Commercial Carrier Corp. v. LaPointe, 97-2631.

• Decision Date: 13 January 1999
• Docket Number: No. 97-2631.,97-2631.
• Citation: 723 So.2d 912
• Parties: COMMERCIAL CARRIER CORP. and Comcar Industries, Inc., Appellants, v. Richard LaPOINTE, Appellee.
• Court: Florida District Court of Appeals

723 So.2d 912

COMMERCIAL CARRIER CORP. and Comcar Industries, Inc., Appellants, v. Richard LaPOINTE, Appellee.

No. 97-2631.

District Court of Appeal of Florida, First District.

January 13, 1999.

Kevin G. Malchow and Erin E. Kelling of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellants.

Michael B. Murphy, Winter Haven, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.

BENTON, J.

Richard LaPointe suffered accidents while at work for Comcar Carrier Industries, Inc. (Comcar) on December 1, 1985, October 21, 1989, and September 5, 1991. Comcar and Commercial Carrier Corporation (CCC) appeal an order awarding Mr. LaPointe payment for a medical evaluation he underwent, temporary wage-loss benefits, permanent wage-loss benefits, permanent total disability benefits, and future medical benefits. Also arguing that the judge of compensation claims erred in determining a point of maximum medical improvement, Comcar and CCC seek to overturn all these awards.¹ We affirm the award of payment for the medical evaluation, the award of permanent wage-loss benefits for the period from November 2, 1995, through April 11, 1996, and the award of permanent total disability benefits. But we reverse the award of temporary wage-loss benefits, the award of permanent wage-loss benefits for the period from April 12, 1996, to March 12, 1997, and the award of future medical benefits. We conclude that the error as to maximum medical improvement was harmless.

Psychiatric Evaluation

The industrial accidents injured Mr. LaPointe's back, arms, wrists, right shoulder, right ankle, and right knee. Questions arose about psychological problems, as well. On June 6, 1995, Mr. LaPointe requested a psychiatric evaluation. CCC and Comcar responded by offering an evaluation only if the physician they had authorized to treat Mr. LaPointe's physical maladies should conclude that he needed to be evaluated by a psychiatrist. CCC and Comcar did not unconditionally authorize a psychiatric evaluation until April 19, 1996. By that time, Mr. LaPointe had gone on his own to see a Dr. McClane, who performed a psychiatric evaluation in November of 1995.

Dr. McClane's $675 bill for the evaluation is at issue. A petition for benefits sought payment and the parties listed this bill as at issue in the pretrial stipulation. See Citrus World, Inc. v. Mullins, 704 So.2d 128 (Fla. 1st DCA 1997)

. CCC and Comcar argue that they should not have to pay for the psychiatric evaluation Dr. McClane performed because they offered a psychiatric evaluation by another psychiatrist. The rule is that

the employee is required to request the care sought. If the employer/carrier fails or neglects to provide the treatment, the employee may seek the treatment without first obtaining an order from the deputy commissioner. The employee does so at the peril of having the deputy commissioner later rule that such treatment was not reasonable and necessary. See Fuchs Baking Company v. [Estate of] Szlosek, 466 So.2d 415 (Fla. 1st DCA 1985).

Hill v. Beverly Enters., 489 So.2d 118, 120 (Fla. 1st DCA 1986). In the present case, CCC and Comcar "failed or neglected to provide" a psychiatric evaluation in a timely fashion. Nor did they seek a ruling from the judge of compensation claims as to the need for a psychiatric evaluation. CCC and Comcar do not question on appeal the finding that a psychiatric evaluation was reasonable and medically necessary. There is no basis for disturbing the award of payment for Dr. McClane's evaluation.

Temporary Wage-Loss Benefits

The judge of compensation claims awarded temporary wage-loss benefits and future medical benefits, even though no such benefits were listed as being at issue in the pretrial stipulation. Nor was any entitlement to temporary benefits or future medical benefits tried by consent of the parties.²

As to each class of benefits, "[b]ecause the claimant did not specifically request this class of benefits, and the matter was not otherwise clearly placed at issue, we reverse the award." Florida Power Corp. v. Hamilton, 617 So.2d 333, 333 (Fla. 1st DCA 1993). See also Lakeside Baptist Church v. Jones, 714 So.2d 1188 (Fla. 1st DCA 1998)

.

An order that is not in accord with the understanding with which the workers' compensation hearing was undertaken and participated in is a denial of due process and must be reversed. Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980). A JCC should not award benefits which are beyond the scope of the hearing. Kaplan Industries, Inc. v. Rowlett, 565 So.2d 404 (Fla. 1st DCA 1990).

