-457

Citation451 So.2d 957
Decision Date12 June 1984
Docket NumberNo. AT-457,AT-457
PartiesEdwin ALLMAN, Jr., Appellant, v. MEREDITH CORPORATION and Maryland Casualty Company, Appellees.
CourtCourt of Appeal of Florida (US)

David M. Hammond, Orlando, for appellant.

Wendell J. Kiser and Marshall S. Adler of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellees.

SHIVERS, Judge.

In this workers' compensation case, claimant, Edwin Allman, Jr., appeals the order of the deputy commissioner which denied his claims for temporary total disability and medical benefits. Claimant raises five points on appeal. We reverse the deputy's findings as to all five points, since these points are interrelated.

Claimant injured his neck in a compensable accident on August 21, 1975. In August of 1977, claimant had an anterior cervical fusion performed at the C5-6 vertebra level by Dr. Donald L. Ames in Vero Beach, Florida. Thereafter, claimant returned to work for a short period of time, but due to the pain he was experiencing, discontinued his employment. In July of 1978, a myelogram was performed on claimant under the direction of Dr. Ames at Indian Rivers Hospital. This myelogram revealed a small cervical bar at the C6-7 vertebra level. The myelogram also revealed the spinal fusion performed earlier by Dr. Ames at the C5-6 vertebra level.

After the performance of the myelogram at Indian Rivers Hospital, claimant moved to New Jersey to be near his immediate family. In March of 1979, claimant first met with a Dr. Clement H. Kreider, Jr., a neurosurgeon, who became claimant's primary treating physician thereafter. Subsequently, on August 9, 1979, a hearing was held before the deputy commissioner sub judice on, among other matters, claimant's claim of diminution of his wage earning capacity in excess of the 20% permanent partial disability previously accepted by the carrier. After the same, the deputy entered an order on September 10, 1979, which, inter alia, reserved ruling and retained jurisdiction on the issues of whether claimant was entitled to any temporary total disability benefits, permanent partial disability benefits, or permanent total disability benefits. These issues were to be resolved pending receipt of additional medical testimony.

In February of 1982, claimant and the employer/carrier entered into a joint stipulation that claimant be paid the sum of $6,000 as a full settlement of any claim that claimant might have for back due compensation benefits up to February 23, 1982. The stipulation further provided that claimant was to enter the hospital under the care of a Dr. Montoya for a myelogram. This stipulation was approved by the deputy commissioner.

Dr. Montoya performed a second myelogram on claimant on February 23, 1982. This myelogram revealed the presence of spondylosis and degenerative disc disease at the C6-7 vertebra level. Although Dr. Montoya did not opine as to the causal relationship between claimant's disc disease and his accident, he did opine that claimant's disability was in the neighborhood of 25% considering claimant's ankylosis at the C5-6 vertebra level (the location of claimant's previous surgery) and claimant's degenerative disc disease at the C6-7 vertebra level. Dr. Montoya also opined that claimant had reached maximum medical improvement and that he could return to light work.

On October 4, 1982, claimant underwent his third myelogram, this one by Dr. Kreider. This myelogram again revealed problems at the C6-7 vertebra level, i.e., a herniated intervertebral disc at C6-7. Dr. Kreider thereafter performed an anterior cervical fusion on claimant at the C6-7 vertebra level on October 18, 1982. Pursuant to deposition, Dr. Kreider opined that claimant's herniated disc at the C6-7 vertebra level, and the resulting surgery, were causally related to claimant's industrial accident within a reasonable degree of medical probability. Dr. Kreider based his opinion on his examination of the myelogram performed by Dr. Ames in 1978, his subsequent treatment of claimant, the physical and radiologic findings adduced from examinations of claimant, including the changes in the radiologic findings over a period of time, and the history given to Dr. Kreider by claimant of claimant's condition and how claimant progressed throughout the years.

