Christopher v. Dobbs Houses, Inc.

• Decision Date: 08 March 1982
• Docket Number: No. AB-339,AB-339
• Citation: 411 So.2d 267
• Parties: Tilus CHRISTOPHER, Appellant, v. DOBBS HOUSES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 267

411 So.2d 267

Tilus CHRISTOPHER, Appellant, v. DOBBS HOUSES, INC., Appellee.

No. AB-339.

District Court of Appeal of Florida, First District.

March 8, 1982.

Rehearing Denied April 7, 1982.

L. Barry Keyfetz, of Keyfetz & Poses, Miami, for appellant.

H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellee.

WENTWORTH, Judge.

Claimant seeks review of a workers' compensation order which we affirm except as to the denial of a witness fee and the further denial of "all claims ... which could have been made...."

The deputy refused to award as costs a fee for the testimony of claimant's doctor, reasoning that such a fee was unwarranted "since his testimony was submitted in support of claim for his bill which was denied." However, claimant did secure an award of temporary disability benefits, and while the doctor's testimony was propounded primarily in connection with the claim for payment of his medical bill the doctor did also testify regarding claimant's disability, the course of treatment furnished, and the causal etiology of claimant's condition. Such testimony was relevant to employer/carrier's general denial of the claim for temporary benefits. Since claimant prevailed on this issue, and the doctor's testimony was relevant thereto, a witness fee should have been awarded as costs pursuant to §§ 440.34(2) and 440.31, Florida Statutes, even though the deputy may not have relied on the witness's testimony. See Stich v. Independent Life & Accident Insurance Co., 139 So.2d 398 (Fla.1962).

Claimant initially presented a claim for wage-loss benefits pursuant to § 440.15(3)(b). During the course of the hearing the deputy expressly allowed claimant to withdraw this claim "without prejudice." In these circumstances the deputy may not preclude the resubmission of such a claim by denying "all claims ... which could have been made...."

The order appealed is affirmed in part and reversed in part, and the cause is remanded.

MILLS, J., concurs.

THOMPSON, J., dissents and concurs with opinion.

THOMPSON, Judge, dissenting in part and concurring in part.

I would affirm the deputy commissioner's denial of a witness fee to Dr. Turke.

The testimony of Dr. Turke neither could nor did affect the issue of whether the claimant was entitled to additional temporary total disability (TTD) benefits. At or before the initial hearing held December 23, 1980, the parties stipulated that the claimant reached maximum medical improvement (MMI) on December 24, 1979. Therefore, when Dr. Turke testified at the second hearing on February 3, 1981, the issues as to the MMI date and the period for which TTD benefits were due had already been resolved by agreement of the parties.

Even if the parties had...