Commercial Carrier Corp. v. Zellers
| Decision Date | 08 April 1991 |
| Docket Number | No. 90-1732,90-1732 |
| Parties | 16 Fla. L. Weekly D1009, 16 Fla. L. Weekly D1431 COMMERCIAL CARRIER CORPORATION, Appellant, v. Wayne A. ZELLERS, Appellee. |
| Court | Florida District Court of Appeals |
Richard S. Thompson of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellant.
Susan W. Fox of MacFarlane, Ferguson, Allison & Kelly, Tampa, and Dean Burnetti of H. Guy Smith, P.A., Lakeland, for appellee.
The self-insured employer appeals, and claimant cross appeals, a workers' compensation order by which claimant was awarded rehabilitation and wage-loss benefits with deemed earnings. Wage-loss benefits were denied during a two month period when claimant was suffering from an exacerbation of a preexisting disease. We find that the record provides adequate support for the benefits which were awarded, and for the determination below that neither the preexisting disease nor the exacerbation thereof was shown to be a compensable consequence of the industrial injury. But we also find that the claim for wage-loss benefits should not have been denied, due to the absence of a work search, during the two months when claimant was suffering from the exacerbation of the preexisting disease. And because the challenged order is somewhat confusing and inconsistent, it is necessary for us to remand for further clarification.
Even though the exacerbation of claimant's preexisting disease may have been independently disabling during the two months for which the claim was denied, this does not necessarily preclude an award of wage-loss benefits. See Curtis v. Bordo Citrus Products, 566 So.2d 328 (Fla. 1st DCA 1990); Spaulding v. Albertson's, 543 So.2d 858 (Fla. 1st DCA 1989); Koulias v. Tarpon Marine Ways, 538 So.2d 130 (Fla. 1st DCA 1989). As indicated in these cases, such circumstances present an evidentiary question as to whether claimant's compensable injury contributed to his disability, apart from any separate effect of the noncompensable condition. See also, Parish v. Baptist Hosp., 512 So.2d 1031 (Fla. 1st DCA 1987); Central Concrete There were conflicting medical opinions as to claimant's attainment of maximum medical improvement, and as to the extent or existence of any permanent impairment. The resolution of these conflicts is within the ambit of the fact-finding authority of the judge below. See e.g., Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965); Kemp v. Miami Quality Concrete Co., Inc., 410 So.2d 199 (Fla. 1st DCA 1982). This determination is largely a matter of discretion which ordinarily will not be disturbed on appeal if there is substantial medical evidence to support the challenged ruling. See Griffith v. McDonalds, 526 So.2d 1032 (Fla. 1st DCA 1988). The judge was thus entitled to accept Dr. Pfaff's opinion as to the date of claimant's maximum medical improvement. And there is sufficient evidence to establish that claimant's injury produced a permanent impairment, as required for wage-loss benefits under section 440.15(3)(b)1, Florida Statutes. Although the appealed order makes no express finding in this regard, it does state that "[a]ll the treating physicians find lifting limitations and restrictions." But it also acknowledges that Dr. Pfaff opined that claimant had reached maximum medical improvement with "no permanent partial impairment." The order then recites the judge's acceptance of Dr. Pfaff's testimony, and the "great weight" given to his opinion over the other medical testimony. While this recitation may have been intended to apply only to Dr. Pfaff's opinion as to maximum medical improvement, such a restrictive interpretation is not entirely consistent with the unqualified language used in the order. It is essential that a workers' compensation order contain such findings of ultimate material fact as will demonstrate the basis of the award. See Carson v. Gaineswood Condominiums, ...
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