City of Melbourne v. Haddock

• Decision Date: 02 November 1988
• Docket Number: No. 88-903,88-903
• Parties: 13 Fla. L. Weekly 2429 CITY OF MELBOURNE and Old Dominion Insurance Company, Appellants, v. Dannie M. HADDOCK and Rockwood Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 301

533 So.2d 301

13 Fla. L. Weekly 2429

CITY OF MELBOURNE and Old Dominion Insurance Company, Appellants, v. Dannie M. HADDOCK and Rockwood Insurance Company, Appellees.

No. 88-903.

District Court of Appeal of Florida,

First District.

Nov. 2, 1988.

Frank Marriott, Jr. and Keith C. Warnock of Cameron, Marriott, Walsh & Hodges, P.A., Daytona Beach, for appellants.

Edward J. Richardson of Saxon & Richardson, P.A., Melbourne, for appellee Dannie M. Haddock.

Thomas A. Koval and Carla S. Mitchell of Moss, Henderson & Lloyd, P.A., Vero Beach, for appellee Rockwood Ins. Co.

PER CURIAM.

This cause is before us on appeal of an order awarding temporary total disability benefits, payment of medical bills, remedial care, attorney fees, and costs. Appellants raise three issues for our consideration: (1) whether the deputy commissioner should have dismissed the claim for lack of prosecution, (2) whether competent, substantial evidence supports the deputy's order apportioning liability for benefits between the two carriers, and (3) whether the deputy erred in ordering the first carrier to reimburse the second based on claimant's average weekly wage at the time of the second accident.

Claimant, a 41-year-old fire fighter, suffered a back injury in February 1983 when he fell off a fire truck. He was treated conservatively by Dr. Pigg, who faultily performed a myelogram which did not reveal the true extent of claimant's disc injury. After six months, claimant returned to work but continued to experience periodic pain.

In June 1985, claimant suffered a serious hip injury when he fell into a hole during a fire. Subsequent diagnosis by Dr. Vliegenthart revealed that he had preexisting asymptomatic avascular necrosis. Claimant's hip had to be replaced, and once surgery healed enough for the hip pain to lessen, claimant realized he had an entirely separate pain in his back. Subsequent examination revealed a severely herniated disc. Dr. Vliegenthart removed the disc and testified that, within reasonable medical probability, claimant suffered a herniated disc from the first injury which was reinjured when claimant shattered his hip during the second accident. At the time of hearing below, claimant had not reached maximum medical improvement for the disc injury, although he had for the hip injury.

Appellant tried to dismiss the claim for lack of prosecution under Florida Workers' Compensation Rule of Procedure 4.110(b). The deputy denied the motion after hearing evidence that claimant was hospitalized for approximately four months of the time that no record activity occurred. Another procedural question involved the City of Melbourne switching insurance companies between claimant's first and second injuries. Appellant Old Dominion Insurance Company (Old Dominion) was the carrier at the time of the 1983 injury, but appellee Rockwood Insurance Company (Rockwood) was the carrier at the time of the second injury. Rockwood successfully sought reimbursement from Old Dominion for benefits paid claimant that were ruled attributable to the first injury.

We affirm the deputy's ruling on the first issue. Cases construing Florida Rule of Civil Procedure 1.420(e) are applicable in interpreting Florida Workers' Compensation Rule of Procedure 4.110(b). Kinsey v. Skyline Corporation, 395 So.2d 626, 627-628 (Fla. 1st DCA 1981). Numerous cases have held, on less substantial showings of disability than that demonstrated below, that dismissal is unwarranted when a party is medically disabled during a substantial portion of the period in question. Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977); Schlakman v. Helliwell, Melrose & DeWolf, 519 So.2d 14 (Fla. 3d DCA 1987), and cases cited therein. The instant record reveals that, in addition to being hospitalized for several months, claimant was recovering from severe and painful injuries. As a standard for reversal of a ruling on dismissal for lack of prosecution is abuse of discretion, Regal Wood Products, Inc. v. Mendez, 432 So.2d 141 (Fla. 1st DCA 1983), Riesgo v. Weinstein, 523 So.2d 752 (Fla. 2d DCA 1988), we affirm.

It appears from the record that although claimant reached maximum medical improvement (MMI) for the hip injury in March 1987, he has not reached MMI for the back injury. A deputy commissioner may apportion benefits after a claimant reaches MMI. Florida Insurance Guaranty Association v. Fibercon Industries, 491 So.2d 566 (Fla. 1st DCA 1986). If the parties had raised this issue, the deputy would properly have been required to withhold ruling on apportionment until MMI occurred. However, because this technical argument was not raised below or in this court, we will not base our decision on it. Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); B & J Windows v. Sweitzer, 420 So.2d 363 (Fla. 1st DCA 1982); A & J Tie Beam Service v....