City of West Palm Beach Fire Dept. v. Norman, 97-1904
| Decision Date | 27 May 1998 |
| Docket Number | No. 97-1904,97-1904 |
| Parties | 23 Fla. L. Weekly D1310 CITY OF WEST PALM BEACH FIRE DEPT. and Johns Eastern, Appellants, v. Ernie NORMAN, Appellee. |
| Court | Florida District Court of Appeals |
Douglas W. Barnes of George, Hartz, Lundeen, Flagg & Fulmer, Fort Lauderdale, for Appellants.
Gerald A. Rosenthal of Rosenthal & Weissman and Randy D. Ellison, West Palm Beach, for Appellee.
The employer/carrier appeal from an order of the judge of compensation claims awarding the claimant temporary partial disability benefits, granting authorization for treatment by a second physician, granting authorization for diagnostic tests, and awarding costs. We affirm the order as to the claims for medical treatment and diagnostic testing and reverse as to the remaining claims.
The claimant suffered two compensable accidents during his employment as a firefighter with the City of West Palm Beach. On June 13, 1990, the claimant injured his left forearm and on November 6, 1993, the claimant injured his right knee. As a result of the knee injury, the claimant retired on a duty disability retirement in July 1994.
A dispute arose regarding the claimant's entitlement to workers' compensation benefits. The claimant filed a petition for benefits seeking: (1) temporary partial disability benefits from August 1, 1994, through the present and continuing; (2) authorization and payment of Dr. Montijo to treat the claimant's left forearm injuries sustained on June 13, 1990; (3) authorization for payment of MRI, EMG and Nerve Conduction studies for the claimant's left forearm as per Dr. Montijo's recommendation; (4) authorization for second opinion and payment of future medical care by Dr. Cooney, orthopedic surgeon for the knee; and, (5) payment of costs. In response the employer/carrier contended that the claimant was at maximum medical improvement for both accidents, that the claimant submitted his wage loss forms late, that the claimant had voluntarily limited his income, that Dr. Montijo is an unauthorized physician with regards to the claimant's forearm injury, and that the diagnostic tests were unnecessary.
The judge of compensation claims found that the claimant was entitled to temporary partial disability benefits from February 4, 1995, through the present and continuing. The judge further found that the claimant had not reached maximum medical improvement for the forearm injury and authorized treatment with Dr. Montijo. Authorization for the diagnostic tests and payment of costs was also granted. Lastly, the judge found that the claimant had not voluntarily limited his income and that the claimant had submitted adequate wage loss forms.
It is well established that the judge of compensation claims determines credibility, resolves conflicts in the evidence, and may accept the testimony of one physician over that of several others. See Curry v. Miami Dolphins, Ltd., 522 So.2d 1010 (Fla. 1st DCA 1988); Days Inn/Days Suites v. Thomas, 623 So.2d 529 (Fla. 1st DCA 1993). Based on these principles, we affirm the decision to require the employer/carrier to pay for medical treatment and further diagnostic testing. The judge of compensation claims was entitled to accept the testimony of Dr. Montijo on this point despite the conflicting testimony of the treating physician, Dr. Kohn.
However, we conclude that the judge erred in finding that the claimant did not voluntarily limit his income. After retiring from the fire department, the claimant started a billiard supply business from his home. He testified that he did not advertise or solicit business. Instead, he relied on past customers to a billiard supply business that he had run part-time while with the fire department. The claimant had no regular customers and did nothing to generate business. He also had no set hours and would simply work when someone called him. Over approximately a year and five months, the claimant earned approximately $5,137.00.
We have previously held that "whether a...
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