Arnold Lumber Co. v. Harris

• Citation: 503 So.2d 925,12 Fla. L. Weekly 532
• Decision Date: 16 February 1987
• Docket Number: No. BH-317,BH-317
• Parties: 12 Fla. L. Weekly 532 ARNOLD LUMBER COMPANY and R.P. Hewitt & Associates, Appellants, v. Verner E. HARRIS, Appellee.
• Court: Florida District Court of Appeals

Page 925

503 So.2d 925

12 Fla. L. Weekly 532

ARNOLD LUMBER COMPANY and R.P. Hewitt & Associates, Appellants, v. Verner E. HARRIS, Appellee.

No. BH-317.

District Court of Appeal of Florida,

First District.

Feb. 16, 1987.

Rehearing Denied March 27, 1987.

Thomas J. Maida of Karl, McConnaughhay, Roland, Maida & Beal, P.A., Tallahassee, for appellants.

James E. McKenzie of McKenzie & Associates, P.A., Pensacola, for appellee.

SMITH, Judge.

The employer/carrier appeal an order awarding claimant permanent total and temporary total disability benefits, attorney's fees, and payment of Dr. Batson's medical bills. They appeal and the claimant cross-appeals that portion of the deputy's order reducing claimant's compensation rate by five percent (5%) because of a preexisting impairment caused by claimant's arthritis, in accordance with this court's decision in Escambia County Council v. Goldsmith, 465 So.2d 655 (Fla. 1st DCA 1985) (Goldsmith I ). We affirm in part, reverse in part, and remand for further proceedings.

The deputy's award of permanent total and temporary total disability benefits is supported by competent, substantial evidence. As stated many times by this court, we will not retry the claim at the appellate level and substitute our judgment for that of the deputy on factual issues supported by competent, substantial evidence. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983).

The deputy ordered that Dr. Batson's medical bills be paid by the employer/carrier since claimant was referred to Dr. Batson by Dr. Owens, who was authorized; and even if Dr. Owens was not authorized, claimant had been referred to him in the chain of medical care. On appeal, for the first time, the employer/carrier contend that there were two doctors named "Dr. Owens" in this case, one an M.D., who was authorized, and the other, a chiropractor, who was not authorized. Accordingly, they argue that the referral by Dr. Owens, the chiropractor, to Dr. Batson was not authorized. This issue cannot be raised for the first time on appeal. Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981). Moreover, the record before the deputy supports his conclusion that Dr. Owens, the chiropractor, was authorized. Since an authorized chiropractor referred claimant to Dr. Batson for treatment, the employer/carrier are responsible for Dr. Batson's bill. Sloan v. Concrete Sciences, 382 So.2d 411 (Fla. 1st DCA 1980).

The award of attorney's fees under section 440.34(3)(c), Florida Statutes (Supp.1980), was correct. This statute provides for an award of attorney's fees where the employer/carrier deny that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability. The employer/carrier paid medical benefits only and refused to pay any compensation or disability benefits. Payment of medical benefits does not constitute the payment of compensation. § 440.02(11), Fla.Stat. (Supp.1980). Here, the claimant was forced to prove the compensable nature of his injury and his entitlement to compensation for wage loss and temporary total and permanent total disability benefits. See Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981) (claimant was entitled to attorney's fees where it was apparent that claimant suffered a catastrophic injury, that carrier denied that such a catastrophic loss had occurred for which compensation benefits were payable but did admit a compensable injury had occurred and claimant prevailed in obtaining catastrophic loss benefits). Florida Welding & Erection Service v. Martin, 417 So.2d 1166 (Fla. 1st DCA 1982), relied upon by the employer/carrier, is distinguishable. Although the opinion is unclear, the briefs in that case ¹ reveal that the employer/carrier had paid temporary total disability benefits for a period. Therefore this court concluded that section 440.34(3)(c) was not applicable since the E/C had not denied that an injury occurred for which compensation benefits were payable.

Finally, Dr. Batson gave claimant a fifteen percent (15%) permanent partial impairment rating according to the AMA Guides, and he causally related claimant's condition to his industrial accident. He felt that claimant's 1981 back injury was superimposed upon a preexisting arthritic condition, which condition accounted for 5% of the claimant's overall 15% impairment. Dr. Batson testified that claimant's condition prevented him from returning to work in his pre-accident employment as a pulpwood worker. He agreed that claimant's back condition was so severe that claimant should lie down three times per day. The deputy accepted Dr. Batson's testimony and went on to find that claimant was permanently totally...