Dan's Plumbing v. Smith, AC-387

Decision Date28 January 1982
Docket NumberNo. AC-387,AC-387
Citation410 So.2d 941
PartiesDAN'S PLUMBING and CNA Insurance, Appellants, v. Robert SMITH, Jr., Appellee.
CourtFlorida District Court of Appeals

Peter C. Burkert, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.

John Larson Lund, Fort Myers, for appellee.

WIGGINTON, Judge.

The claimant/appellee in this workers' compensation appeal suffered a compensable accident on August 27, 1979, for which he was awarded temporary total disability (TTD) benefits. Claimant received these benefits from the date of the accident until they were terminated by the carrier on November 18, 1980. During that period of time, claimant was being treated by an authorized physician, Dr. Gardner, who was advising claimant not to return to work.

On October 9, 1980, however, claimant was referred by the carrier to a second physician, Dr. Angelides, who upon examining claimant concluded that he had reached maximum medical improvement (MMI) and was free of any disability based on his injury of August 27, 1979. On the basis of Dr. Angelides' determination of MMI, the carrier terminated claimant's TTD benefits. However, at that time it did not undertake to unilaterally de-authorize Dr. Gardner. Consequently, claimant continued to receive physical therapy from Dr. Gardner, who was still advising him not to return to work.

Dr. Gardner was not de-authorized by the carrier until March 16, 1981, the date of the hearing of claimant's claim for payment of unpaid medical bills and for benefits from November 18, 1980. It was claimant's contention at the hearing that he had not reached MMI, based on Dr. Gardner's opinion to the same effect. The deputy commissioner, however, accepted Dr. Angelides' opinion as to MMI. Nevertheless, because of the dilemma that faced the claimant in having to choose between the advice given by two "authorized" physicians as to his ability to return to work, the deputy awarded claimant TTD benefits from the date they were terminated by the carrier until the date of the hearing. Although we agree that claimant was placed in a perplexing and inequitable position, we hold that the deputy commissioner erred as a matter of law.

It is axiomatic under workers' compensation law that except under unusual circumstances not present here, the date of MMI marks the end of temporary disability benefits and the beginning of other disability benefits that may be due under the statute. Broward County Board of County Commissioners v. Damore, 391 So.2d 286 (Fla. 1st DCA 1981); Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981). Accordingly, the deputy commissioner erred in awarding TTD benefits beyond October 9, 1980, the date that Dr. Angelides determined claimant had reached MMI.

However, the carrier had a responsibility to de-authorize its designated physician, Dr. Gardner, upon its acceptance of Dr. Angelides' determination of MMI, and a duty to notify claimant of his possible entitlement to wage-loss benefits. See sections 440.13(2) and 440.185(10), Florida Statutes (19...

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7 cases
  • Flesche v. Interstate Warehouse, AD-327
    • United States
    • Florida District Court of Appeals
    • 15 Marzo 1982
    ...may ultimately be expected of him. This was recently illustrated by the plight of the claimant in Dan's Plumbing and CNA Insurance v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982), in which the claimant relied upon a treating physician, who advised him not to return to work, only to be confronte......
  • Shop & Go, Inc. v. Copeland
    • United States
    • Florida District Court of Appeals
    • 5 Octubre 1989
    ...Indus., 491 So.2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt and DuMont/Hit Sales, 483 So.2d 848 (Fla. 1st DCA 1986); Dan's Plumbing v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982). We direct that the order be modified to award temporary partial disability benefits for total wage loss during thes......
  • Christian v. Greater Miami Academy
    • United States
    • Florida District Court of Appeals
    • 28 Marzo 1989
    ...Indus., 491 So.2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt and Dumont/Hit Sales, 483 So.2d 848 (Fla. 1st DCA 1986); Dan's Plumbing v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982). In regard to the denial of PTD or WL benefits, we agree that the deputy's determination of an MMI date of October 3......
  • Emergency One, Inc. v. Williams
    • United States
    • Florida District Court of Appeals
    • 9 Mayo 1983
    ...to the record. Cf., Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981); and Dan's Plumbing v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982).2 Dr. Freed continued to treat claimant regularly, and on December 11, 1981 (apparently the last visit before the hearing),......
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