Carnegie Gardens v. Mize, 88-1034

• Decision Date: 14 February 1989
• Docket Number: No. 88-1034,88-1034
• Citation: 14 Fla. L. Weekly 485,538 So.2d 1313
• Parties: 14 Fla. L. Weekly 485 CARNEGIE GARDENS and United Self Insured Services, Appellants, v. Tina MIZE, Appellee.
• Court: Florida District Court of Appeals

Page 1313

538 So.2d 1313

14 Fla. L. Weekly 485

CARNEGIE GARDENS and United Self Insured Services, Appellants, v. Tina MIZE, Appellee.

No. 88-1034.

District Court of Appeal of Florida First District.

Feb. 14, 1989.

Jamie D. Hoffman of Langston, Hess & Daniels, P.A., Maitland, for appellants.

O. John Alpizar of Palm Bay; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee.

MINER, Judge.

The employer/carrier (e/c) files this appeal from the final order issued by the deputy commissioner (dc): (1) awarding claimant temporary total disability benefits (TTD), (2) authorizing Dr. Weiss and awarding payment of his bills, (3) awarding TTD benefits indefinitely, and (4) awarding penalties on all past due TTD benefits. We affirm in part, reverse in part and remand with instructions.

On June 14, 1983, claimant was injured in a compensable accident while employed as a nurse's aide by Carnegie Gardens Nursing Home. She has received workers' compensation benefits since the accident and has not returned to work. Since her accident, she has been treated by a succession of orthopedic physicians and, shortly after the accident, she was also examined by physicians at Melbourne Neurologic Center who could discover no neurological basis for her complaints.

On April 1, 1987, claimant's attorney sent a letter to the e/c through their attorney seeking authorization for another neurological evaluation of claimant, this time by Dr. Weiss. The attorney requested some response from the e/c by April 15. The following day, claimant filed a claim for compensation benefits and sought authorization for an evaluation by Dr. Weiss and a hearing on that matter. Additionally, her attorney again wrote to counsel for the e/c stressing claimant's need for a neurological assessment.

On July 1, e/c's counsel wrote to claimant's attorney suggesting an evaluation by another orthopedic surgeon rather than by a neurologist. On October 5, 1987, claimant, without authorization, placed herself in Dr. Weiss' care for purposes of diagnosis and treatment. Four days later, over six months after claimant's attorney initially sought Dr. Weiss' authorization, e/c's counsel responded by letter in which he advised that an agreement could probably be reached on authorization of a neurologist but that Dr. Weiss was "definitely not acceptable."

In due course, a hearing was held on claimant's claim and on March 29, 1988, the dc entered the order which is the subject of this appeal.

With respect to that portion of the dc's order authorizing Dr. Weiss and awarding payment of his bills we find no fault and therefore affirm. There is competent, substantial evidence in the record to support this award. Redding v. Cobia Boat Co., 389 So.2d 1003 (Fla.1980). We also find competent, substantial evidence in the record for the award to claimant of TTD benefits. However, the decretal portion of the order awarding such benefits through the present "and continuing" is improper because it is too indefinite and fails to take into account that TTD status ends when a claimant reaches maximum medical improvement (MMI) or is able to return to work. Tavares Grove Care v. Simmons, 417 So.2d 1175 (Fla. 1st DCA 1982).

Were it not for the fact that we must reverse and remand on the remaining issue, we would correct the error in the TTD benefits award ourselves by modification as was done in Tavares Grove Care rather than by reversal and remand. However, since we find that the dc erred in establishing a beginning date for computing the penalties he awarded, on remand he can address all matters which remain unresolved consistent with this opinion.

In decretal paragraph 2) of his order, the dc established April 1, 1987 as the date from which penalties should be assessed against the e/c for nonpayment of TTD benefits. In this regard, the case of Plymouth Citrus Products v. Jackson, 417 So.2d 294 (Fla. 1st DCA 1982) is instructive. There, the claimant had an industrial accident on January 17, 1980 for...