On March 11, 1983, claimant's attorney filed an application for hearing requesting a hearing on temporary total disability benefits from February 19, 1982, to date and prospectively, payment of remedial care and attention, prescriptions, mileage reimbursement, penalties, interest, attorney's fees and costs. The deputy commissioner's notice of hearing set forth the same matters for hearing as outlined in claimant's application for hearing. At the hearing, claimant testified that he had not worked since 1978 and that since February of 1982 he had spent his time staying at home or visiting with his sister. The employer/carrier refuted claimant's testimony by showing films of claimant engaging in construction work for his brother-in-law's company in May of 1982 and May of 1983. These films showed claimant working construction without any signs of disability. Based on the foregoing, the deputy commissioner entered an order finding, inter alia: (i) that claimant reached maximum medical improvement on June 12, 1980, with a 25% permanent partial disability of the body as a whole as a result of claimant's accident in 1975; (ii) that claimant failed to demonstrate a loss of wage earning capacity in excess of this 25% permanent partial disability rating; and, (iii) that claimant's continuing complaints and need for medical care were no longer causally related to his accident. As to this latter finding, the deputy specifically rejected the testimony of Dr. Kreider to the contrary, finding that Dr. Kreider had a total lack of understanding as to claimant's true physical abilities and activities in 1982.

Claimant's first point raised on appeal is that the deputy commissioner erred in ruling on claimant's loss of wage earning capacity in excess of the 25% disability rating assigned by the deputy, since this issue was not properly noticed for hearing. We agree. Here, the application for hearing, the notice of hearing, and the pretrial stipulation all stated that the subject of the hearing below was claimant's entitlement to temporary total disability benefits, the payment of remedial care and attention, mileage reimbursement, interest, penalties, attorney's fees and costs. At hearing, claimant's counsel reiterated that these issues were the subject of the hearing and at no point during the hearing did the deputy commissioner state or indicate, nor did the respective parties state or indicate, that claimant's loss of wage earning capacity was to be adjudicated. Although we recognize that issues "properly presented and ripe for adjudication" should be adjudicated, see Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809, 810 (Fla. 1st DCA 1982) (emphasis added), it is also well established that notice must be given as to the issues in dispute to adequately apprise the deputy and the respective parties of the issues the deputy is to hear and determine. See, e.g., United States Steel Corp. v. Green, 353 So.2d 86 (Fla.1977); Diplomat Hotel v. Grimes, 379 So.2d 1025 (Fla. 1st DCA 1980), cert. denied, 388 So.2d 1112 (Fla.1980). If the law as articulated in these latter two cases was otherwise, a party could present evidence, as in the instant case, without the knowledge that such evidence would have a bearing on issues that the deputy commissioner might subsequently decide were ripe for adjudication. Further, a party (again as in the instant case) would be effectively prevented from presenting rebuttal or additional evidence on such issues. Accordingly, we find and hold that the deputy commissioner erred in ruling on claimant's loss of wage earning capacity and direct the deputy upon remand to strike those portions of the order not addressing the issues as framed in the notice of hearing. 1

Claimant's next point raised on appeal is that the deputy commissioner erred in finding that claimant's continuing complaints and need for medical care are no longer causally related to the industrial accident occurring in August of 1975. Again, we agree with claimant. Sub judice, the only medical testimony before the deputy as to the causal relationship between claimant's accident and claimant's abnormal disc condition at the C6-7 vertebra level, and Dr. Kreider's resulting surgery, was Dr. Kreider's deposition testimony taken on October 1, 1981, and on February 17, 1983. In both such depositions, Dr. Kreider opined, within a reasonable degree of medical probability, that claimant's accident was the cause of claimant's abnormal condition at the C6-7 vertebra. Significantly, no other testimony was introduced at the hearing to refute Dr. Kreider's opinion. To the contrary, it is noteworthy that the deputy found that claimant had a 25% permanent partial impairment. This disability rating presumptively was founded on Dr. Montoya's opinion that claimant had a disability of 25% based on claimant's anklyosis at the C5-6 vertebra level and claimant's degenerative disc disease at the C6-7 vertebra level. Thus, by finding claimant's disability at 25%, the deputy implicitly accepted claimant's abnormal disc condition at the C6-7 vertebra level as being causally related to claimant's accident.

The deputy's stated reason for rejecting Dr. Kreider's opinion was that Dr. Kreider had a total lack of understanding as to claimant's true physical abilities and activities in 1982. This finding by the deputy that Dr. Kreider was totally unfamiliar with claimant's true physical abilities was in turn based on claimant's testimony, and Dr. Kreider's opinion supporting claimant's testimony, that claimant was totally unable to engage in any gainful employment since 1978, when, in fact, claimant was able to engage in gainful...

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