Southeast Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994). "Due process concerns preclude a ruling on matters which have not been placed at issue, since the parties are entitled to notice so that they may fairly present their case." Cottongim, Id. (citing Hamilton, 617 So.2d at 334).

Permanent Wage-Loss Benefits

Sections 440.191 and 440.192, Florida Statutes (1995), contemplate that a judge of compensation claims will entertain a claim for benefits only after the claim has been set out first in a request for assistance and then in a petition for benefits. CCC and Comcar argue, therefore, that the judge of compensation claims had no jurisdiction to award wage-loss benefits because neither Mr. LaPointe's petition for benefits nor his antecedent request for assistance sought these benefits.

We have held that, where the parties agree, the judge of compensation claims may allow trial of new claims "sufficiently connected to" claims that, having been the subject of a request for assistance and a petition for benefits, are properly at issue. See Sabal Transp. v. Brooks, 666 So.2d 1032, 1033 (Fla. 1st DCA 1996)

. Comcar contends, however, that the subsequent adoption of Florida Rule of Workers' Compensation 4.028(5)(b) undermines Sabal. The rule provides:

A petition cannot be amended except by stipulation of the parties and approval of the judge. Such an amended petition shall not be subject to the informal dispute process or review by a docketing judge.

As we read the rule, it is consistent with our holding in Sabal. It is "the policy of law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes. See Spitzer v. Bartlett Bros. Roofing, 437 So.2d 758, 760 (Fla. 1st DCA 1983)

." Citrus World, Inc. v. Mullins, 704 So.2d 128, 128 (Fla. 1st DCA 1997). A pretrial stipulation that identifies for trial even a "connected" issue not previously raised operates—once the pretrial stipulation is approved by the judge of compensation claims—as an amendment of the petition for benefits.

In the present case, the parties stipulated that the issue of wage-loss benefits for the period prior to entry of the pretrial stipulation, which was approved on April 11, 1996, would be tried. At the merits hearing, when counsel for CCC and Comcar reiterated the agreed temporal limitation, the judge of compensation claims addressed claimant's counsel, "So what he's saying is your wage loss would cut as of the pre-trial stip." Claimant's counsel responded, "If that's what he wants, that's fine." Yet the judge of compensation claims awarded wage-loss benefits from November 2, 1995, through March 17, 1997. In awarding wage-loss benefits for any period after³ April 11, 1996, the judge of compensation claims erred. We therefore reverse the award of wage-loss benefits for periods subsequent to April 11, 1996, but affirm the award of wage-loss benefits for the period November 2, 1995, through April 11, 1996, the date of the pretrial order.⁴

Permanent Total Disability Benefits

Sixty years old at the time of the final hearing, Mr. LaPointe had driven a truck for thirty-six years. Although he had an eighth grade education, tests indicated he was only marginally literate and was not a candidate for further education or for vocational training because he functioned at the low end of the intellectual range. His only significant work experience was as a truck driver.

Physicians restricted him permanently from sitting or driving for more than thirty minutes at a time, bending, lifting more than fifteen pounds, and from walking for more than a quarter of a mile at a stretch. Mr. LaPointe, who had to undergo surgery more than once on account of his industrial accidents, was assigned a permanent⁵ impairment rating of 15.5%. Dr. Finley, a vocational evaluator, testified that Mr. LaPointe was not employable, taking his significant physical and vocational limitations into account. The judge of compensation claims found that Mr. LaPointe had in good faith performed "a valid and comprehensive job search" during which he had unsuccessfully contacted over two hundred employers.

After this extensive but unsuccessful job search, however, Comcar offered him a position as a night watchman in June of 1995. The position was never advertised and did not, indeed, exist prior to being offered to Mr. LaPointe. He accepted the job and was allowed to work less than the set hours, to arrive late, or to leave early—in effect to regulate his own hours.

Although he was found sleeping on the job, he retained his employment. He was asked to make rounds, but was not required to if he felt he was unable to, nor was he required to keep a record of rounds made or missed. No one filled in when Mr. LaPointe was absent, even when he was absent for four months running.

The cases recognize three ways to prove entitlement to permanent total disability benefits on account of industrial accidents occurring before January 1, 1994:(1) evidence of permanent medical incapacity to perform even light work uninterruptedly; (2) evidence of permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) evidence of permanent work-related physical restrictions that, while not alone totally disabling,⁶ do preclude performing light work uninterruptedly, when...