Curry v. Miami Dolphins, Ltd.

• Citation: 13 Fla. L. Weekly 814,522 So.2d 1010
• Decision Date: 30 March 1988
• Docket Number: No. BR-5,BR-5
• Parties: 13 Fla. L. Weekly 814 Emory CURRY, Appellant, v. MIAMI DOLPHINS, LTD., INA/Aetna, and Division of Workers' Compensation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1010

522 So.2d 1010

13 Fla. L. Weekly 814

Emory CURRY, Appellant, v. MIAMI DOLPHINS, LTD., INA/Aetna, and Division of Workers' Compensation, Appellees.

No. BR-5.

District Court of Appeal of Florida,

First District.

March 30, 1988.

Rehearing Denied April 28, 1988.

Howard L. Silverstein, Miami, for appellant.

Karen M. Gilmartin of Adams, Kelley & Kronenberg, Miami, for appellees.

NIMMONS, Judge.

Claimant appeals from an order denying his claim for wage-loss benefits. We affirm.

Claimant, while working as a custodian at the Orange Bowl Stadium on November 14, 1983, sustained a compensable industrial accident when he slipped on some grease and fell to the floor. Claimant sustained injuries to his head and lower back as well as a hearing loss in his right ear and a loss of his sense of smell and taste. Temporary total disability benefits were paid from November 15, 1983 to March 17, 1984, and wage-loss benefits were paid from March 19, 1984 to June 30, 1984.

Appellant subsequently filed a claim for wage-loss benefits for the period of May through October 1986. In the appealed order, the deputy commissioner denied appellant's claim for wage-loss benefits based upon his findings that the claimant (1) had no permanent physical impairment and (2) had failed to conduct an adequate job search.

In support of his finding of no permanent impairment, the deputy relied solely on the testimony of Dr. Wayne Tobin, an examining physician. Dr. Tobin, a neurologist, saw the claimant in January, February and March of 1986. Dr. Tobin found no objective evidence to support either a neurological injury or the claimant's complaints of dizziness, back pain and loss of sense of smell and taste. Dr. Tobin opined that the claimant would not be left with a permanent physical impairment and would not be restricted in any way.

Three other physicians, however, testified that claimant would in fact be left with a permanent impairment and these physicians imposed medical restrictions. Dr. Fields, an ear, nose and throat specialist, testified that he saw the claimant once in August 1986. Dr. Fields conducted a hearing test which indicated that the claimant had a hearing loss in the high frequency range. The doctor was not able to rule out a relationship between the hearing loss and the industrial injury. Dr. Fields opined that the claimant was unrestricted, except that the claimant would experience problems with dizziness if he were forced to turn his head around too quickly. It was Dr. Fields' opinion that maximum medical improvement was achieved sometime before he saw claimant and that claimant would be left with a 1% impairment of the whole man strictly for the hearing loss.

Dr. Victor Barredo, an unauthorized neurologist, saw the claimant on five separate occasions between February and October 1986. Dr. Barredo testified that the claimant would be left with an 8 to 10% impairment of the whole man based on the A.M.A. Guides due to the claimant's vertigo problem as well as the loss of his sense of smell and taste. Dr. Barredo restricted the claimant from working as a driver, working around high places or heavy machinery, or working eight hours per day in sunlight or around noise. Claimant was also restricted from lifting above twenty-five pounds. Dr. Barredo indicated that the claimant would not be precluded from returning to his original employment as a custodian, provided it did not involve a lot of heavy lifting.

Dr. Steven Kobetz, claimant's treating physician, also a neurologist, first saw the claimant on November 28, 1983, and last saw him on November 14, 1985. Dr. Kobetz opined that maximum medical improvement was attained on July 9, 1984, with a 5% whole man impairment under the A.M.A. Guides. He restricted the claimant from engaging in any occupation which would require him to do a lot of turning or climbing. Dr. Kobetz, like Dr. Barredo, also restricted claimant from being employed as a driver. Such activities, according to Dr. Kobetz, could precipitate episodes of vertigo.

Appellant maintains that the deputy erred in accepting the testimony of Dr. Tobin over the testimony of the other physicians without setting forth in his order his reasons for doing so. We find that, under the facts of this case, appellant's argument has merit.

It is well established that in the determination of claims for workers' compensation, it is the deputy's function to determine credibility and resolve conflicts in the evidence,...