Corral v. McCrory Corp.

• Citation: 228 So.2d 900
• Decision Date: 19 November 1969
• Docket Number: No. 37944,37944
• Parties: Margaret CORRAL, Petitioner, Cross-Respondent, v. McCRORY CORPORATION, Consolidated Mutual Insurance Company and the Florida Industrial Commission, Respondents, Cross-Petitioners.
• Court: United States State Supreme Court of Florida

Page 900

228 So.2d 900

Margaret CORRAL, Petitioner, Cross-Respondent, v. McCRORY CORPORATION, Consolidated Mutual Insurance Company and the Florida Industrial Commission, Respondents, Cross-Petitioners.

No. 37944.

Supreme Court of Florida.

Nov. 19, 1969.

Dan G. Wheeler, Jr., of Wheeler & Evans, Miami, for petitioner, cross-respondent.

Howard N. Pelzner, Miami, for respondents, cross-petitioners.

Patrick H. Mears and J. Franklin Garner, Tallahassee, for Florida Industrial Commission, respondent.

BOYD, Justice.

This cause is before us on petition and cross-petition for writ of certiorari to the Florida Industrial Commission.

Petitioner injured her back when she slipped and fell on some grease while checking a food supply for the employer's restaurant. She was provided medical care and treatment by Doctors Eney and Neal. Doctor Eney discharged claimant on December 9, 1964, as having reached maximum medical improvement with an anatomical disability of 5%. Prior to this date, claimant had returned to work on a part-time basis and continued in this status, that is, working on a part-time basis for her employer until December 16, 1966, exclusive of certain periods when she was either in the hospital or totally disabled by reason of the injury.

Claimant continued under the care of Doctor Neal after having been discharged by Doctor Eney and was seen by Doctor Neal on 64 occasions during which she was provided physical therapy and, on one occasion, admitted to the hospital for myelographic study. Doctor Neal discharged claimant on April 11, 1966, with an anatomical disability of 10% Of the body as a whole.

Claim was filed alleging that the rating of Doctor Eney was premature; that actual recover was April 11, 1966, and requesting the Judge of Industrial Claims to compensate claimant for temporary partial disability during the period prior to April 11, 1966.

The Judge of Industrial Claims ruled that claimant reached maximum medical recovery on April 11, 1966, and sustained a 25% Permanent partial disability of the body as a whole based on wage earning capacity loss. The Full Commission affirmed the award of 25%, but reversed that portion of the Judge's order which held claimant's maximum medical recovery to be April 11, 1966, rather than the original date of December 9, 1964. The Full Commission held that all treatment afforded by Doctor Neal was palliative in nature and that all this treatment was undergone subsequent to December 9, 1964, with no reasonable expectation of further improvement.

Petitioner contends that the Full Commission, in reversing the determination of the date of maximum medical improvement, has misconstrued and misapplied the law.

The employer-carrier in its cross-petition contends that the Full Commission in affirming the award of 25% Permanent partial disability has failed to consider the variables set out in Ball v. Mann, 75 So.2d 758 (Fla.1954) and Bell v. Southern Bell, Tel. & Tel. Co., 152 So.2d 473 (Fla.1963).

Claimant testified on January 16, 1967, that her condition was essentially the same as it had been in 1964. Dr. Neal, who treated claimant during the two years in question, testified on cross-examination:

'Q. If this woman has testified and the Judge should choose to believe her, and there is no reason for him to disbelieve her--to the effect that on January 16, 1967, she felt essentially the same as she did when discharged by Dr. Eney on December 9, 1964, would you consider that that time of reaching maximum recovery from the original accident was more appropriate than the one you gave?

'* * *

'A. If she had not improved on the basis of her pain, I would say there had been no improvement in the interval.

'Q. In other words, if she said she was about the same, then your treatment was more palliative than curative.

'A. That is correct.'

Based on the foregoing statement of Dr. Neal, the Full Commission ruled:

'It is apparent, in view of the above testimony, that Dr. Neal has reclassified his treatment of the claimant as Palliative which, in our opinion, is an admission that the claimant's maximum medical recovery was reached on December 9, 1964, since Palliative treatment presupposes, from a medical standpoint, that the patient can get no better. This being the case, the periods that the judge awarded claimant compensation for temporary partial disability and temporary total disability subsequent to December 11, 1964 (sic), must be...