Butler Const. v. Walker, BR-376

• Decision Date: 30 March 1988
• Docket Number: No. BR-376,BR-376
• Citation: 524 So.2d 691,13 Fla. L. Weekly 813
• Parties: 13 Fla. L. Weekly 813 BUTLER CONSTRUCTION and Crims, Inc., Appellants, v. Kevin WALKER, Appellee.
• Court: Florida District Court of Appeals

Page 691

524 So.2d 691

13 Fla. L. Weekly 813

BUTLER CONSTRUCTION and Crims, Inc., Appellants, v. Kevin WALKER, Appellee.

No. BR-376.

District Court of Appeal of Florida First District.

March 30, 1988.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.

Donna C. Wyatt of Malone, Beers, Glatt & Wyatt, Orlando, for appellee.

PER CURIAM.

This cause is before us on appeal of an order awarding claimant wage-loss benefits for November 1985 through February 1986, and May 1986, and awarding claimant continuing remedial medical care. The employer and carrier (E/C) appeal on grounds that (1) the deputy commissioner (the deputy) erred in denying the E/C's motion for continuance and then failing to rule on all pending issues, (2) the deputy erred in ordering the E/C to provide claimant with remedial care, and (3) the deputy erred in awarding wage-loss benefits. After careful consideration, we affirm in part and reverse in part.

Claimant is a 26-year-old iron and construction worker who suffers from several lower-back injuries. In February 1985, he was injured while working for the employer when he fell off a scaffold while carrying a tie beam. Claimant received temporary disability benefits for that injury until November 1985, when, according to a February 1986 deposition of treating physician Dr. Montes, he reached maximum medical improvement (MMI). Although he was advised not to seek further construction work, claimant found the first of several post-injury construction jobs in February 1986. These positions were temporary and often paid less than the one he had when injured. In February 1986, he submitted a wage-loss claim for all months following November 1985. However, before a hearing could be held, claimant seriously aggravated his back injury on at least two occasions. One injury occurred on June 30, 1986, and the second on August 18, 1986. Although he was able to resume work within a few days of the June injury, he has not been able to work since the August injury. Claimant then amended his claim to request remedial medical treatment. Some weeks after they received notice of this amendment, the E/C filed a motion for continuance. The basis of the motion was that, although claimant contended that the June and August 1986 reinjuries were an aggravation of the injury suffered while working for the employer in 1985, the E/C believed that the reinjuries were entirely new and unrelated to the 1985 accident. Consequently, the E/C maintained that the 1986 injuries were the responsibility of the 1986 employer and requested that that employer be joined. The motion for continuance was filed on September 26, for a hearing to be held on October 7.

We find no error in the deputy's refusal to continue the hearing. In this case, claimant has been unable to work or receive authorized medical treatment since the August 1986 injury. The record indicates that he suffers from significant pain. Consequently, time was of the essence. Rule 4.110, Florida Workers' Compensation Rules of Procedure, allows the deputy to grant a continuance "if he finds that the cancellation or continuance is for good cause which has not resulted from lack of diligence in the prosecution or defense of the claim." (emphasis added). The record indicates that the E/C were aware of the grounds for continuance as early as September 3, but they did not file their request until September 26. Under the circumstances, the deputy did not abuse his discretion.

Somewhat more troubling is the deputy's failure to rule on the issue of entitlement to temporary total disability benefits. Although the record reflects that the request was not noticed in the claim or mentioned in the pretrial stipulation, claimant's attorney did specifically request the benefits at hearing. A deputy commissioner must adjudicate all issues which are presented and ripe for disposition. Estech General Chemicals Corp. v. Graham, 424 So.2d 138, 139 (Fla. 1st DCA 1982). While failure to do so may render the order interlocutory and, consequently, not reviewable by direct appeal, Estech, supra, at 139, citing Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982), we note that in this case the claimant has still not received the medical treatment or benefits which were awarded by the deputy nearly one year ago. Consequently, we choose to treat this improperly filed appeal as a petition for a writ of certiorari under Rule 9.030(b)(2)(A), Florida Rules of Appellate...